Heparin is one of the most basic medicines used in medicine, the primary anticoagulant used by hospitals, which is why it’s part of the World Health Organization’s List of Essential Medicines.


But anticoagulants are so powerful that they are used as rat poison. Anticoagulants make a patient 10 times more likely to develop intracerebral hemorrhage, and thus all of them — Heparin, Coumadin, warfarin — have to be used with the utmost caution. Continue Reading When Will Hospitals Learn How To Use Heparin?

This morning, MedPage Today — which should know better — began their “Morning Break” with this description and link:

An analysis of closed claim data from The Doctors Company suggests that physicians spend about 10% of their professional life dealing with malpractice claims, but most of those claims are closed with no money paid to the plaintiff.

Goodness! That sounds incredible. Turns out, it is incredible. In fact, it’s false.

The linked post by “The Doctors Company” at The Doctor Weighs In says:

The average physician spends over 10 percent of his or her career consumed in defense of an open malpractice claim. For the average neurosurgeon, that number is 25%—that’s a quarter of a career dealing with the intense emotional stress of defending your reputation and livelihood.

And the majority of those claims close with no payment to the plaintiff. That means the average U.S. physician in every specialty spends a significant portion of his or her career in court defending malpractice claims, but the overwhelming majority of those claims are found to be at best fruitless, and at worst frivolous.

These numbers come from a RAND Corporation objective analysis of the claims database of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. According to Richard E. Anderson, MD, FACP, chairman and CEO of The Doctors Company, these numbers show that our medical malpractice litigation system is broken—and must be fixed.

The only support given for any of these assertions is this YouTube video, where Dr. Anderson makes the same claims.

But there’s a problem: the RAND Corporation’s “objective analysis” never said anything like that. Continue Reading The Doctors Company’s Dubious Medical Malpractice Statistics

Imagine you are a medical malpractice attorney. Your client, in the hospital for surgery or childbirth or some other invasive procedure, developed an nasty infection, resulting in permanent injuries or death. You order their medical records and their billing records, and you notice that their insurer (it can be a private insurer or Medicare) refused to even pay for treatment of the infection as a “never event.”  You settle on two negligence theories to investigate: whether the hospital-acquired infection was preventable and whether the infection was properly treated.


(Let’s make this hypothetical easy and assume the infection is one of the more common pathways, like central line / bloodstream, pneumonia, or urinary tract infection, and one of the more easily recognizable nosocomial pathogens, like MRSA, Clostridium difficile, or Pseudomonas aeruginosa.)


Now what? Either because you’re a cautious attorney, or because you’re in a state with a certificate of merit requirement, the first thing you do before filing a lawsuit is retain a qualified expert physician, and maybe a nurse as well, to review the case. The nurse gets back to you first, and says the documentation suggests inadequate wound care prior to the diagnosis of the infection, and several undocumented hours when the patient’s vitals weren’t checked. (They refrain from giving you much more by way of an opinion, because that would involve a “medical diagnosis,” which is, by law, outside their expertise.


The physician gets back to you and says they’ve seen this same patient course before, and they’re “sure” it was preventable, and that the hospital failed to diagnose it and properly treat it for about 6 hours. “They never should have had the infection in the first place,” the doctor says, “but the delay in treatment probably didn’t change their overall course too much once the infection took root.” Then, the doctor adds, “I don’t doubt the infection was preventable, but I can’t tie that specific infection to the hospital’s negligence for certain.”


The words “for certain” worry you, because at trial you need to prove both that the hospital was negligent in their infection-prevention measures and that the negligence caused the infection, and most states you know of require a plaintiff prove medical malpractice with expert testimony given “to a reasonable degree of medical certainty,” a dubious and ambiguous phrase, but one that’s the law. Do you have enough to win your case?

Continue Reading Proving Negligent Hospital-Acquired Infection Through Bacterial Genes

It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.

For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.

