Emergency Rooms and Appendicitis

By Robert J. Adinolfi

November 29th, 2011

The rate of missed diagnosis of appendicitis is alarming in Emergency Rooms.  Every year, I meet dozens of injured people who were clearly misdiagnosed in an Emergency Room when they have an active appendicitis.

 Many factors are relied upon by the insurance industry as to why it is permissible for a physician to misdiagnose appendicitis.  Unfortunately, protracted legal costs could be alleviated if Emergency Room physicians took the easy step of performing a blood test, or ordering a CT Scan.  Both are simple and quick procedures, and can avoid the catastrophic consequences of a missed diagnosis of appendicitis. 

Appendicitis is quite treatable if caught early.  In that situation, a laparoscopic procedure with a minimal incision is required.  The recuperation is usually smooth.

However, if the appendicitis is misdiagnosed, the appendix could rupture, spilling purulent fluid into the abdominal cavity.  This can lead to multiple surgeries, sepsis, the need for an abdominal revision, or, in some cases, death.

The insurance industry fights missed appendicitis cases “below the belt.”  If someone is overweight, the defense lawyers will blame their girth on the reason the appendicitis was missed, and repeat the word “obese” in trial hundreds of times to influence the jurors into a bias, somehow as if the overweight person deserved the misdiagnosis. This is designed to take the jurors eyes off the true issue:  that a simple blood test or CT Scan would have diagnosed the condition.

If someone is left with a permanent scar, the industry claims it is simply “not a big deal.”  The industry drags out the cases in long court battles, and makes it financially unfeasible for injured victims to defend themselves.

Indeed, with something simple to diagnose, the insurance industry complicates the wrong by fighting the claim, improperly influencing jurors with misinformation.

The sad part is appendicitis is extremely diagnosable.   Abdominal pain is the classic complaint, 50% of the time located in the right lower quadrant of the abdomen.  Blood tests will show an elevated white blood count, and CT Scans will take an image of the appendix.  If the blood tests or imaging show a potential appendicitis, admission and surgical consult are warranted. 

Unfortunately, Emergency Room physicians and the insurance companies that back them do not feel every complaint of abdominal pain warrants the minimal cost of testing.  Instead, the rate of missed appendicitis rises, the care decreases, and the injured victim bears the true loss.

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Posted in Medical Malpractice, Misdiagnosis |

Emergency Rooms and Heart Attack Victims

By Robert J. Adinolfi

November 29th, 2011

Oftentimes, people having a heart attack are misdiagnosed in Emergency Rooms.  The loss of chance to treat a heart attack is devastating, as damage to the cardiac system does not restore itself.

Heart attacks are misdiagnosed for a number of reasons.  However, what is important is that any person complaining of chest pain must demand a number of studies, including diagnostic and blood tests.  These tests must be repeated, or else the heart attack may be missed, and diagnosed as something much more benign, such as GERD, indigestion, acid reflux, or sometimes, nothing at all.

Emergency Rooms are extremely overcrowded.  Physicians oftentimes are rushed to see patients, and will rely on what they feel to be is a “safe” diagnosis, something as simple as heartburn or acid indigestion.  For example, chest pain from a heart attack sometimes mimics the pain of GERD or acid reflux.  Classic heart attack chest pain may come and go, and if the physician happened to prescribe the patient some Maalox at the same time the chest pain went away temporarily, the doctor may mistakenly believe the Maalox fixed the problem, and wrongly assume the diagnosis to be GERD or acid reflux. 

In that situation, the patient is sent home with no cardiac or repeat cardiac testing.  The result is devastating, as the heart muscle becomes irreparably damaged. 

This happens all to often.  However, the insurance industry fights the claim as if the patient did something wrong, subjecting the injured victim to a protracted legal battle, when all that was required was a quick test.

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Posted in Medical Malpractice, Misdiagnosis |

Medical Malpractice – A case, but not a case?

By Robert J. Adinolfi

November 15th, 2011

Many times, I meet potential clients who have been told by their medical doctors “they should find a good lawyer” because they have a case.  Unfortunately, most of those times, there is a case; however, there really is no case.

As in any other lawsuit, malpractice cases involve fault and damages.  Damages being the injury suffered by the victim.  Unless the fault makes the injury worse, there is no claim worth pursuing.

For example, a person twists their ankle, and reports to the Emergency Room.  An x-ray is taken, and the radiologist reports the diagnosis as “no fracture,” only a sprain.  Based on the incorrect reading, the victim is told they can walk and was not given crutches to stay off of their feet.  Later, the victim learns that the ankle was in fact fractured, and that there was a misdiagnosis of their condition. 

