Kentucky Injury Lawyer Blog

According to WMYT, Dr. Jackie Maxey is being accused by another doctor in town of engaging in unprofessional conduct and the Kentucky Board of Medical Licensure has issued an emergency order of restriction.

The Board's report give examples of misconduct by Dr. Maxey. For instance, it sayd that Patient A as referred to in the report, is a 17 year old girl who visited Dr. Maxey with strep throat, but instead she claims that Dr. Maxey asked her mother to leave, then performed a PAP smear and didn't even look at her sore throat.

The report goes on to discuss a Patient B, who is a 21 year old who claims in one year she had 20-30 pelvic exams by Dr. Maxey. She also claims she had to allow the doctor to examine her in order for Maxey to write a prescription for another ailment.

When confronted by the board Maxey told them it was his passion to find and treat Gynecological Cancer because his mother died from the disease.

Maxey must be accompanied by a chaperon when doing his exams but the Board still allowed him to practice medicine. However, the Board indicated that Dr. Maxey could face criminal charges.

Bahe Cook Cantley & Jones attorney Larry Jones, who is experienced representing sexual abuse victims says, "I've got a feeling that this is just the tip of the iceberg. If a doctor is performing unnecessary pelvic exams, it is a tremendous violation of his patients' trust. This is just wrong!"

For more information about the rights of those who are sexually abused by a person in a position of trust, contact Larry Jones directly at 1-866-587-0002 or by email: click here to email Larry.

In a landmark decision, the Supreme Court of Illinois has struck down a legislatively enacted “cap” on damages in medical malpractice trials. Verdict or jury “caps” are laws created by the legislature to prevent victims of medical malpractice or other serious injury from being fully compensated by those who injured them. The laws limit the amount of money juries are allowed to order defendants to pay to those people they hurt. The cap in Illinois, $500,000, was actually relatively high compared to some states that have caps as low as $200,000.

Many legislatures enact these caps with the completely mistaken belief that they will somehow help reduce the cost of healthcare or lower doctors insurance premiums, and to combat what the proponents of tort reform call “frivolous” lawsuits. However, many states, like Texas, that have had caps for almost a decade or more still continue to see increases in health costs and medical malpractice premiums despite these artificial caps that do nothing but prevent justice from being given.

Brian D. Cook, medical malpractice attorney with Bahe Cook Cantley & Jones PLC states that “legislative caps on personal injury awards are simply an attempt by the legislature to take the power away from the ordinary citizen in one of the truly democratic institutions that we still have – the jury process. By substituting their own opinion for that of the individual, the juror, legislators overstep their bounds and unreasonably trample the American justice system.”

Donnna Delgado, a St. Petersburg, Florida woman has alleged in a recent lawsuit that her dental surgeon left an inch-long piece of steel in the wound that was created in what was supposed to be a routine surgery.

The drill bit was finally found after almost one (1) year lodged in Delgado's right maxillary sinus. She wound up in a hospital, where the medical staff detected the foreign object. She was referred to another hospital for surgery.

Oral surgeon, Ralph Eichstaedt, first saw Ms. Delgado in 2008 and recommended pulling two decayed teeth, the suit said. Delgado returned two weeks later for the procedure.
What is odd about this case is that Ms. Delgado is a nurse for an insurance company; she had premium dental coverage – therefore, cost was not the issue.

In an interview Ms. Delgado’s attorney described her satiation: "She was discharged, and they said, 'Get over it,' " he said. "When she went back to complain, they kept saying, 'This is normal,' and 'Stop complaining.' "

According to the lawsuit, which asks for unspecified damages and a jury trial, Delgado was experiencing dizziness and numbness on her right side, where the burr was.
Delgado still has not fully recovered from the effects of the incident, which could ultimately include nickel poisoning her lawsuit alleges.

For more information about the rights of individuals seriously injured due to medical negligence, please call John A. Bahe, Jr. directly at (866) 587-0002 or e-mail him at john@bccjlaw.com.

