Can I Sue For Medical Malpractice After Being Placed In Isolation For COVID-19?

Our law firm has been flooded with questions people have about the legal realities of the fight against the novel coronavirus and the disease it causes — COVID-19. People want to know if they can sue a person or organization for gross negligence after transmission occurs. For the most part, the answer is no. Others want to know whether or not they can sue a caretaker for placing them in isolation. 

The answer to this question is more complicated than the last.

First, it’s important to understand the reasons why people are being asked to lockdown, quarantine, social distance, or self-isolate during the viral outbreak. This is a new situation none of us has ever had to deal with before, and many people aren’t taking it seriously because they don’t understand the severity of the outbreak.

To put it into perspective, there are a few simple facts you should know:

  • Reproduction rates help us understand the potential for an infection to move from one person to the next.
  • The coronavirus responsible for causing the virus COVID-19 has a much higher reproduction rate than both the seasonal flu and the Spanish flu, which is responsible for causing one of the most widespread and deadliest pandemics in human history.
  • Fatality rates provide us with a basic idea of how many people succumb to the disease, but they are very difficult to nail down accurately. It will be a long time before we know the exact fatality rate of COVID-19.
  • What we do know is that the fatality rate of COVID-19 is probably between 1 and 3 percent. That makes it far deadlier than the seasonal flu and comparatively deadly to the Spanish flu.
  • Fatality percentages don’t provide information about how many people will eventually die from this virus. This is determined by a combination of the fatality percentage and how contagious the virus is, i.e. how many people it will infect.
  • Scientists predict that millions could die if governments continue to do little or nothing to prevent the spread of the coronavirus. 

That should give you a pretty good understanding of why you’ve been asked — or forced — into lockdown. Quarantine means healthcare providers know you contracted the virus, and they want to make sure you don’t have the opportunity to infect someone else before you get better.

That means suing a hospital for placing you in quarantine — even if forced — will be a difficult pill for a judge to swallow. However, there is one situation in which you can sue. If you were not infected with the coronavirus but placed in isolation in error or for some other reason, you absolutely have the right to sue and should contact a medical malpractice attorney immediately!

Everything You Need To Know About Your Medical Malpractice Lawsuit

Medical malpractice is a touchy subject. Proponents of this kind of lawsuit say that those who are injured should have a path to compensation. Opponents say that medical malpractice cases make it less likely a doctor will come forward when a mistake has been made — making further injury even more likely. Doctors who speak up should not have to fear retribution, they say. We say that the caregivers have less to worry about than the patients.

What should you know about a potential medical malpractice lawsuit. As much as you can. First, it’s a major cause of death! The Journal of the American Medical Association says that medical malpractice is the third leading cause of death in the United States. Considering that heart disease and cancer are the first and second leading causes of death, it says a lot about our society.

First, medical malpractice cases are notoriously difficult to build and maintain. Not only do you have to prove that you were injured because of the decisions of your healthcare provider, but you also have to prove that the standard of care you received was lower than the standard of care that everyone else receives. That’s not an easy task. 

You can make it easier for your personal injury or medical malpractice lawyer by writing everything down. Take copious notes on your situation from beginning until end, and be sure to keep adequate documentation of medical bills, procedures performed, advice of the doctors, etc.

State laws differ from one another, so if you live outside New York, check with your lawyer to determine how the statute of limitations is determined. Your lawyer will also determine whether or not you have a case. The devil is in the details — so don’t leave any out when discussing your medical history and current records.

If you haven’t been the victim of medical malpractice, then you may simply be worried about a future hospital stay. No surprise there. Be sure that you understand your medical condition fully. Don’t hesitate to ask your healthcare provider questions. When one of your questions has not been answered to your satisfaction, find a second opinion — or even a third. This is your life. Don’t take it for granted.

The number one reason that a patient decides not to move forward with a medical malpractice claim is the fear of retribution. But you don’t have to worry that accusing one doctor of malpractice will result in the refusal of other doctors to take you on as a patient. Your claim also won’t have any bearing on the cost of the care you receive. That’s why you should always make a claim if you have a valid claim to make!