There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroomContinue Reading Defense Lawyer Sanctioned For Expert Witness Intimidation In Medical Malpractice Case

The New England Journal of Medicine released a new study in today’s issue, Malpractice Risk According to Physician Specialty, which concluded:

There are few recent estimates on the likelihood of malpractice claims and the size of payments according to physician specialty. Using physician-level malpractice claims from a nationwide liability insurer, we found substantial variability across specialties in each of these descriptors of liability risk. Specialties in which the largest proportion of physicians faced a claim were not necessarily those with the highest average payment size. For example, physicians in obstetrics and general surgery — both fields that are regarded as high-risk specialties — were substantially more likely to face a claim than pediatricians and pathologists, yet the average payments among pediatricians and pathologists were considerably greater. …

Our study uncovered an important aspect of malpractice liability: the high likelihood of claims that do not result in payments to a plaintiff. Annual rates of claims leading to indemnity payments ranged from 1% to 5% across specialties, whereas rates of all claims ranged from 5% to 22%. Our projections suggest that nearly all physicians in high-risk specialties will face at least one claim during their career; however, a substantial minority will not have to make an indemnity payment.

The study’s authors tied this all back into the core concern among tort reformers — “the perceived threat of malpractice among physicians” — but I think the real question should be, why is there so much medical malpractice?

We know from the 2006 study by a group at Harvard Medical School (which was also published in the NEJM), “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits,” that our medical negligence tort system gets it right three-quarters of the time, and, when it gets it wrong, favors the doctors.

The Harvard study found that three-quarters of lawsuits that resulted in compensation indeed involved bona fide malpractice, while only one-tenth of paid claims involved injures not caused by medical malpractice — and the plaintiffs in those cases received far less than the plaintiffs who had injures which even a panel of doctors thought were caused by medical malpractice. While only one-tenth of paid claims did not involve malpractice, one-quarter of bona fide medical malpractice victims did not recover any compensation. (I previously discussed the Harvard study here and here.)

It’s simple to connect the dots between the 2006 study and the current studies:

  • if 1% to 5% of doctors pay malpractice claims every year, and
  • even a panel of doctors agree that three-quarters of those paid claims involve bona fide malpractice, and
  • there’s also substantial rate of bona fide malpractice cases that don’t turn into successful claims, then:
  • between 1% and 5% of doctors commits malpractice serious enough to warrant a successful lawsuit every single year.

Little wonder, then, that the economic cost of malpractice is $20 billion annually — more than five times the cost of the entire malpractice system, insurance premiums, lawyers and paid claims included.

The study also added some empirical data about the relationship between particular specialties and the likelihood & size of claims:

Across specialties, the mean indemnity payment was $274,887, and the median was $111,749. The difference between the mean and median payment reflects the right-skewed payment distribution. Specialties that were most likely to face indemnity claims were often not those with the highest average payments. For example, the average payment for neurosurgeons ($344,811) was less than the average payment for pathologists ($383,509) or for pediatricians ($520,924), even though neurosurgeons were several times more likely to face a claim in a year. The estimated correlation between the proportion of physicians with a claim and the average payment amount was 0.13 (P=0.52). The correlation between the proportion of physicians with an indemnity payment and the average payment was similar and was not significant. This suggests that factors driving the likelihood of a claim are largely independent of factors that drive the size of a payment.

That’s not surprising to medical malpractice lawyers. When considering whether or not to recommend litigation, we don’t just tell the clients with the largest damages “yes” and then work our way down, saying “no” at some arbitrary dollar amount.

The recommendation for litigation involves a balancing of factors:

  1. the likelihood of proving the physician breached the standard of care;
  2. the size of the provable damages that can be connected to the negligence;
  3. the predicted cost and duration of the litigation.

Incorporated within #1 and #2 are details specific to each specialty. Focus in particular on the “connected to the negligence” part — proving causation is simple in slip-and-fall cases but complicate in a wide variety of potential malpractice claims.

Pediatric malpractice claims, for example, are rare given the nature of what pediatricians do, or rather what they don’t do: they don’t typically diagnose or treat acute conditions. Pediatric malpractice litigation thus typically arises when a pediatrician fails to diagnose (or properly treat) a chronic condition, one that worsens during the malpractice and becomes either harder to treat or untreatable, an uncommon but devastating situation. Otherwise, pediatric malpractice goes under the radar, so to speak.

In contrast, surgical malpractice claims are more common because surgeons treat acute conditions and because the causal connection between the alleged malpractice is quite clear. The “causation” step thus typically isn’t a problem: the improper technique in surgery and the complications that arose were plainly “caused” by the negligence.

