Wrongful Death

April 28, 2011

Supreme Court Hears Key Privacy Case

The US Supreme Court heard arguments this week in a case that raises important issues about personal privacy, patients relationships with their doctors and what some see as corporate America’s right to see people’s personal data because doing so may aid their marketing efforts.

According to the Burlington Free Press, the case turns on “a Vermont law that restricts the use of doctors’ prescription records for marketing purposes.” Pharmaceutical companies have challenged the law, arguing that they need to know which doctors are prescribing generic as opposed to brand-name drugs so that they can target their marketing to doctors who, they feel, should opt for generic medicines less often. The Free Press reports that 35 states, the District of Columbia, the US Justice Department and “organizations representing more than 100,000 physicians” back the law, while “numerous business and research groups, including the US Chamber of Commerce” oppose it. The measure went into effect last year. A Federal District judge upheld it, but was reversed by the 2nd US Circuit Court of Appeals.

From a patients’ perspective challenges to this law raise several potentially disturbing issues. As patients we presume our conversations with out doctors are private. It is unclear from the court arguments whether personally identifiable information is being shared with drug companies. Also, should patients have some right to know whether their doctor’s prescribing decisions were effected by a marketing hard-sell from drug manufacturers? Considering the number of scandals in recent years surrounding medical marketing these are very legitimate questions for patients to ask.

April 22, 2011

Washington Wrongful Death Suit Filed by Portland, Oregon Parents

by Matthew D. Kaplan

Oregon parents of a 12-year old boy killed in a go-kart accident in Washington state have filed a Washington wrongful death suit against Benton County, the city of Richland (where the accident occurred) “and several other people and organizations whose negligence (the parents) claim contributed to their son’s death,” the Tacoma News-Tribune reports.

Kenneth McKinster died in 2008 “when his kart slid off the track while he was trying to navigate a hairpin turn during a weekend racing event,” the paper reports. His parents believe the kart itself was poorly designed, and was later improperly maintained by the Tri-City Kart Club and by the city and county which, at the time, owned the track itself. According to area TV station KEVW the case is expected to be heard in court before the end of the year.

Go-karts are motorized vehicles capable of traveling at fairly high speeds but including very few of the safety devices we all take for granted in ordinary cars. That places a special responsibility on the owners and operators of go-karts and similar vehicles when it comes to safety. Injuries to children here in Oregon and Washington can easily occur, as this case tragically demonstrates.

April 14, 2011

Portland Hospital Cleared of Malpractice in Parking Lot Death

by Matthew D. Kaplan

Following up a story I wrote about in February, The Oregonian reports that federal regulators have cleared Portland Adventist Medical Center of wrongdoing in a high-profile case in which a man died of a heart attack in the hospital’s parking lot.

As regular readers will recall, 61-year-old Birgilio Marin-Fuentes suffered a heart attack as he drove into Adventist’s parking facility on February 10. He crashed his car into a wall, but lay in the vehicle unnoticed for more than 20 minutes despite the presence of surveillance cameras in the facility and the fact that the emergency room door was only a short distance away.

Police eventually arrived to help the stricken man. There is some dispute over how the hospital acted at this point. Some accounts say a police officer who ran to the emergency room was rebuffed by desk staff there and told the emergency needed to be telephoned in before hospital staff could respond – despite the emergency being on their own property. Hospital spokespersons have rejected that version of events. Martin-Fuentes died shortly after being moved inside the hospital building.

March 31, 2011

Key Ruling Issues in Wrongful Death Lawsuit

by Matthew D. Kaplan

A Florida judge has issued a key ruling in a closely watched wrongful death case that may have implications for student athletes here in Oregon and elsewhere.

The case concerns the death of Ereck Plancher, a 19-year-old student and football player at the University of Central Florida. Plancher died in March 2008 after collapsing during a spring workout that was being supervised by the university football coach. According to the Orlando Sentinel “an autopsy found that the stress of the workout triggered Plancher’s sickle cell trait, causing misshapen blood cells to damage his organs and shut down his body.”