Boston Children’s Hospital May Have Illegally Imprisoned Youth In Psychiatric Care

The parent’s wishes are supposed to be held supreme in almost every medical consideration. But that’s not what allegedly happened to Justina Pelletier, who lodged a medical malpractice lawsuit against Boston Children’s Hospital. She argues that her civil rights were severely violated when the hospital decided to keep her in psychiatric care even without parental consent.

Family lawyer John Martin said, “Justina was the victim of medical malpractice. She and her parents had their civil rights violated through threats, coercion and intimidation while she was a patient at Boston Children’s Hospital.”

The court documents describe Pelletier’s detention in psychiatric care for over a year even though her parents expressly forbid it. 

The hospital has denied the allegations of medical malpractice, which means the matter will be heard in court barring a surprise settlement.

Hospital counselor Ellen Epstein Cohen said that “three good doctors” are being slandered by the lawsuit. 

Pelletier spent 18 months in the care of the Department of Children and Families after doctors diagnosed her with mitochondrial disease. The disorder results when mitochondrial cells malfunction, stunting growth and causing developmental problems. Another symptom of the disease include weakness.

The three doctors accused of malpractice said that her parents were abusive. They said Pelletier’s parents were guilty of causing Munchausen syndrome, a mental illness characterized by patients who pretend to be sick when in fact they are not. These allegations resulted in a subsequent custody battle with bureaucratic squabbles between child protection officials, her parents, doctors, and officials from two states.

Martin fervently denied those allegations, describing the parents’ actions as doing “everything that was in their power to do, and the hospital didn’t like that.” 

A different hospital had previously diagnosed Justina with Tufts, suggesting she should be monitored in a psychiatric department for further treatment. The symptoms of Tufts seemed exaggerated. She showed signs of fatigue, gastrointestinal pain, dehydration, and slurred speech. 

Because Justina’s parents were uncomfortable with this diagnosis, a report was filed by the hospital with the Connecticut Department of Children and Families. The report did not result in the barring of parental participation, which came later when Justina’s parents became more combative to the measures taken by the hospitals. 

According to Justina’s parents, they were ultimately provided no more than a single visit every week in addition to two phone calls. Cohen maintains that the Massachusetts DCF decided to limit interaction with Justina because of concerns already mounted. The trial will be ongoing, with both sides expected to call and cross examine multiple witnesses while they go through Justina’s medical records.

Change In Law Could Allow Members Of Military To Sue For Medical Malpractice

Right now, anyone who works for a branch of the United States military cannot sue on the grounds of medical malpractice after receiving negligent care from a government-operated facility. The basis of the law is simple: When someone volunteers for service, that person is basically signing his or her life away to the government. You get a sunburn, and technically you can be reprimanded. Because those people own you.

But the law might soon change to allow service members to sue for medical malpractice just like anyone else. Okay, well, technically that’s not true. They won’t be able to sue, but a review panel put together by the Secretary of Defense could authorize the Pentagon to pay out “redress” claims for injuries sustained due to negligent healthcare. But that’s basically the same thing for victims.

A committee explained that the proposal “authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death of a member of the uniformed services that was the result of medical malpractice caused by a Department of Defense health care provider.”

This new law was included as a component of the National Defense Authorization Act of 2020. The NDAA would provide $738 billion in new military spending and increase military pay 3.1 percent across the board.

National Military Family Association government relations director Kelly Hruska said, “We’re curious to see the process that will be established. Our association supports elimination of Feres.”

The change in law stems from a claim arguing against the long abided-by Feres Doctrine. Special Forces Sergeant 1st Class Richard Stayskal complained of ongoing pain for months and was misdiagnosed repeatedly by a number of government-paid doctors. 

Representative Jackie Speier (D-CA) chairs the House Armed Services subcommittee on personnel. She took note of Stayskal’s case and subsequently sponsored the new malpractice adjustments. Speier said that Stayskal “forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to [Congress] and heroic advocacy.”

Speier did, however, raise concerns that the Department of Defense and SecDef might not be the right ones to run this new claims process, but that they would just have to wait and see how it goes. “It was important that we seize this unique political moment,” she said.

The new law places restrictions on how much attorneys can make from the new process, and restricts their payouts to 20 percent of whatever is awarded to the plaintiffs — but more importantly, the DoD is not responsible for paying those fees, which means the dollar amount will not be increased to reflect lawyer’s fees.

