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Cerebral Palsy – Was It Caused by Doctor Negligence?

Richard A. Silver

April 11, 2017 

When complications arise during the birth of a baby, the result can be heartbreaking injuries to the infant or the mother.  Birth injuries are some of the most devastating personally and financially and are often complicated to prove.  These injuries can be extensive — impairment of motor function, muscle control, muscle coordination, muscle tone, reflex, posture and balance.

Cerebral palsy is actually caused by brain damage, such as a brain injury or by the abnormal development of the brain, and it can be caused by medical negligence at or around the time of birth.

Cases of cerebral palsy caused by medical negligence can occur when the physician fails to follow the proper procedures as defined by the mandated medical standard of care, which cause the baby to suffer from lack of oxygen, bleeding, head trauma or other injuries.  The most common reasons include:

  • Delay in delivering the infant, causing oxygen deprivation
  • Failure to appropriately monitor fetal heart rate before and during labor and birth
  • Failure to identify umbilical cord problems, such as a prolapsed cord
  • Failure to correctly use forceps or vacuum extraction during delivery
  • Failure to plan and schedule a cesarean section when a baby is too large to safely pass through the birth canal
  • Delay in performing (or failing to perform) a medically necessary cesarean section
  • Failure to detect and/or properly treat infections in the mother during pregnancy

In order for parents to consider filing a lawsuit in these cases, there must be proof that the doctor acted in a negligent manner and that this negligence caused the baby to develop cerebral palsy.

Sorry Isn’t Enough: Apology Laws Don’t Limit Doctor’s Risk of Medical Malpractice Lawsuit

Richard A. Silver

March 30, 2017 

Apology laws are designed to reduce medical malpractice lawsuits by allowing doctors to apologize to patients or their families, with those statements prohibited from being admissible in a lawsuit. However, a recent Vanderbilt University study found that these laws do not limit medical malpractice lawsuits.

After analyzing 3,517 malpractice claims, the researchers found that apology laws do not have a statistically significant effect on the probability that a surgeon will face a medical malpractice lawsuit. However, they increase the probability of a lawsuit being filed against other types of doctors because the apologies may alert patients to nonsurgical errors they would not have discovered otherwise, such as misdiagnosis or failure to refer, which can encourage them to file a lawsuit.

Wouldn’t it be better for patients if rather than “sorry isn’t enough,” doctors would never have to say they’re sorry because medical errors were eliminated from every type of hospital setting?

Thoughts Raised by the Article ‘Hospitalists and the Decline of Comprehensive Care’

Richard A. Silver

September 29, 2016 

According to a recent article in the New England Journal of Medicine (“Hospitalists and the Decline of Comprehensive Care,” September 15, 2016), the hospitalist model has provided such benefits as reductions in length of stay, cost of hospitalization and readmission rates – all hospital-defined metrics.  But what is its impact on overall health, total costs and, most critically, its benefit to patients?

I see several issues raised by this increased reliance on hospitalists.  Most importantly, it can be highly disconcerting for patients to discover that the physician who knows them best will not be able to see them at their moment of greatest need — when they are in the hospital, facing serious illness or injury.  Isn’t it much better for patients in these situations to be talking to someone they trust and who knows them and their medical history?

In addition, as the number of physicians caring for each patient increases, the depth of the relationship between patient and physician tends to diminish — a sad counterpoint to the patient–physician relationship as the core of good medical care.  This also creates greater opportunities for miscommunication and discoordination, particularly at admission and discharge, between community physicians and hospitalists as well as between hospitalists and other hospitalists. The result may be failures to follow up on test results and treatment recommendations.

Finally, as community physicians treat hospitalized patients less frequently, their skills in hospital care may decline, while hospitalists who never see outpatients may never understand patients’ lives outside the hospital.  This fragmented patient care model may cause physicians to find it more difficult to provide truly integrated care.