We recently discussed new findings by the Agency for Healthcare Research and Quality, a division of the U.S. Department of Health and Human Services regarding medical error and injury to patients. We also provided links in that article to lists created by AHRQ for healthcare providers to use to make sure that their facilities were doing all that they could to help reduce and eliminate medical error that harms patients.

This got us wondering about how big the problem actually is. Bahe Cook Cantley & Jones PLC has helped many people harmed and injured by medical error and the negligence of medical professionals, but we were suprised to learn about the extent of the problem. AHRQ states that a "recent report by the Institute of Medicine estimates that as many as 44,000 to 98,000 people die in U.S. hospitals each year as the result of medical errors. This means that more people die from medical errors than from motor vehicle accidents, breast cancer, or AIDS." Those numbers are, in a word, astounding. Another word might be "unacceptable."

While personal injury attorneys usually are involved in tragic cases like this too late to prevent any of the damage, we want to help potential victims of medical error before they are injured or killed. Fortunately, there are resources like AHRQ's 20 Tips to Help Prevent Medical Errors. Hopefully this list can help you protect yourself from being a statistic of medical error.

Taking these precautions can be helpful in other ways. Our experience with clients, cases, and trials at Bahe Cook Cantley & Jones PLC has lead us to recognize that many times, jurors want to blame the patient for his or her own injuries. While this might seem crazy, it is true. For example, often times in what are commonly referred to as "missed diagnosis cases" the jury will hold it against the patient that they didn't seek a second opinion after getting a clean bill of health from the doctor who, for example, failed to see that cancer on the MRI! Why in the world would a patient get a second opinion if the doctor they trusted told them there was nothing wrong with them? Using this list and preparing yourself as a patient can help combat that unfair, but real, perception that jurors have.

Use this list to protect yourself and your loved ones. If it isn't enough, or if you need to talk with us about someone you know that was harmed by medical error, please visit us at www.bccjlaw.com for more answers.

Despite what large parts of the healthcare and insurace industries, politicians, and other "tort reform" groups would like the American people to believe, we all know that medical error can cause injury and even death. The odds are you have heard stories of patient being harmed or worse because of errors by nurses, doctors, physician's assistants, or teams of medical professionals working together. Many times, fortunately, the damage is only temporary and can be fixed by other, competant medical professionals. However, all too often, the damage is permanent. Either way, the problem is real. Attemps to cover-up the problem or blame some phantom healthcare litigation crisis will not make it go away.

You may be suprised to learn that the U.S. Department of Health and Human Services recognizes the problem as well. Since 1999, HHS was worked to identify, standardize, encourage reporting of, and eliminate medical error on a national scale. Their website provides a year-by-year breakdown of projects, initiatives, studies, and publications that have tried to minimize the damage done by medical error. The effort has been headed by the Agency for Healthcare Research and Quality.

Interestingly, over this decade of work the Institute of Medicine "noted that many of the errors in health care result from a culture and system that is fragmented, and that improving health care needs to be a team sport. Research indicated that mistakes were not due to clinicians not trying hard enough; they resulted from inherent shortcomings in the health care system." This conclusion squares well with knowledge that plaintiff's lawyers have learned over years of trying cases: that many times, the error cannot be blamed on any one individual, but rather is usually a series of unfortunate events with multiple, untaken opportunities for correction that culminate that cause the injury.

This website is a must for anyone who is preparing for or undergoing a stay at a hospital or other healthcare facility. These lists of best practices 30 Safe Practices for Better Health Care and 10 Patient Safety Tips for Hospitals are a great way to see if the healthcare facility that you are a patient of is actively working to make their environment less likely to have medical errors resulting in harm to patients. There is much more valuable information at the website that is too voluminous to link to here, but you should definitely check it out.

If you or a loved one have been injured by unnecessary medical error and would like to talk with someone about it, please contact the personal injury attorneys at Bahe Cook Cantley & Jones PLC to see if we are able to help.

As a public service effort the American Association for Justice (“AAJ”) has recently released a series of web videos providing educational material to counter the one sided, often biased information that has become a staple of special interests in the realm of medical negligence legal cases.