Medical Malpractice Lawsuit Statute Of Limitations Nixed In Pennsylvania

One of the most maddening aspects of medical malpractice cases are the limitations and restrictions placed on the victims. You recently learned that an operation you had ten years ago left you with severe internal damage today? In many states, tough luck. A statute of limitations often caps lawsuits at two years after the initial damage was done. In some states you have one or two years from the time you realized that malpractice had occurred.

The Pennsylvania Supreme Court recently ruled that these arbitrary time limits are pulled from thin air and do relatively little to serve the public good.

The court, in a 4-3 ruling, said that the statute of repose was unconstitutional. The reasoning? Repose statutes violate a court’s right of access. They do nothing to control skyrocketing costs or premiums — and they certainly do nothing to help the victims of medical malpractice cases.

The ruling stemmed from a Pittsburgh case against two physicians who allegedly ignored tests. They used a woman’s son’s liver during a transplant even though they both had the exact same genetic liver disease.

Patrick Cavanaugh was an attorney working for the Yanakos family, the victims. He said, “The family felt aggrieved that their case was barred because of the arbitrary seven-year limitation, and they’re glad to be able to assert their rights in court.”

The court ruled in the family’s favor when discovery documents showed that the physicians knew about the son’s test results, but failed to tell him. They proceeded with the transplant of the donated liver lobe. It was eleven years before they discovered that the mother was still a victim of the same disease that had landed her in the hospital the first time. That eleven years far exceeded the seven-year limitation placed on medical malpractice cases.

Cavanaugh said, “The family assumed that if the liver transplant went forward, the doctors would use a healthy liver. It was a safe assumption by the family that Christopher didn’t have AATD, but in fact he did. There’s no way the plaintiffs could have found all that out within seven years.”

A dissenting justice wrote that “it is not this court’s role to upend duly enacted legislation simply because we might sometimes deem it imperfect or unwise.”

But in reality that’s the entire point of Supreme Courts across the land — to determine whether or not laws already on the books actually make sense for the greater good, and to “upend” that duly enacted legislation to “check and balance” legislative overreach. Like the founders intended.

What Is Judicial Admission And What Does It Mean For Medical Malpractice Defense Cases?

Judicial admission is a courtroom process that helps one party from having to prove a fact. A piece of evidence is admitted by the judge, in writing, and is treated as if it is already a fact. Judicial admission has sometimes been referred to as admission in judicio, true admission, and solemn admission. In general, judicial admission is a concession by one courtroom party that a claim or defense is not false.

According to Ohio’s Supreme Court, certain of these admissions cannot be used during medical malpractice cases. What exactly does this mean for plaintiffs and defendants?

Think of it this way: your healthcare providers made a big mistake during surgery, either yours or someone else’s. Maybe your condition or injury was made worse by a mistake. Maybe a friend or loved one was inadvertently killed because of the mistake. The healthcare providers who allegedly made the mistake decide to personally apologize. Ohio’s decision means that apology is not proof that the mistake occurred, and that it cannot be used against them in court.

This was decided in the case of Stewart v. Vivian in 2017.

When Michelle Stewart tried to kill herself, healthcare providers placed her in the psychiatric unit of an Ohio hospital. She was in the care of Rodney Vivian, who had decided that Stewart should be checked on at least once every fifteen minutes. Only a day later, Stewart’s husband, Dennis, arrived for a visit to find her hanging unconscious. Stewart succumbed to the second suicide attempt days later.

Subsequently, Vivian made expressions of condolence to Dennis, and Dennis tried to use that as an admission of guilt in court after he sued the hospital. It didn’t work. The Ohio court ruled against him, but an appellate court heard his case and ruled in his favor. And it turned out that there were conflicting cases already in the pipeline. Because of this, the case was turned over to the Supreme Court, where it was finally dismissed yet again.

Chief Justice Maureen O’Connor described the potential consequences that the ruling may have on medical malpractice cases and many others. She did not agree that “the statute must be rigidly construed to cover only those statements including the words ‘I apologize’ or ‘I sympathize.’”

She wrote, “A health-care provider could render any statement inadmissible simply by affirming a subjective intent to apologize or to console.”

In other words, incriminating statements made by hospitals or healthcare staff could, in the future, be deemed inadmissible if the hospital’s defense attorneys can convince a judge or jury that they implied condolence or apology — which would be a dangerous precedent indeed.