Two scenarios are at play here:  First, assume that the victim stayed off of their feet.  In that situation, there is no case because, absent other circumstances, the fracture was not made worse as a result of the mis-reading of the x-ray.  The injured person did what any doctor would have told them to do anyway:  stay off of their feet because the ankle is broken.

However, assume the injured patient relied on the misdiagnosis, and put weight on the ankle, or moved it because they did not have crutches, thereby causing the fracture to become worse.  Here, the bones could become displaced because the ankle was not put in a cast or given crutches, preventing the ankle from moving, or keeping the person from putting weight on the ankle.  As a result, additional harm resulted because they moved their ankle.

In the two scenarios described, one suffered identifiable harm as a result of the misdiagnosis, and the other did not because there was no intervening complication; i.e., walking around on a broken ankle, from the misdiagnosis. 

Consequently, the doctor was “technically” right when he said to get a lawyer because there is a case.  However, upon further review, there is not a case, because there is more to a malpractice case than the fault of the doctor.

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Posted in Medical Malpractice |

Transvaginal Mesh Injuries and Legal Remedies

By Andrew M. Rockman

October 3rd, 2011

Between 2005 and 2010 there were enough injuries tied to use of this mesh, trial attorneys and the Food & Drug Administration began to look closely at the problem. As with any of these medical problems, the medical answers and alternatives rest with the doctors and the legal options or remedies rest with in the legal and judicial process.

Implants, variously referred to as transvaginal mesh, pelvic sling, or bladder mesh, had been tied to several different problems in unexpected numbers and severity. These included erosion of bodily tissue in the implant area, hardening of the mesh, perforation of bowel, bladder or blood supply, infection and pain, erosion of the mesh itself, and vaginal scarring. In addition there were reports of a recurrence of the pelvic organ prolapse that had led to the implant. Stress urinary incontinence was also added to the menu of related problems.

Government warnings were issued to both patient and physician. The question was raised as to whether the implant was any better or more effective than using methods other than the mesh. The question facing these patients, and by extension, injury attorneys is why this was allowed to happen and go underappreciated for so long, as the injuries mounted. As patients are facing corrective surgery and re-dealing with problems they had thought were corrected, a small number of attorneys are focusing on why this happened and what responsibility the manufacturer and/or doctor might have for this outbreak.

If you have been victimized by a medical problem or injury related to these implants, you should consider consulting with an attorney familiar with the problem and the available legal remedies.

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Posted in Medical Malpractice |

Birth Injury Statute of Limitations

By Colson Derby

September 20th, 2011

[Reviewed by Andrew M. Rockman, Esquire,
 Senior Partner, Medical Malpractice Department]

Although the New Jersey Statute of Limitations for a medical malpractice action is two (2) years from the date the patient / plaintiff knew or should have known he or she was victimized by malpractice, prior to 2004, an infant victimized by medical malpractice at birth was given a much more liberal timeframe.  He or she could file a lawsuit at any time up to the date of  their twentieth (20th) birthday.

However, parents and/or guardians of minor children should be aware that as of June 2004 (effective July 2004), the Statute of Limitations was decreased for a minor or infant suffering an injury at birth, now requiring that a lawsuit be filed PRIOR to the child’s thirteenth (13th) birthday.  It must be strongly emphasized that this CHANGE APPLIES ONLY to an injury suffered at birth or that occurs during the birthing process, as the result of the negligent act of a healthcare provider.

A minor that suffers an injury resulting from medical negligence, either during the course of infancy, childhood or adolescence, remains able to claim the benefit of the extended Statute of Limitations, lasting until their twentieth (20th) birthday.  For specific reference, see N.J.S.A. 2A:14-2.

The above is provided for informational purposes only.  If you believe your child may have any type of potential medical malpractice claim, you must and should always consult directly with an attorney as soon as possible to determine what timeframe limitation may be applicable to your child’s specific circumstances. There are other time restrictions that might apply, depending upon who committed the malpractice and where.  Again, you should consult with an attorney so that you know your rights and the obligations you have, to protect whatever claim you or your child might have.

If you believe you or your child may have been victimized by medical malpractice, please contact our office at (800) 432-LAWS.