All in all, a useful an interesting study, one that hopefully brings us a little closer to the real issue: the need to reduce the volume and frequency of medical malpractice.

Last month the American Journal of Medicine published a new study (“Longer Lengths of Stay and Higher Risk of Mortality among Inpatients of Physicians with More Years in Practice”) with the unexpected conclusion that hospitalized patients were more likely to die or stay long in the care of an experienced physician than in the care of a recent graduate from residency:

According to findings in the American Journal of Medicine, patients whose doctors had practiced for at least 20 years stayed longer in the hospital and were more likely to die compared to those whose doctors got their medical license in the past five years. …

Over the course of the study, there were 59 different attending physicians. The researchers divided them up based on how long they were practicing: five years or less, six to 10 years, 11 to 20 years, or more than 20 years. …

At first glance, compared to patients with the newest doctors, those with the most experienced physicians had more than a 70 percent increase in their odds of dying in the hospital and a 50 percent increase in their odds of dying within 30 days.

However, when the researchers took into account how sick the patients were, they found that only the sicker patients — those with complicated medical problems — were at higher risk in the hands of the more experienced doctors.

Southern’s group also found that while the doctor’s experience played a role in how long patients stayed in the hospital, it also mattered how many hospitalized patients he or she was taking care of.

When doctors weren’t very busy, they kept patients in the hospital for roughly the same average time no matter how many years of experience they had. But when they did have a lot of patients to see in the hospital, those with more than 20 years of experience kept patients there about half a day longer than their peers who’d been practicing for less than five years.

Description from Reuters. The authors suggested that the younger doctor’s “familiarity with more current guidelines and practices” explained the difference, and suggested requiring periodic re-certifications. Scepticemia notes some possible confounding variables and sample size issues, but on the whole the study’s conclusions look robust.

We have a fair amount of experience investigating medical mistakes around here, including malpractice by hospital residents, so let me offer another possibility.

There is a misunderstanding about medical malpractice law which goes like this: if a doctor is faced with multiple potential diagnoses and treatments and the doctor chooses the wrong one, the doctor will be liable for medical malpractice.

Such myth is not and has never been the law. Continue Reading Medical Malpractice, Errors in Judgment, and The Beginner’s Mind

When I was in law school, I took Federal Courts, a notoriously difficult and complicated class, with Laura Little, who taught it with grace and style. (Law students, take note: she wrote a commercial outline with rave reviews.) Afterwards, I told her how much I liked the class, and asked her what I should take next (law students, again take note: great way to get recommendations for classes) and she pointed me to Michael Libonati, whom she said was “probably the smartest teacher on the faculty.”

With a recommendation like that, I dutifully took his State and Local Governments class, not realizing until I was in the class that it wasn’t merely an interest of his, but a subject on which he had written a four-volume treatise.

Anyone who studies State and Local Government law as a field comes quickly to a simple realization: there is even less “law” among states and municipalities than there is “international law” among nations. Every state conducts itself in an entirely different manner, and within states the law is changed to suit the circumstances. In Pennsylvania, for example, doesn’t have just cities or townships. As the Pennsylvania Legislator’s Municipal Deskbook says, Pennsylvania has one first class city, one second class city, one second class-A city, 53 third class cities, 961 boroughs, one incorporated town, 1,548 townships (91 first class; 1,457 second class), 501 school districts and 2,015 authorities, with different rules applicable to each of them.

That sort of diversity of legal relations isn’t necessarily a bad thing — Philadelphia, Pittsburgh, Harrisburg, Erie, Altoona, and rural communities with fewer than 5000 people are not merely different cities, but different types of cities, and so need to be governed differently — but it does make it exceedingly difficult to glean any sort of “legal principles” from the laws of states and local governments. Tailor-made law is more political policy than legal theory.

Before, during, and after law school I’ve always been a bit of a legal realist. At some point I was grousing to Prof. Libonati about a handful of state Supreme Court opinions about zoning law in which the wealthy real estate developers always on their challenges against the local boards but the individual homeowners always lost when I asked him, “is anything in the law real or are these opinions all just rationalizations?”

Burdens are real,” he replied briskly as if he had considered and answered similar questions before. “Burdens decide cases.”