In my view, the key to comprehensive patient-centric care is communication between doctor and patient and knowledge of the patient’s condition and past treatment.  By their very definition, hospitalists are not in this position and their utilization does not assist in the necessary communication of patient information to ensure comprehensive, patient-centric care.


Medical Errors Found in Nearly 50% of Surgeries

Richard A. Silver

September 15, 2016 

Over the years, I have written much about the impact of medical errors in medical malpractice cases, and now a new study has found them to be a much larger problem than previously thought — medical errors or unintended drug side effects occur in nearly 50% of surgeries.

Researchers at Massachusetts General Hospital in Boston recently looked at 277 procedures that had a high prevalence of medical errors and found that the number of medical errors was higher than previously reported because those studies relied of self-reported medical errors.

The most commonly observed errors involved administering incorrect dosages of medications. Of those perioperative medication errors that might have led to patient harm, less than 2% percent were considered life-threatening, 69% were considered serious and 30% were considered significant.

Once again, as the healthcare profession continues to study medical errors more carefully to determine their cause, frequency and impact on patient care, strategies can be developed and procedures implemented that will reduce – and one day eliminate – this unnecessary cause of patient suffering. That day cannot come soon enough.

Mining for Gold in Medical Malpractice Data

Richard A. Silver

August 31, 2016 

Healthcare professionals and insurers have started mining recent medical malpractice lawsuits in order to learn how to make fewer mistakes and improve the quality of care.

They are looking at tried, settled and dismissed lawsuits to find out the reasons that doctors are sued and are then sharing these findings with doctors and hospitals in order to reduce mistakes and fix the issues that undermine patient safety.

Doctors Company, the largest physician-owned malpractice insurer, has conducted more than 40 studies of more than 10,000 recently closed claims.  While there are common themes in claims from almost every medical specialty, such as failure to properly diagnose or poor procedural technique, data from different specialties are helping to identify issues unique to different types of doctors — from primary care physicians and emergency room doctors to anesthesiologists to cardiologists.

The results of this data mining provide new insights into the types of errors doctors are making and when and where they are making them.  Now, healthcare professionals and facilities can put in place the steps necessary to prevent these errors and provide safer, higher quality of care for their patients.


Why Can’t Modern Medicine Perform as well as the Airline Industry?

Richard A. Silver

June 20, 2016 

The airline industry is considered to be second to none in safety.  Airplanes are designed and built to fly safely and efficiently.  Pilots are focused solely on flying their planes.  Crew members and ground support are dedicated to ensuring the safety of the planes both in the air and on the ground.

Compare this to modern medicine.  Patients enter hospitals in varying degrees of ill health.  Doctors and clinicians simultaneously treat multiple patients.  Hospital staffs juggle endless tasks, interrupted workflows and emergency situations.

Is it any wonder that medical errors are the third leading cause of death in the U.S.?

(Becker’s Infection Control & Clinical Quality, “Medical errors are No. 3 cause of death in the US, study unveils,” May 4, 2016)

The Numbers Add Up: Various Components of Potential Damage Award in Childhood Sexual Abuse Cases Can Reach Significant Totals

Jennifer B. Goldstein

April 25, 2016 

The scope and nature of damages in childhood sexual abuse cases brought against institutional and other defendants is broader than one might expect.

Some of the damages caused by childhood sexual abuse have long been recognize — horrific physical violation and a lifetime of feelings of terrible shame, guilt and secrecy that can permeate every aspect of an abused person’s life.

Other aspects of damages, however, are not as well known.  There are strong correlations, detailed in the medical literature, between childhood sexual abuse and the development of bipolar syndrome; the development of issues with authority figures, potentially leading to future legal problems, incarceration or work-related issues with bosses/supervisors; the development of substance abuse problems and suicidal intent; the development of school-related academic and discipline problems; and the subsequent inability to form strong, lasting or emotionally satisfying emotional bonds with parents, children, spouses and significant others.  All of these may be significant components of a damage award.  Moreover, since child sexual abuse occurs, by definition, at an early age, the damage can last for upwards of 70 or more years.  This can be devastating to the victims — direct and indirect — of childhood sexual abuse.  It can also be exceedingly costly to defendants.