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Posted in Birth Injury, Medical Malpractice |

Learn how to recognize misdiagnosis of jaundice for your newborn

By Andrew M. Rockman

July 14th, 2011

In a fairly recent case, a family received a substantial recovery for their brain damaged child. The recovery was based upon the failure of the doctors to properly diagnose a condition known as “jaundice/hyperbilirubinemia” and to initiate proper treatment. Aside from the very real tragedy their error caused, the case points out the error doctors sometimes make when they underevaluate the significance of jaundice in a newborn as a benign, transient or temporary condition, needing no testing or treatment.

The reality is that this misdiagnosis and reaction can allow “icterus” or yellowing of the skin and the whites of the eyes to go underappreciated, allowing it to move on to “kernicterus” and brain damage. The high levels of bilirubin in the baby’s blood and tissues and the resulting yellow skin, are not always a temporary condition that simply resolves. The error is in not recognizing and dealing with the potential severity of this often common occurrence. In this particular case, the baby’s skin color and feeding problems did not result in the necessary appreciation for the need for prompt billirubin testing and, sometimes, an exchange transfusion.

The tragedy is that the “kernicterus” is easily prevented. When the baby demonstrates jaundice, or yellowing of the skin, the doctor must know the baby needs treatment to avoid the seriousness of what happens when it is not. The billirubin, a yellow chemical produced in the blood travels to the liver where a chemical reaction is supposed to take place to remove it.

Sometimes the liver can’t remove enough billirubin and the amount increases, traveling throughout the body. If not treated, it can cause damage to the baby’s brain if it is allowed to stay in the body for too long.

An informed parent can be an important factor in helping to protect a baby.

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Posted in Birth Injury |

“Hot Coffee”… A Must See.

By Andrew M. Rockman

June 21st, 2011

There is a program coming on HBO Monday June 27th at 9 p.m. that I think all MUST watch. It deals with the distorted reporting surrounding the famed “McDonalds’s coffee” case, where a woman filed suit after being seriously burned when the coffee spilled on her lap. The media made a joke out of it and misreported what actually happened, causing and allowing widespread mocking commentary about abuse of the legal system.

 The program delivers the truth as to what really happened to the injured woman, how severely she was injured and what McDonalds had done and failed to do, that led to this injury. It is a warning to all of us that what we hear and read is often delivered to us by those whose interest is in distortion and manipulation of opinion, not the passing on of truth. It should make us all wary of those whose financial self interest and desire to remove the level playing field of our legal system, can so easily control and manipulate a belief that sound bite and headline is the actual story.

It provides a warning we all need to see and hear, so that we are aware we must protect our right and access to the truth from those whose desire is to tilt the playing field and the information from which we develop and act on our beliefs.

Andrew Rockman

partner

Pellettieri, Rabstein & Altman

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Posted in Medical Malpractice |

Brain Injury and Proof Problems Facing the Injury Attorney

By Andrew M. Rockman

May 27th, 2011

Brain injury comes in many forms, shows up in different ways and is often very hard to detect and even harder to prove.

The most obvious brain injuries are those involving a direct trauma to the brain with evidence of bleeding or tissue damage. Even this type of brain injury can have “proof” problems when it comes to portraying the specific injury to a jury.

A brain injury that has visible interruption of brain tissue by bone or other fragments is not the problem. It is the type of brain injury where the subtleties of MRIs or CT Scans must be interpreted. This creates the potential for a dispute as to whether a portion of the brain is showing evidence of injury, or simply some shading that invites argument as to what it is, what caused it, when it started, whether it has any significance or explains any complaints.

The most difficult brain injury to portray and to prove is the one in which the radiologic evidence is scant, absent or open to interpretation. These particular injuries are described with the broad term “closed head injuries”. They cause proof problems for the injured person and the attorney when there are no tests that actually show tissue damage or blood in or around a portion of the brain. 

To put it simply, this type of brain injury can’t be seen or visualized with present medical imaging tools. That leaves the injured party having to get around the “if you can’t see it, it probably doesn’t exist” defense.

Such a brain injury is frequently interpreted through neuropsychological testing designed to show inadequate or changed brain function through the performance of psychological testing. This type of testing is designed to show abnormal brain function. These test results raise the question as to what was “normal” for this person before the accident. Often this must be determined in a person who has had no previous record of brain function or IQ testing, and requires having to rely on a subjective description of what the person could do before the injury.

The patient may complain about change in mental abilities or normal intellectual functioning. Regrettably, while very real to the injured person, these changes may not show up on any imaging study. The injured person and their attorney are left in the unenviable position of trying to convince a jury that the complaints are real.