Which brings me to the inspiration for this post. I hadn’t intended to write again so recently about emergency medicine malpractice, but last week Walter Olson sent WhiteCoat the opinion in King v. St. Barnabas, a first-responder negligence case in which a New York appellate court reversed the trial court’s entry of summary judgment in favor of the defendants. As the opinion recounted:

In this case, involving allegedly negligent resuscitation efforts by a team of first responders, we revisit the vexing question of the degree of certainty necessary to establish legal or proximate cause in a medical malpractice action.

By definition, victims requiring resuscitation are found in grave condition from which the likelihood of recovery may be negligible. These circumstances, however, cannot excuse first responders from all responsibility when they fail to abide by professional standards. Negligent resuscitation attempts — while not a but-for cause of the victim’s distress — may nonetheless contribute to a death so as to make the imposition of liability appropriate. …

In February 2009, defendants moved for summary judgment dismissing the complaint, arguing that the opinion of their medical expert established that the emergency medical treatment rendered to Murray was within accepted medical standards, and, in any event, had not contributed to his death.

[Defendants’ board-certified emergency physician expert] noted that when the first responders arrived on the scene, they found Murray to be in an asystolic state. He noted that “asystole is an ominous finding in victims of cardiac arrest in which the heart stops beating and is characterized by the absence of electrical and mechanical activity in the heart,” and opined that the possibility of survival from such a state “is extremely rare, especially in the absence of immediate bystander CPR.”

WhiteCoat wasn’t happy. Most everyone, WhiteCoat included (I think), agrees that it’s negligent to administer electrical defibrillation to an asystolic rhythm. Instead, it’s the standard of care to begin CPR, provide supplemental oxygen, and add intravenous lines to administer epinephrine and atropine. WhiteCoat attacks the causal connection between that error and the decedent’s death: the decedent was asystole, which is essentially dead anyway, and the odds of recovering from that — even with proper treatment — are miniscule. As WhiteCoat put it, the defendants were being sued for not performing a miracle.

Continue Reading The Burden Of Proof: A Matter Of Life And Death

I’ve written several times before about where multi-million dollar jury verdicts come from, like in A Look Behind The Scenes Of A Multi-Million Dollar Personal Injury Verdict and Strange Birth Injury Award: $21M Medical Expenses, $0 Pain and Suffering. There’s no secret recipe. Facts win cases; outrage at the defendant’s reckless conduct makes the damage awards larger.

Another example was published yesterday in The Legal Intelligencer:

A Philadelphia jury awarded $21.4 million on Friday to a diabetic man with brain damage over the care he received in the emergency room of Temple University Hospital.


The defense argued in court papers that when Campbell, an insulin-dependent diabetic, was taken to the hospital Oct. 13, 2007, he was administered glucagons and glucopaste by emergency medical technicians. His initial blood sugar was 74 by the time he arrived in the emergency room at 9:10 p.m., 79 by 10:40 p.m. and 118 by 12:14 a.m. Campbell was discharged at 1:05 a.m. in the company of family members and went to bed at 3 a.m.

Campbell’s relatives found him unresponsive at 11 a.m.

According to the defense pretrial memorandum, Campbell’s medical history included schizophrenia, depression, pancreatitis and alcohol abuse. Campbell was brought to the hospital 11 times for high or low blood sugar levels in the five years prior to his Oct. 13, 2007, visit to the emergency room, and he was frequently noncompliant with taking insulin, the defense argued.

Campbell was a “noncompliant” patient. It’s hard to know what that really means — everyone who doesn’t follow their doctor’s words to the letter is “noncompliant” — but the docket includes some references to alcohol abuse. The jury found him to be 10 percent at fault for the metabolic encephalopathy that has left him severely brain damaged and in need of constant custodial care.

So what happened? Why only 10 percent liable for his contributions to his condition? And why such a high award on damages, an award that seems likely to exceed his medical needs?

That’s where both facts win cases and outrage can help develop the award:

[Thomas J. Duffy of Duffy & Partners] said they argued to the jury that because Campbell had visited the emergency room Oct. 11, 2007, due to a severe episode of hypoglycemia, and returned to the emergency room two days later for the same issue, it was a breach of the standard of care to release Campbell without admitting him and investigating why Campbell was repeatedly having hypoglycemic episodes.