Medical Malpractice Lawsuit Dismissed When Plaintiff Dies

Katrina Dennis was regent at the University of Maryland, but she also practiced law as a corporate attorney. Perhaps that gave her an edge when she hired a lawyer of her own so she could sue the University of Maryland St. Joseph Medical Center and one of the doctors who worked there for negligence in the care she was receiving after a breast cancer diagnosis. But when the cancer killed her, the case was dropped.

Why?

The trial to determine if the hospital and doctor were liable for the spread of her cancer was only supposed to last two weeks in the Baltimore County Circuit Court, but Dennis died before it could be completed.

Robert Welchek, who represented Dennis, acknowledged to reporters that the judge declared a mistrial and dismissed the case when Dennis died of complications. Welchek and her other representatives did not oppose the motion to dismiss, nor did they provide any further information on the case.

Dennis discovered she had breast cancer when she was diagnosed in 2015.

According to case files, Dennis believed that she had received a negligent standard of care because her doctor allegedly led her to believe her breast cancer would be cured without potential recurrences after surgery to remove the tumor. She also contended that her doctor should have put her on a drug called Tamoxifen, which is supposed to prevent cancer cells from spreading after such a surgery.

Her second diagnosis with breast cancer occurred in 2017. By then the cancer cells had spread to blood, bones, and organs and could not be treated successfully.

Lawyers representing the hospital and the doctor said they believed that Dennis had been provided with the same standard of care anyone else could have received. Her doctor listed her options and subsequently continued to perform blood tests to try to detect the spread of cancer cells early. These attempts to save her life failed.

Dennis served on both the Education Policy and Student Life Committee during her tenure on the Board of Regents. She also maintained a presence on the Organization and Compensation Committee in addition to placing as chair for the Coppin State University Presidential Search Committee.

Maryland Governor Larry Hogan tweeted, “Katrina was a top lawyer, a respected leader in the Baltimore region, and someone who lived each day committed to giving back to her community.”

Had she won the case against the University of Maryland St. Joseph Medical Center, she would have received approximately $24 million in damages.

Even The Incarcerated Have Rights: Inmate Wins $1 Million For Medical Malpractice

One Virginia inmate is a little happier today, having won a massive medical malpractice lawsuit after accusing the prison’s medical personnel of providing him with improper care after he broke his finger. The records of a million-dollar payout were found via the U.S. District Court system. John Kinlaw, a 32-year-old who was serving time in a Virginia prison, won the cash settlement after finding legal help.

When asked about the experience, he said, “There should be no difference in the standard of treatment between an inmate and a regular person. The people that mistreated me were going to be held responsible.”

And therein lies the problem for many victims of medical malpractice — not only do they have to prove that they were somehow hurt by the care they received, but also that the care received was somehow different from the standard of care expected anywhere else. 

According to Kinlaw, he still feels the consequences of the improperly delivered care.

The lawsuit was filed in 2017 against Armor Correctional Health Services Inc. as soon as Kinlaw was released from the Lunenburg Correctional Center. He accused prison staff of knowing that he had fractured his finger because of X-rays that had been taken. Normally the kind of break he suffered would require surgery. Instead, medical personnel at the correction center gave him a dose of Motrin and an ice pack to numb the area. 

He complained about the injury for weeks afterward, but they ignored him completely. In addition to Armor Correctional Health Services, Kinlaw named a Nurse Banks, Nurse Price, and Nurse Nwaokocha because they routinely denied new treatment.

It was over three months before the medical staff agreed to allow him to see a specialist. His theory that the fractured bone was healing improperly was confirmed.

Nexus Services Inc. is an organization that helps provide the basis for medical malpractice incurred during time spent in a correctional facility

Nexus CEO said, “What we do is we take cases involving complaints about government agencies, police, prisons, and jails, and evaluate them and refer them to a law firm to prosecute them, so we’ve been working with John…It’s very clear that they just didn’t want to spend money and perhaps that’s the ultimate irony because now they are going to have to pay over a million dollars to Mr. Kinlaw.”

Kinlaw’s settlement included $700,000 in damages and more than $300,000 in punitive damages (those that are meant to punish a person or organization for gross negligence).

How Do Breast Medical Malpractice Situations Arise?

