Month: June 2016

Does The General Public Know What The Statute Of Limitations Is All About?Does The General Public Know What The Statute Of Limitations Is All About?

The answer is no. Yet knowing the importance of the statute of limitations is key to protecting your rights in a typical personal injury case.

Here’s an example. I received a call from a woman who had fallen from the bed of a pick-up truck and fractured her elbow. She went to an emergency room where she was examined and X rays were done. The X rays showed an avulsion fracture at the elbow which did not require casting. She was released, but later developed complications, and came under the care of an orthopedic surgeon, who did surgery on the elbow a few months later. Something went wrong with the surgery and she was left with minor nerve damage in her hand.

She hired an attorney to investigate a potential medical malpractice case. That attorney looked into the case and determined the injuries weren’t serious enough to warrant pursuing a medical malpractice case and informed his client as much. The attorney sent her a letter informing her that in Pennsylvania, the two year statute of limitations required her to file suit against any responsible parties for her injuries pertaining to the medical malpractice case, or she would lose her right to do so, and that if she wished to do that she would have to find another lawyer. The problem was the woman was never informed, never knew, or never realized that the same two year statute of limitations that applied to her potential medical malpractice case also applied to the underlying incident that resulted in her fall.

When she called me, twenty six months after her original injury, she told me that she has slipped on the bed of the pick up because there was an oily substance that she had not seen. This was not investigated by the first attorney that she had hired. But by the time she contacted me the two year statute of limitations had expired. If she had contacted me earlier, I explained to her, I would have pursued the case against the owner of the pick-up truck for neglecting to clean the oil from the bed of the truck and not informing her of the slippery substance which ultimately led to her injuries. She however had no idea that the two year statute of limitations applied to her original incident. She was so focused on the potential malpractice case that she lost sight of the possibility of pursuing a case based upon her original fall.

As lawyers, we assume the public is aware of what the statute of limitations is and what it means, in any particular case. It’s part of the language that we speak, and we assume, incorrectly, that the public uses the same language. I was surprised that the woman that called me was simply unaware that the time limit had expired on her case. That’s one reason I have written this article. The lawyer that was looking into the medical malpractice case never thought of looking into the negligence of the owner of the pick-up truck as a means of seeking compensation for his client’s injuries. That’s not to say that the case against the owner of the pick-up is an easy case. It may be fraught with all sorts of difficulties. Nevertheless, the woman who called me is time-barred from even looking into that case because of the two year statute of limitations.

Doctors Using Own Surgical Hardware: A Dangerous Conflict of InterestDoctors Using Own Surgical Hardware: A Dangerous Conflict of Interest

These days, a good number of doctors have interests in medical technologies: many take part in researching and testing new supplies, machinery, and hardware, lending their expertise to examine practicality and usability.

On some occasions, surgeons may be placing themselves in conflicts of interest: using medical products on their patients that they have either developed, tested, or endorsed themselves— and from which they stand to profit monetarily. Dr. Adam Lewis, a spinal surgeon recently cited in a Wall Street Journal article (October 8, 2011, John Carreyrou and Tom McGinty) for allegedly causing the wrongful death of a patient, used spinal hardware from a company in which he had a vested financial interest. His use of a product he personally developed and endorsed is argued to have lead to his patient’s death from surgical complications.

The Association for Medical Ethics (AME) has addressed the dangers and inherent conflicts of interest involved in using hardware that bears extra monetary profit for doctors. There is an extra incentive for doctors to use these products, either through royalties gained from the manufacturers, or direct profit from partial ownership of the manufacturing company itself. The concern of the AME, as outline in the Wall Street Journal article, is that some doctors, spurred by the promise of more money, will perform surgeries that are not necessarily vital to the care of their patients.

Instances such as Dr. Lewis’ and several other doctors only serve to show the importance of knowing as much about your treatment as possible. Making sure that your medical history is complete and acknowledged, that the best and least harmful treatments have already been attempted and have not sufficed, and that your doctor has your health first in mind, is more important than ever in a world where industry and medicine are growing closely together.

The Trial of Dr. Conrad Murray–A Lesson in Recklessness and NegligenceThe Trial of Dr. Conrad Murray–A Lesson in Recklessness and Negligence

On November 7, 2011, cardiologist Conrad Murray was found guilty of involuntary manslaughter of pop superstar Michael Jackson, who died of cardiac arrest on June 25, 2009. The trial, which lasted six weeks, ended with the jury’s decision that Dr. Murray’s conduct was reckless enough to be viewed as criminally negligent under California’s penal laws. His conviction was for involuntary manslaughter, which at least under California law, is defined as criminal negligence. The prescribing and unorthodox administering of the powerful anesthetic propofol was the major factor in proving Dr. Murray’s guilt.

California Penal Code 192(b) recognizes involuntary manslaughter as “the commission of an unlawful act, not amounting to felony; or… the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The prosecutors in this case had to prove that even though the doctor did not intend to kill Jackson with propofol, Murray’s utter disregard for his patient amounted to recklessness.

In a civil case, negligence is a common law tort in which a person is injured due to another person’s carelessness. Criminal negligence as it is defined by California law, occurs when a person (such as a doctor) acts in blatant disregard of the harm which might befall another person (such as a patient), ie: recklessness.

If Jackson’ family decides to sue the doctor in negligence, they would be able to use the evidence already presented in the criminal case. If and when Jackson’s estate brings a negligence case, here is what must be proven:

Duty: In a civil negligence case, it is necessary to prove that the defendant (Conrad Murray) owed a duty to the plaintiff (the late Michael Jackson). Due to the doctor-patient nature of their relationship, it is undeniable that Dr. Murray owed a duty to Jackson and that that duty required Murray to act in a manner befitting his profession.

Breach of Duty/Breach of Standard of Care: After establishing that Dr. Murray owed a duty to his patient, it is then necessary to prove that he breached that duty. Prosecutors had presented a list of ways in which the defendant failed to fulfill his duty to the plaintiff. Prescribing 4 gallons of propofol, and allowing the drug to be administered within Jackson’s home was an unorthodox practice which has been recognized as the doctor’s major breach of duty, and outside of the standard of care: ie what a reasonable doctor would have done under the circumstances.

Causation: After proving breach of duty, prosecutors must argue that the defendant’s negligence directly caused harm to the plaintiff. Combined with other drugs, the propofol prescribed to Jackson caused the singer to go into cardiac arrest. In the criminal case, prosecutors argued that Dr. Murray failed to perform all of the necessary steps of cardiopulmonary resuscitation (CPR); specifically, he performed CPR on Jackson’s bed rather than on a flat surface. These details further prove breach of duty, as well as served to implicate Dr. Murray in causing Jackson’s death.

Damages: Damages in a negligence case amount to the injury or other measurable loss inflicted upon the plaintiff. The damages here were, obviously, the singer’s death. But also, there is an element of pain and suffering which is called survival damages, and Jackson’s loss of earnings over his expected lifetime, which falls under the category of wrongful death damages.