In addition to compensatory damage awards, punitive damages are potentially available if a claim for recklessness is pursued successfully.  In Connecticut, punitive damages are limited to the amount of attorneys’ fees and litigation costs awarded.

The Offer of Compromise statute can add materially to a damage award. Pursuant to Section 52-192a(b) of the Connecticut General Statutes, if the plaintiff files an Offer of Compromise within 18 months of the commencement of the action, and the defendant rejects that Offer of Compromise, and the plaintiff then goes on to recover an amount equal to or greater than the amount of the Offer to Compromise, then the plaintiff will be entitled to 8% interest per annum on the compensatory amount recovered, computed from the date the Complaint was filed to the date of judgment.  Prejudgment Offer of Compromise interest can also be applied to the amount of punitive damages/attorneys’ fees and costs awarded at a rate of 8% per year, calculated from the date the Complaint was filed until the date of entry of judgment.

Additionally, Connecticut General Statutes §37-3b provides that for causes of action arising on or after May 27, 1997, a plaintiff is also entitled to post-judgment interest on the amount of the compensatory damages judgment of a negligence action at the rate of 10% per year, starting 20 days after the date of judgment. (For causes of action arising before May 27, 1997, the award of post-judgment interest is discretionary with the Court and permits an award of up to 10%. Connecticut General Statutes §37-3a). A plaintiff would also be entitled to post-judgment interest at the rate of 10% per year on the full amount of the punitive damages judgment, starting on the date of the judgment.

All told, damages for the sexual abuse of a child can add up quickly to significant amounts. If the enormity of the harm done to children is not enough to deter a potential defendant, then the extensive financial exposure a defendant may face should serve as a powerful financial incentive for institutions to take reasonable steps to keep children participating in their programs safe from sexual predators.

Proving Institutional Liability for Childhood Sexual Abuse Requires Careful Choice of Legal Theory

Jennifer B. Goldstein

April 20, 2016 

The recent spate of sexual abuse cases lodged against educational and youth-centered organizations, such as boarding or preparatory schools, YMCAs and the Boy Scouts of America, raises issues regarding which theory of negligence will prove most effective at trial.

A common mistake made by many plaintiffs’ attorneys is to seek to hold the parent organization vicariously liable for the act of one of its agents — for example, a school headmaster, administrator or teacher, a community organization program director or a Boy Scout Scoutmaster. The problem with relying on agency as a theory of vicarious liability, however, is that it is easily defeated in a sexual abuse case: the defendant has merely to prove that the “agent” was not acting within the scope of his or her employment or in furtherance of the organization’s business interests to avoid legal responsibility for the actions of the sexual offender.

Instead, it is a stronger legal theory to hold the institution itself directly responsible for bad decisions made by its own employees which were a substantial factor in causing the plaintiff’s injuries. If the plaintiff’s attorney can prove that the organization was in a unique position to recognize the dangers of sexual abuse inherent in its own activities — perhaps based on knowledge it may have of a history of abuse occurring in certain situations or settings (for example, when school staff members are permitted to invite students to their homes under the guise of mentoring activities; when children are allowed to undress in the presence of adults or other supervisors; when adults or other supervisors are allowed to share tents with children on overnight camp-outs), then the case can be made that the organization was under a duty of care to take steps to protect children in those situations where it was aware that abuse was likely to occur.

This is even more so when the organization itself created or increased the foreseeable risk that sexual abuse would occur by setting up situations where the opportunities for abuse were abundant.  In such cases, the organization might chose to implement educational and informational programs for parents, youth participants and relevant staff or other leaders in community organizations to teach children how to recognize “grooming behavior” when it occurs; how to repel the advances of a sexual molester; and how to recognize a sexual molester as such.  It might also teach children to know that it is safe and socially acceptable to report instances of abuse or suspected abuse and to know specifically to whom they should make such reports.