Though the university “contends it did everything possible to save his life,” Plancher’s parents filed a wrongful death lawsuit against the school, its trustees and the UCF Athletics Association. Last week’s ruling allowed the parents to seek punitive damages in the case, but instructed the jury only to award such damages if the jurors “specifically find that no water and no athletic trainers were present for the final portion of Palncher’s workout.”

March 28, 2011

Washington Train Accident Trial Raises Wrongful Death Questions

by Matthew D. Kaplan

A trial now underway in Washington is raising serious questions about railway safety. According to TV station KGW, the Longview, Washington trial focuses not only on safety policies at the Burlington Northern Santa Fe Railway Company, but on how carefully those policies are enforced.

The Washington rail crash trial stems from “a collision between a train and a shuttle van in which three people were killed and a forth was critically injured,” the station reports. At issue is a BNSF policy of parking all stationary trains at least 250 feet from a rail crossing. The victims in this particular case died after being struck by a train that apparently could not see their van as it crossed the tracks because another train was parked only 50 feet from the crossing, blocking the engineer’s view.

One complication facing the victims’ families, however, is the fact that the incident took place on the railway company’s property, where laws designed to protect the public at public crossings do not have effect. Private crossings, such as those on company property, have “no requirements for lights or a crossing arm,” the paper reports.

March 18, 2011

Serious Medical Malpractice Questions Raised by Report on State Medical Boards

by Matthew D. Kaplan

A report released this week by the consumer watchdog organization Public Citizen raises serious questions about the conduct of state medical boards, according to an analysis published by the Los Angeles Times. The charges, in turn, raise broader questions about the conduct of hospitals and doctors and the prevalence in our health care system of doctors who are problematic at best. Here in Oregon it must make conscientious citizens wonder whether instances of medical malpractice or even wrongful deaths have been allowed to occur as a result of insufficient professional oversight.

As outlined by Public Citizen on the group’s website (see link below) the study examined 20 years of data (1990-2009) regarding doctors who have had “one or more clinical privilege actions,” meaning that they have had some or all of their hospital or emergency privileges withdrawn because of misconduct, incompetence or some other professional infraction. It then compared these numbers with the numbers of physicians sanctioned over the same period by state medical boards. The analysis yields a shocking result: nationwide, 55% of doctors disciplined by their hospitals suffered no further punishment from their state licensing board.

When thinking about the possible implications of this information for Oregon medical malpractice we can take some comfort from the fact that our state had one of the better records on this score. In Oregon, 41.48% of doctors who had some or all of their hospital privileges revoked over the study period suffered no state-imposed sanction. That number is obviously far too high, though it is better than what one finds in most other states (for comparative purposes: Colorado had the lowest rate of unsanctioned doctors at 31.63%; Hawaii was worst with a truly shocking 77.08%).

March 11, 2011

Fatal Oregon Truck Accident Kills Driver

by Matthew D. Kaplan

A truck driver from California died last week in an Oregon truck accident on I-84 near Rufus, east of Portland, according to The Oregonian.

The victim, identified by police as Lino Domingo Lopez-Hernandez, died as a result of an unusual chain of events that began with a blowout on his own vehicle. Sorting out any resulting Oregon personal injury or wrongful death claims that may eventually arise from the accident is likely to be a complex business.

According to the newspaper, the accident began to unfold shortly after midnight last Thursday as Lopez-Hernandez was driving his big-rig west on I-84. The truck lost two tires and an axel for reasons that remain unclear. Lopez-Hernandez immediately pulled over. He was walking along the side of the road looking for the missing pieces of his truck when a pick-up, also traveling in the westbound lane, hit the truck debris, hurling it into Lopez-Hernandez. “The flying debris sent him over a guardrail and about 200 feet down an embankment, where authorities found his body,” The Oregonian reports.