How many of you have had acquaintances, friends, or family members diagnosed with breast cancer in the last five years? The reality is that you probably know someone, or at least have known someone in the past. The disease affects hundreds of thousands of women, 40,000 of whom will continue to die each year if we don’t find a way to eradicate breast cancer soon. Coping with cancer is hard enough — but what happens when you have to cope with the possibility of medical malpractice?

Malpractice cases are uncommon in general, but they arise in certain situations more than others. Those with breast cancer will want to pay especially close attention to the warning signs that their healthcare providers may have made a mistake.

Doctors sometimes fail to paint a complete picture of a person’s family history, sometimes due to laziness, sometimes due to a patient’s unwillingness to share, or sometimes simply due to incompetence. No matter how it happens, it’s part of the job to get it right, and get it right the first time. An incorrect family history can lead to incorrectly ordered tests to locate specific genes that can impact a patient’s fighting chance against breast cancer.

The genetic aspects of fighting cancer are becoming easier to use to our advantage, because sequencing the entire human genome is less expensive than ever before.

Communication is key: communication between you and your doctors, and then communication between your doctors. A break in communication can result in missed or inaccurate tests, or delayed treatment. These errors are the basis for many medical malpractice lawsuits involving breast cancer, and shouldn’t be taken lightly.

Even though women should check themselves for lumps at least once a month, some doctors won’t take a patient seriously if she finds something he missed during the doctor’s visit. If a doctor fails to follow through with routine healthcare, you know something is wrong. Don’t let them say it’s your imagination. Get a second opinion when necessary. Or a third.

Misreading of lab tests by technicians or other medical personnel can lead to misdiagnosis, which can in turn lead to improperly prescribed medications. Either issue can result in delay of proper treatment, which can turn life-threatening. In addition, having the wrong medication prescribed — or even wrongly dosed — can result in other complications or terrible side effects.

Common Signs Of Medical Malpractice

The truth is sometimes hard to swallow, but here it is: doctors are wrong more often than they care to admit. Their misdiagnoses and mistakes on the operating table can be deadly. Even though these mistakes are common, medical malpractice paid claims are not. For every one million residents in New York, there are only about 85 claims paid out each year. Part of the reason for this low number is because people do not always realize they were the subject of malpractice!

Here are a few of the most common warning signs of medical malpractice:

  1. Waking up in surgery. Anesthesiologists have one of the most difficult jobs in the business. Calculating how much anesthesia to give a person going into surgery is difficult and based on a number of factors. These include the part of the body operated on, weight of the recipient, allergies, supplements taken, prescription drugs taken, alcoholism, smoking, etc.

    Because these factors are sometimes impossible to accurately determine based on conversations with a patient, mistakes are common. If you wake up during surgery or feel any pain during an operation, you may be the subject of medical malpractice.

  2. Unusual pain. You might be surprised how often surgeons leave instruments inside a patient. If you encounter unusual pain after an operation and it just will not go away, consider visiting a different doctor to ensure the last one didn’t make a big mistake.

  3. Repeat Visits. If you repeatedly visit the doctor, you might be the subject of medical malpractice. This means that your doctor either failed to properly diagnose you in a timely fashion, or misdiagnosed you. This can allow a disease to fester longer and become more dangerous or even life-threatening. Many patients insist on a second opinion if they believe their symptoms are indicative of cancer or an equally life-threatening condition.

  4. Incorrect Medication. When misdiagnosed, you may receive the wrong medication for your ailment. Sometimes this can result in the real issue becoming even worse. Even when that is not the case, you are still susceptible to side effects from the incorrect medication. Another situation that might arise occurs when a doctor prescribes you the incorrect dosage of a drug for the correct disease.

  5. Consent. Doctors are not allowed to perform risky procedures or treatments without your express permission or the permission of your power of attorney. The only exception occurs when the patient is unconscious or a procedure must be performed immediately to save a patient’s life. If you were not properly informed of all the risks of a procedure, or a doctor performed a procedure without your permission, then you might have a case of medical malpractice.

  6. Admission. Although it’s rare for doctors to admit their mistakes (for liability reasons), it has been known to happen on occasion. When they do, it’s important you know that you have the right to compensation for medical malpractice, and you should enlist the services of a competent lawyer.