Educating children how to recognize the scourge of sexual abuse and how to respond quickly and safely in a manner that will not subject them to social ostracism will go a long way both to stopping abuse before it happens (or continues) and to protecting an organization from legal liability if it does occur.  If an organization fails to take such steps, it leaves itself open to the risk of direct legal liability for its decision not to do so.

Individual Voir Dire = Justice

Richard A. Silver

March 30, 2016 

Individual voir dire is an important Constitutional and statutory right in Connecticut which provides the litigants an opportunity to discover a potential juror’s bias and prejudices.  The fundamental purpose of voir dire is not to select appropriate jurors, but rather to eliminate potential jurors who have strong bias and prejudices that will be harmful to a party’s case.  Individual voir dire is a vital mechanism to ensure that each party will gain meaningful information to predicate a decision whether to exercise a peremptory challenge or a challenge for cause.

The Connecticut Constitution establishes a party’s right to individually question potential jurors: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law.  The right to question each juror individually by counsel shall be inviolate” (Article 1, Section 19).

The manner for conducting individual voir dire is also proscribed by state statute.  General Statutes section 51-240 provides: “either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors,” and “[t]he right of examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the action.”

Some members of the bench and bar have suggested that the current practice of individual voir dire in Connecticut is time consuming and unnecessary and have called for statutory amendments to allow for questioning of potential jurors in groups rather than individually.  These opponents of individual voir dire argue that conducting voir dire of potential jurors in groups rather than individually is sufficient and will expedite the jury selection process.  They also note that the Connecticut Constitution and statutory protection is unique.

While group voir dire may lead to shorter jury selections, the primary concern of any jury selection process should be assembling a fair and impartial jury.  Individual voir dire is the best method of ferreting out jurors who would not be suitable for the case based on impartiality.  These Constitutionally and statutory  guarantees should not be abandoned simply to save time.

The so-called panel examination or box voir dire, which can be conducted by agreement of the parties, has been utilized on a very limited basis and has not been widely accepted by the Connecticut trial bar.  This lack of acceptance is founded on the experience of the trial bar that the box method lacks the ability to bring out the actual bias and prejudice of an individual because of the presence of other panel members.

In individual voir dire, jurors can be asked personal questions that expose juror bias and prejudice that would not be volunteered in a group with other venirepersons.  For example, in a medical malpractice case, if a juror had adverse experience with a physician concerning a personal medical problem, the potential juror would not be comfortable in revealing such an experience in an open courtroom before a panel of 20 potential jurors. The individual examination is conducted in a conducive setting on a one-to-one basis which gives the juror an opportunity to factually respond to specific questions that lead to further investigation.  Thus, a juror’s potential conflicts or bias is readily pursued, protecting both the plaintiff and defendant.

An in-depth study was performed to determine whether venirepersons are more forthcoming while individually sequestered or while questioned en masseThe authors concluded that bias in potential jurors is best revealed when venirepersons are examined while individually sequestered. (Id. See Nietzel and Dillehay, “The effects of variations in voir dire procedures in capital murder trials,” 6 Law and Human Behavior 1, March 1982).

In another study by Judge Gregory Mize, a former trial judge of the Superior Court of the District of Columbia, and co-chair of the D.C. jury project, the judge examined the extent to which individual voir dire resulted in the discovery of juror bias warranting excusal for cause, which had been missed during group voir dire.  (Mize, J., “On Better Jury Selection: Spotting UFO Jurors Before They Enter the Jury Room,”  Court Review, Spring 1999).  Mize found that individual voir dire of potential jurors resulted in more complete and candid responses than voir dire in the open courtroom, without any significant increase in the consumption of time.  Furthermore, Mize found that individually questioning every potential juror revealed background data and beliefs that ultimately avoided the danger of mistrials caused by impaneling biased jurors.