The hurdles and prejudice of the argument that the brain injured victim and his or her attorney must overcome, revolve around the accusation that it is “only in their head”. This also implies that symptoms are “made up” and controllable by the one complaining.

The neuropsychological testing is often the only way to inject objectivity into the courtroom so that there is some form of test result “picture” to support and supply a reason for the plaintiff’s description and complaint of abnormal brain function and/or mental abilities. The battle lines will involve a dispute as to which tests are recognized or believed to confirm a change in brain function and how those test results were performed and interpreted.

Until medical technology advances, winning and losing may depend upon the credibility of the injured person, the severity of the described head trauma, and the credentials and persuasive ability of the neuropsychologist on each side.

Posted in Brain Injury, Medical Malpractice |

A Medical Malpractice Crisis?

By Robert J. Adinolfi

May 27th, 2011

Is there a Medical Malpractice crisis? The answer depends on whom you ask. As a plaintiff’s Medical Malpractice attorney, it is clear that the crisis falls on the injured patient whose life has been compromised. The only harm to the doctor is in the wallet in terms of his/her insurance rates increasing. To the injured victim, the harm is quite different.

In New Jersey, a plaintiff cannot simply file a medical malpractice lawsuit. Unlike a slip-and-fall case or a motor vehicle accident case where a person can sue immediately, malpractice involves an in-depth investigation into whether or not the attorney can separate the pre-malpractice injuries from those that occurred post malpractice. Even in scenarios where it is clear that a physician committed a mistake, plaintiffs often lose. This is because every malpractice case involves a pre-existing injury. If the plaintiff is unable to establish that the injury was made substantially worse the case will fail, even if it is convincingly proven that there was malpractice.

A case example is a missed breast cancer diagnosis. A woman goes in for routine mammography which reveals a malignancy that goes undetected. A year later, the same malignancy is discovered and reported to the patient. Clear malpractice? It is, but unless it can be proved that the cancer grew or became worse, the plaintiff will lose even though it is clear the cancer was missed earlier.

As a New Jersey malpractice lawyer, it is not easy to explain to someone that a year of cancer going undetected is not actionable unless the cancer spread substantially. Unfortunately, that is the reality a malpractice lawyer faces in telling a cancer victim that, even though they could have received treatment a year earlier, there will be no case unless the diagnosis is significantly worse than it would have been had the patient received timely treatment.

Posted in Medical Malpractice |

Medical Malpractice: Misread Of Imaging Studies

By Andrew M. Rockman

May 27th, 2011

The core of many medical malpractice cases involves the misread of one of the various forms of imaging studies: X-ray, MRI, CAT scan and Mammography. As with any medical malpractice claim, the malpractice attorney must start with the ability to prove the mistaken interpretation. That is done through a review of the matter by a qualified radiologist experienced in the technique and interpretation of the image in question (the “expert”).

What cannot be forgotten is that the misinterpretation is only the starting point of the medical malpractice case analysis. The expert has to try to recreate the original radiology process, reviewing the studies with the same information in mind that the alleged malpracticing radiologist would or should have had at the time of the original interpretation. The expert’s opinion must not only support a misread or incorrect analysis, but also that there was no reasonable or supportable basis for that incorrect interpretation. A misread cannot stand alone.

This is so, because the expert has the benefit of knowing how it all turned out, and is looking at the images with hindsight – i.e. the knowledge there was something there that was eventually discovered. The expert must be able to show how the image could not and should not have been misinterpreted, given what the alleged malpracticing radiologist should have known about the reason for the imaging study and the historical factors he or she had to know about the patient.

That approach applies, no matter what type of imaging study is being analyzed from the perspective of a medical malpractice case. The problem with any medical malpractice suit, arising from a misread of an imaging study is that the alleged malpracticing doctor did not cause the diagnosed condition. The most that can be said is that he or she delayed the diagnosis.

This leads to the next hurdle in a medical malpractice case: proving the delay caused or substantially contributed to a significant change in prognosis or successful treatment options. The medical malpractice attorney must be aware that it is the disease that caused the injury or ongoing problem. He or she must be aware of the medicine, both radiological and in whatever area the missed disease or injury process is, so that proper evidence is gathered to show the radiologist’s miss triggered the significant worsening in the treatability and treatment outcome.

Unlike some other areas of medical malpractice litigation, there are always at least two [2] areas of medicine involved in establishing the radiological malpractice: radiology and those other areas having to do with the resulting injury or disease and the impact of delayed diagnosis and treatment.

Posted in Medical Malpractice |

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