It has become increasingly evident over the months of negotiation that “tort reform” may surface as an issue of compromise in the national health care debate. In a statement from its leadership the AAJ communicated its strong desire to educate the public, and the politicians alike, on the very real issue of injuries caused by medical error.

"98,000 patients are killed annually by medical errors," the group says. "That’s like two 737s crashing every day for a whole year. Would we blame the passengers or the airlines? Tort law changes won’t fix health care.” For more information please access the groups website at www.justice.org.

Medical Malpractice lawyers in Kentucky--along with the rest of the country--want to scream every time they hear politicians and talking-points reciters claim that so-called "frivolous" medical malpractice lawsuits are driving up health care costs. That's because we know that even egregious cases of medical malpractice often result in verdicts in the doctor's favor, and no lawyer with any sense would ever risk their own money prosecuting a frivolous one.

The New York Times recently published a great Q&A with an Ivy League professor who is an expert on the costs of medical malpractice and medical malpractice lawsuits. Professor Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law and author of “The Medical Malpractice Myth,” believes that making the legal system less receptive to medical malpractice lawsuits will not significantly affect the costs of medical care, and will likely result in more malpractice by doctors and hospitals (which would further increase healthcare costs.)

Here's the NYT Q&A with Prof. Baker and writer Anne Underwood.

Q. A lot of people seem to have taken up the cause of tort reform. Why isn’t it included in the health care legislation pending on Capitol Hill?

A. Because it’s a red herring. It’s become a talking point for those who want to obstruct change. But [tort reform] doesn’t accomplish the goal of bringing down costs.

Continue reading "Kentucky Medical Malpractice Lawyer: Capping Damages in Malpractice Cases Not Answer To Health Care Reform" »

In an interesting decision, a Kentucky appeals court has reversed a ruling for summary judgment in favor of Whitney Jones, M.D. and Midwest Gastroenterology Associates’. The defendants were granted a judgment due to the fact that the plaintiff, Ms. Geralyn Gaes, did not have medical expert testimony as is generally required in medical malpractice cases. Contrary to what many legal practitioners believe is a requirement in a case such as Ms. Gaes (medical negligence), a three judge panel consisting of Judges Wine, Acree and Stumbo found that Ms. Gaes did not need expert testimony and that summary judgment was not proper.

Dr. Jones is a gastroenterologist and works for Midwest Gastroenterology Associates. On May 12, 2003, Dr. Jones performed a colonoscopy on Ms. Gaes. The colonoscopy went well and Ms.Gaes was discharged. Unfortunately, Ms. Gaes developed abdominal pain one day following her surgery; therefore she called Dr. Jones' office and spoke with Nurse Practitioner Melissa Jones. This phone call is the basis for the underlying case. Ms. Gaes' husband, who spoke directly with the nurse practitioner testified in his deposition that he was never advised to have his wife schedule an abdominal x-ray to check for internal injuries; conversely, the nurse practitioner testified that this advice was given to Mr. Gaes. Ms. Gaes eventually did have such an x-ray which showed air in her abdomen.

Dr. Jones moved for summary judgment when the plaintiff did not retain a medical expert to testify on her behalf. The defendant argued “[i]t is an accepted principle that in most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122,124 (Ky. 1991). Dr. Jones position is not unique, and is universally understood to be the proper application of the law in cases involving complex medical negligence issues. However, in Perkins v. Hausladen, 828 S.W.2d 652 (Ky.1992) an exception was carved out that the required expert testimony can “come in the form of admissions by the defendant doctor or when the circumstance is such that the experience of laymen can recognize negligence."

In the case at bar, the appellate court found that genuine issues of material fact could be present if a jury were to believe that Ms. Gaes was not advised to get an abdominal x-ray. She could then prove her case under the exception outlined in Perkins. Therefore, it would not be impossible for the plaintiff to prevail at trial (even without the benefit of medical expert testimony) and therefore summary judgment was improper in this case.

Yesterday, the Kentucky Supreme Court, in a unanimous decision, recognized spousal loss of consortium in wrongful death cases. This change allows the spouses of those killed by the carelessness or rule-breaking of others to seek redress for the loss of companionship of their husband or wife. Prior to this ruling, Kentucky was one of only four states that did not recognize spousal loss of consortium in wrongful death cases.