Indeed. And it gets worse:

The emergency room doctors differed on whether one of them treated Campbell, Duffy said. Dr. Michael DeAngelis filed a certificate stating he had not treated Campbell, while Dr. Joseph R. Lex Jr. and Dr. Christopher C. Vates disputed DeAngelis’ account, Duffy said.

That sort of dispute is quite striking; it’s exceedingly rare to see emergency department physicians who work together point the finger at one another. They typically all point the finger at the patient.

As far as I can tell, none of the physicians were willing to take responsibility for Campbell’s care. Maybe medical malpractice is over–thinking it; maybe the case is extraordinarily simple. Campbell had already come in two days before for hypoglycemia caused by his own “noncompliance” so the emergency physicians, annoyed by the distraction, told the nurses to give him some shots and send him home again.

On some superficial level that’s understandable. Emergency room nurses and doctors are on the frontline of society’s biggest problems. Their time is often wasted by malingering patients. They’re threatened and berated. They see many of the same patients over and over again for the same conditions. They sometimes have to blow off steam. They’re only human.

But “only human” isn’t the standard to which professionals and institutions are held. Campbell needed more than a couple cursory diabetic shots; he needed a doctor. The jury realized that he didn’t get one, and they were angry about it, angry enough to want to protect their community from that sort of lapse in care and responsibility happening again.

Read more about our legal services at our Philadelphia personal injury lawyer page.

It’s conventional wisdom among trial lawyers and insurance lawyers that few plaintiffs are as sympathetic as a brain-damaged baby. The baby plainly did nothing to contribute to their harm, but has nonetheless been deprived of many of the basic joys of their infancy, childhood, adolescence, and adulthood. It’s thus presumed that, if a jury finds liability in a birth injury lawsuit — like a negligent hospital or obstetrician that failed to observe fetal distress, leading to hypoxia, or failed to treat jaundice, leading to kernicterus — they’ll inevitably award a substantial amount of non-economic damages for pain and suffering. Indeed, that was the whole thought behind New York’s misguided “reform” which limited non-economic damages to $250,000.

Conventional wisdom suggests that Ja’Kareon Graham was a sympathetic plaintiff. It wasn’t his fault he was brain damaged at birth, that at 4 1/2 years old he can’t speak, that he’s fed through a gastric tube and needs round-the-clock medical care. It was the fault of the nurses and obstetrician who delivered him. He was a twin, and the nurses only bothered to monitor his twin’s heart rate; by the time he was born, he had spent hours in fetal distress.


The hospital’s expert claimed (see this story) that he was too small to monitor correctly, but that’s just rubbish: one of my twins was smaller than Ja’Kareon and also wasn’t showing up on the fetal heart rate monitor, so the attending obstetrician — after he learned what I did for a living — brought in another doctor to follow her with an ultrasound, and she was delivered the moment trouble appeared.

Compounding the problems, Ja’Kareon became stuck after turning to breech position, and the obstetrician negligently dithered around for a while before ordering an emergency c-section. The prolonged hypoxia and resulting metabolic acidosis caused his cerebral palsy.

Conventional wisdom, but perhaps not actually correct:

An Erie County jury has delivered what is believed to a be record $21.6 million verdict in the case of a boy who suffers from cerebral palsy as a result of a lack of oxygen during birth. … On April 20, following a trial that was just over a week long and deliberations that lasted about three hours and 40 minutes, a unanimous 12-member jury delivered the $21,573,993.10 verdict against defendant Hamot Medical Center of the City of Erie in President Judge Ernest J. DiSantis Jr.’s courtroom. According to the verdict slip in Graham v. Townsend , $19,588,217 was awarded for future medical expenses and is to be paid in annuities through 2081, while $1,424,314.10 was for past medical expenses and $561,462 was for lost earning capacity.
Notice anything missing there?

That’s right: the jury awarded the child zero in non-economic damges.

To see what the jury didn’t think he deserved, let’s take a refresher on non-economic damages in Pennsylvania by reviewing the civil jury instructions:

The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. … [P]laintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find (he) (she) has endured from the time of the injury until today and that … (he) (she) will endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe (he) (she) has endured and will continue to endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for the loss of (his) (her) ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and … in the future as a result of (his) (her) injuries. … The disfigurement that plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement (he) (she) has suffered from the time of the injury to the present and that (he) (she) will continue to suffer during the future duration of (his) (her) life. In considering plaintiff’s claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish which the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff.