Box voir dire is simply inadequate at detecting juror bias.  Panel voir dire requires the use of primarily leading questions as opposed to open-ended questions.  The substance of a person’s belief is best perceived by letting the juror respond to open-ended questions, e.g., “What is your feeling about [the relevant issue]?” and follow-up questions such as “Please tell me about that.”   The leading questions characteristic of group voir dire instead rely on potential jurors to identify their own biases and come forward with them in front of other potential jurors.  The panel procedure is inadequate because individuals are not always self-aware enough to appreciate their own bias or willing to directly admit to their own bias, particularly in front of other potential jurors.

The box voir dire potentially introduces material that can “infect” the entire panel, such as inappropriate comments or opinions by venirepersons that can affect a whole panel, and which require dismissal of the entire panel.

The en masse voir dire requires that a judge be present during the entire proceeding, whereas the individual voir dire utilized under our present system only requires judicial intervention if a specific issue arises that might affect the panel.

In individual voir dire, pre-screening of potential jurors by the court prior to examination based on questions submitted by counsel eliminates potential disqualifications and saves an enormous amount of time.  The effective utilization of an individual voir dire requires the jury panel to be pre-screened, counsel to start examining the jurors promptly each morning and have sufficient venirepersons to examine for the entire day. Significant delay in picking juries has been caused in some Connecticut jurisdictions where there were not sufficient panel presented for an entire day.  Instances have occurred where there were no panel members available after 11:30 a.m.  This delay in total time in jury selection is directly attributable to lack of adequate number of jurors, not to counsel’s length of examination.

In 2007, the Connecticut Trial Lawyers Association presented a demonstration of both individual voir dire and box voir dire.  The demonstration clearly revealed the difficulty counsel has in conducting box voir dire and the lack of adequate exposure of bias.

Clearly, any potential time saved by abandoning the constitutionally and statutory protected right of individual voir dire cannot justify the likely prejudice of allowing jurors with inappropriate bias and prejudice to sit on the jury.

Winning the Defective Premises Case

Angelo A. Ziotas

March 10, 2016 

By Angelo A. Ziotas

Like most personal injury cases, premises liability cases arise from circumstances in which someone responsible for the safety of another fails to take care for that other person when he or she should have. Unlike other personal injury cases, however, the responsibility of the person owning or controlling the property, whether a private homeowner, a retail establishment, a commercial business or a municipal or state government entity, depends on whether the person injured was invited or even allowed on the property.  In Connecticut, such claims can be complicated, and the law is continually changing.  These areas were discussed at a recent Connecticut Trial Lawyers (CTLA) seminar on “Winning the Defective Premises Case” that was co-chaired by Angelo A. Ziotas, a partner at Silver Golub & Teitell LLP.

“This seminar provided a comprehensive overview and analysis of premises liability law for every level of experience,” said Mr. Ziotas. “It is essential that trial lawyers understand that to win a defective premises case, they must prove that the property owner was negligent regarding either ownership or maintenance of the property and failed to use reasonable care in connection with the property.”

Topics that were discussed during the CTLA seminar included:

  • Supreme and Appellate Court Case Review: Analysis of New Developments in the Common Law
  • Social Host Liability re: Alcohol Issues, including Representing the Victim in Criminal Proceedings
  • Municipal Liability and Immunity in the Defective Premises Context
  • Notice Issues

The seminar reviewed some recent significant cases decided by the Connecticut Supreme Court concerning the duty owed by land possessors, the liability of retailers under the “mode of operation” rule, the assignment of liability to third parties and the use of commercial lease anti-subrogation clauses.

In Connecticut, people in possession and control of properties, such as owners, landlords and property managers, have far-reaching obligations regarding the safety of those properties. These include the proper maintenance of a wide range of areas in and about the properties, such as staircases, hallways, sidewalks, parking lots and the aisles of retail stores.

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