February 20, 2011

House Bill Seeks to Curtail Oregonians Rights in Medical Malpractice Cases

by Matthew D. Kaplan

With little public notice this week the House Judiciary Committee in Washington DC sent to the floor a proposed law that, if enacted, will dramatically curtail the right of Oregonians to receive just compensation in medical malpractice lawsuits. As laid out in the official summary of the legislation (click here to read the full summary at the legislative-tracking website Thomas.gov) the so-called Help Efficient, Accessible, Low Cost, Timely Healthcare (HEALTH) Act of 2011 would shorten the statute of limitations for most medical malpractice cases and make it much more difficult to win punitive damages in an Oregon medical malpractice case. Any defendant who managed to win in court despite these new rules would find that the law also places severe limits on the size of the damages a court can award.

The bill, sponsored by Rep. Phil Gingrey (R-GA), was first introduced late last month as HR 5 (the Senate version of the legislation, S 218, is sponsored by Nevada Republican John Ensign). It was hustled through the House Judiciary Committee earlier this month and passed out of committee on a voice vote – a stunningly fast timeline for such potentially momentous legislation.

Two of the most telling aspects of HR 5 are clauses that would shield the pharmaceutical and medical device industries from responsibility for their actions while limiting attorney’s fees in medical malpractice and medical wrongful death suits to a level that may discourage many attorneys from taking on such cases.

February 15, 2011

Portland Hospital Death Raises More Questions Than Answers

by Matthew D. Kaplan

On its surface it is an Oregon wrongful death story so unbelievable it reads like the plot of a prime time police drama: a man feeling ill and heading for the hospital suffers a heart attack, crashes his car into a wall inside the hospital’s parking structure only steps from the emergency room entrance… then lies there, unconscious, for 20 minutes before anyone notices him. When summoned to the scene, the police attempt to revive him while sending another officer running into the emergency room for help – only to be told that hospital protocol requires the police to call 911 first and then wait for a dispatcher to give a formal order for the hospital’s own ambulance to pick up a patient lying only steps from the emergency room door, according to an account published in The Oregonian.

The heart attack victim, Birgilio Marin-Fuentes eventually made it into the emergency room, but was pronounced dead a short time later. The week since this Oregon hospital death has been marked by finger pointing between the police and the hospital, Portland Adventist, a threat from a U.S. congressman to investigate the hospital and seeming incomprehension throughout the city at how bureaucracy could have gotten so badly in the way of what would seem to be simple common sense.

However this case is eventually resolved on a criminal level, it raises serious questions that may also need to be resolved in civil court, via a Portland wrongful death or Portland medical malpractice lawsuit. Even if there were compelling reasons to adhere to procedures designed to dispatch emergency care across town, rather than across the hospital’s own parking lot, one needs to ask, in turn, why the emergency protocols themselves were so rigid.

February 13, 2011

Driver in Fatal Portland Bus Crash Convicted in Multnomah Court

by Matthew D. Kaplan

The criminal phase of the trial of a Tri-Met driver responsible for what The Oregonian calls “the worst transit tragedy in modern Portland history” has reached a turning point. Earlier this month, Sandi Day was convicted on all six charges she faced stemming from last year’s fatal Portland bus crash.

According to the newspaper, the judge “ordered Day to pay more than $1000 in fines, perform 200 hours of community service and complete a traffic safety course.” She also faces the loss of her commercial driving license and possible additional fines if she does not “comply with her sentence within a year.” As I noted in a post early last summer, the accident has already led to changes in Tri-Met’s operating procedures.

Day drove her bus into five people last April as she executed an illegal left turn. According to The Oregonian, police testified at her trial that she kept driving for 2.5 seconds after hitting five pedestrians in a crosswalk at approximately 13 miles per hour. Two of the pedestrians were dragged beneath the bus and died. Three others were injured.