The question Kentucky personal injury attorneys who represent either the victims' families or defendant corporations in wrongful death cases are asking today is, what does this decision mean for current cases (cases where the death occurred prior to this decision).

I have not comprehensively researched this issue, but here are some initial thoughts after discussing this with colleagues who, like me, represent the families in these type of cases.

First, if a lawsuit has not yet been filed, clearly a claim for loss of consortium can be brought. It would be ridiculous for the defendant to argue that they would have been more careful had they known that the victim's spouse could have sued for loss of consortium.

Likewise, if a lawsuit has been filed, but the statue of limitations on the loss of consortium claim has not run, the complaint can be amended to add the spouse as a party and a loss of consortium claim on their behalf.

The real question is, what about active cases in litigation where the statute of limitations has run on the loss of consortium claim (generally only a year under Kentucky law, even though you generally have two years to bring a wrongful death claim on behalf of the estate of the deceased)?

Continue reading "Kentucky Loss Of Consortium Law: What Does Change In Law Mean For Active Wrongful Death Cases" »

A nonsensical interpretation of Kentucky law has been overturned by the Kentucky Supreme Court--bringing Kentucky law out of the dark ages and in-line with the prevailing law throughout the country. Spouses who have their husband or wife taken from them prematurely as a result of the carelessness of someone else can now be compensated for their loss.

Prior to this ruling, Kentucky was one of only a few states that did not allow a surviving spouse to sue for loss of companionship (called "consortium" in legal parlance) in wrongful death cases. The sad irony was that if the injured person survived the accident, their spouse was entitled to be compensated, but if the wrongdoer killed the injury victim, their spouse was denied compensation for the loss of their husband or wife.

In addition to exposing some flight safety issues, the Flight 5191 Comair crash in Lexington Kentucky on August 27, 2006, which took 49 lives needlessly, also brought this nonsensical defect in Kentucky law into the spotlight.

Parents can sue for loss of companionship when the victim is their child. Children can seek damages when the victim is their parent. And a spouse could claim loss of companionship when their husband or wife was injured but survived. But Kentucky courts had interpreted KRS 411.145, Kentucky's loss of consortium statute to mean that the spouse had no claim if their partner died.

However, in a unanimous opinion written by Justice Mary Noble, the Court found that this interpretation is not supported by the plain language of the statute and could not have been what the legislature intended when enacted the law. In so doing, the Court ruled that the husband of Billie Carol Shreve, who was killed as a result of alleged medical malpractice in Ohio County, Kentucky, can seek compensation for her loss of companionship after his death, as can the spouse of any person who was killed by unlawful behavior in Kentucky (to the extent that the claim is not barred by the statute of limitations).

The Court said:

It is apparent that the kinds of damage elements enumerated in [Kentucky's loss of consortium statute, KRS 411.145] are those that describe the personal relationship, mental and physical, between spouses. It is equally apparent that the pain and deprivation coming from loss of such interactions does not magically disappear the day a spouse dies. It defies common sense to put a value on such losses while a spouse is lying incapacitated, but to say the loss is worthless after death. While grief and loss are borne in differnt ways by different people, it is nonetheless a common part of the human condition [-- one] that a jury can properly evaluate based on the facts and circumstances of each case.

Estate of Bille Carol Shreve v. Ohio County Hospital Corp., 2008-SC-000211-DG.

Here's a link to the entire opinion: http://opinions.kycourts.net/sc/2008-SC-000211-DG.pdf .

Commentary by Shawn Cantley, a Kentucky attorney who represents families of injury victims in wrongful death cases:

"Prior to a 1970 ruling by the Kentucky Supreme Court, a husband had a claim for loss of his wife's companionship, but a wife did not have a claim for loss of her husband. All unfair laws eventually are undone, sometimes it just takes a while for the forces of change to prevail over the status quo. Anyone who cares at all about fairness and justice in the world is applauding today's decision by the Court."