The jury took a close look at the child’s lifetime of round-the-clock care, the fact that he can’t even eat, much less feed himself, and decided it was worth nothing. Nothing for physical pain. Nothing for mental anguish. Nothing for loss of pleasures of life.


Would they have checked “yes” if there had been a item on the verdict slip for awarding him a lump of coal?


Yet, the award itself is not an unusually small size. It’s actually high: appellate courts generally take large birth injury verdicts move them down below the $10 million range, often below the $5 million range. Last month the family of baby in New Jersey who suffered similarly debilitating injuries as the result of a compromised umbilical cord — blindness, seizures, loss of head control — requiring full-time care settled their claims against Bayonne Medical Center for $8.5 million. It’s not like the Erie County jury was stingy.


So what happened? I believe it’s the result of more than a generation of insurance-industry funded propaganda (deceptively called “medical malpractice tort reform“) which has taught everyday citizens that non-economic damages aren’t “real” damages. Thus, when a jury is presented with a case that undoubtedly shows extensive pain and suffering — nothing less than taking away a normal, productive life and replacing it with a nearly vegetative state that requires constant health care intervention just to sustain — that jury either doesn’t know how to award non-economic damages or is so afraid of awarding them that they lump them in with future medical expenses.


Assuming this ends this case (the article references a high-low settlement agreement but doesn’t say if any rights of appeal were reserved), Ja’Kareon will receive enough money for his trust fund to fund adequate care for the rest of his life, but that’s because the jury apparently overestimated the cost of his future health care. The same can’t be said for the thousands of medical malpractice plaintiffs whose meritorious cases are either rejected because they’re too risky in this “tort reform” environment or whose cases win at trial but result in inadequate awards.


Read more about our medical malpractice and birth injury legal services.


A tragic story:

SIOUX CITY — A Sioux City bank has filed a personal-injury lawsuit on behalf of a Sioux City girl against the maker of a powdered infant formula, claiming the girl got seriously ill from drinking the reconstituted formula days after she was born in 2008.

According to court documents, Security National Bank alleges the girl, Jeanine Kunkel, now nearly 3 years old, contracted neonatal Enterobacter sakazakii meningitis from the Similac formula made by Abbott Laboratories and suffered permanent brain damage. The bank, as the child’s conservator, seeks monetary damages for her care, suffering and fear of future disease.

Her parents say Jeanine changed drastically soon after drinking the powdered formula, which came in a complimentary gift bag when she was discharged from St. Luke’s Regional Medical Center.

In many ways, it seems like an open and shut case. The child was promptly diagnosed with E. sakazakii meningitis. The Centers for Disease Control and Prevention has found E. sakazakii infections through tainted powered infant formula before (as have the Food and Drug Administration and World Health Organization) and apparently doesn’t know of any other way in which infants become infected.

Moreover, her twin wasn’t infected, despite virtually identical conditions except for the formula. He’s fine. She “doesn’t walk, crawl or roll over. She eats through a tube inserted into her stomach, her father said, because her brain isn’t able to command her throat to swallow. A shunt keeps harmful fluid from building up in her brain.” Twins don’t mirror each other’s health care course, but his good health does help rule out, to some extent, the possibility of other causes.

But there’s a hitch in the case:

Surber and Troy Kunkel, Jeanine’s father, admit tests conducted on the can of powdered Similac didn’t show evidence of Enterobacter sakazakii bacteria, but Sioux City attorney Tim Bottaro said they’re confident that’s where the harmful bacteria came from.

FDA labs tested for but did not find the bacterium in the family’s kitchen, the lawsuit says.

The tort of negligence (which underlies most product liability cases) has four elements, duty, breach, causation, and damages. To recover, a plaintiff must prove them all beyond a preponderance of doubt. Even in strict liability (which underlies the rest of tainted product claims) the plaintiff must demonstrate that the defective product in question caused the harm alleged.

So how does the family prove that the infection which caused her brain damage was caused by the formula when the formula sample itself did not test positive for the bacteria?

Continue Reading Proving Bacterial Infection Injuries Through Circumstantial Evidence