Vested Interest - Tort Briefs - April 2003 Issue

Jury Finds for Family of Man who Hanged Himself

A jury in the U.S. District Court for the Northern District of Illinois returned an award for the family of a man who hanged himself in the Lake County Jail. The inmate had shown indications of severe depression and bipolar disorder and had told medical workers that he was suicidal. The jury found the defendants, Correctional Medical Services, a St. Louis company that contracted with the jail to provide medical care, and a social worker, at fault in the death. Lake County had been named as a defendant, but county officials settled before the trial started. (Chicago Daily Law Bulletin – February 25, 2003)

Settlement in Chemical Burn Lawsuit

An Elmhurst pipe-fitter who was accidentally doused with sulfuric acid while working on a construction project has reached a settlement of his personal-injury lawsuit. While walking under a second-floor mezzanine grating at a Will County chemical plant, two gallons of sulfuric acid was knocked over from above and spilled on him. He suffered burns over 30 percent of his body. He missed nine months of work and now works full time in construction as an estimator. His skin is sensitive to sunlight, and he suffers pain when touched, limiting how he is able to interact with his children. (Chicago Daily Law Bulletin – February 27, 2003)

Courts Increase Intervention in Arbitration

An appellate court ruling that reversed a punitive damages award is part of a trend of greater judicial scrutiny of arbitration awards. In Sawtelle v. Waddell & Reed Inc., the New York Appellate Division held that an arbitration panel acted irrationally when it awarded a broker damages nearly 25 times the size of his compensatory damages award. The attorney for Waddell & Reed, a Kansas-based brokerage firm, said he does not believe the decision will open the floodgates to judicial second-guessing, because it deals with one of the few aspects of arbitration awards, punitive damages, in which society has an interest. (ATLA Law News Digest – March 6, 2003)

Airline Settlement in Blood Clot Case

There was little fanfare when American Airlines recently became the first airline to settle a lawsuit filed by a passenger who suffered "economy class syndrome," a problem that often afflicts passengers who ride in cramped, poorly designed seats of commercial airlines. That settlement was closely watched by airlines around the world. The plaintiffs lawyer in the case said he believes there are tens of thousands of potential DVT cases throughout the world and estimates that thousands of people die or are seriously injured each year from blood clots resulting from long-distance air travel. (ATLA Law News Digest – March 6, 2003)

Settlement Reached in Gas Explosion

A Cook County man reached a settlement with a homeowner and a gas company in a lawsuit that arose out of a 1997 explosion and fire in Wisconsin that left the man with third-degree burns on more than 90 percent of his body. The victim suffered severe scarring and hearing loss. He lost both ears and part of his nose in the fire, and six fingers were amputated. Because he lost the vast majority of sweat glands and ability to sweat, he is intolerant to heat and becomes physically ill after any extended exposure to hot/humid weather. (Press Release – March 10, 2003)

White House: Limited Compensation for 1st Responders

After only 12,400 individuals responded to the President’s call for 500,000 emergency health personnel to volunteer for smallpox vaccinations and after hundreds of hospitals refused to participate in the program, the Bush administration agreed to a limited plan to compensate emergency personnel who suffer injury from the vaccination. Under the administration’s proposal, anyone who dies or suffers a permanent injury would be eligible for $262,100 and anyone who becomes ill as the result of contact with inoculated health personnel would be entitled to the same benefit. (Liability & Insurance Week – March 10, 2003)

Breast Cancer Misdiagnosis, Family Receives Settlement

The family of a woman who died of breast cancer reached a settlement agreement with doctors who allegedly failed to diagnose and treat her disease. The woman had two mammograms after she noticed and informed her doctor about bloody discharge from her nipple. Doctors then failed to analyze the mammogram films, failed to request a biopsy of her breast tissue and failed to recommend subsequent studies of the patient’s condition. She died 3 years after the mammograms. (Chicago Daily Law Bulletin – March 10, 2003)

Settlement for Head Injuries

A woman who suffered head injuries when she fell on a concrete stairwell has reached a settlement with the owner of the building. The woman fell in an unlit, garbage-strewn stairwell at her apartment building. She sustained a head injury and underwent surgery. A Cook County judge approved the settlement in which the facts, such as the condition of the stairwell, and the effects of the fall were disputed. (Chicago Daily Law Bulletin – March 12, 2003)

Settlement Approved for Brain Damage Claim

A Cook County judge approved a settlement between a 6-year-old and his parents with a hospital and doctors’ group in a case that arose from a surgical procedure that failed to prevent buildup of fluid and caused permanent damage to the boy’s brain. When the boy was one-month-old, he was diagnosed with hydrocephalus, an abnormal increase in fluid in the cranium. The parents claimed that the shunt doctors put in their son’s brain was damaged during a second surgery by a resident who should have been supervised by a more experienced doctor and that doctors missed signs that the system was not working properly. (Chicago Daily Law Bulletin – March 11, 2003)

Children Receive Settlement for Paramedic Failure

The children of a woman who died after paramedics responded to the wrong address received a settlement from the 911 dispatch service. Five days after the woman and her family moved to a new address, she became unconscious and her breathing became labored. A dispatcher sent paramedics to the old address, causing a delay in providing treatment. She was later pronounced dead of cardiac arrhythmia. (Chicago Daily Law Bulletin – March 12, 2003)

U.S. Supreme Court Gives Boost to Asbestos Claims

The U.S. Supreme Court ruled 5-4 that railway workers suffering from asbestosis should also be able to recover damages for fear of asbestos-related cancer. In a separate section of the ruling in Norfolk & Western Railway Co. v. Ayers, the Court unanimously agreed that railroads can be held completely liable for work-related asbestos claims, even if other companies or causes contributed to the disease. (ATLA Law News Digest – March 13, 2003)

Gun Makers Dismissed From California Lawsuit

Gun makers claimed victory when a San Diego judge dismissed them, weapons distributors and trade associations from a product liability lawsuit brought by major California cities against the firearms industry. Only a half-dozen gun dealers remain in the lawsuit, scheduled for trial in late April. The municipalities, including San Diego, Los Angeles and San Francisco, claim the industry created a public nuisance by supplying guns to ineligible buyers and violated state business laws by making misleading statements about the dangers of gun ownership. The suit also alleged that the firearms industry failed to incorporate safety features and to prevent guns from falling into the hands of juveniles and criminals. (ATLA Law News Digest – March 13, 2003)

Transplant Error was Cause of Baby’s Death

A year-old baby died in August at Children’s Medical Center in Dallas after a surgical error destroyed her liver and doctors tried to save her with a transplant but mistakenly gave her a liver of the wrong blood type. The error occurred when a laboratory mixed up the blood types of the baby’s parents and incorrectly identified the father as a suitable donor of a partial liver when, in fact, the mother should have been the donor. Although many surgeons and organ distribution agencies contend that transplant mismatches are rare, in fact, no one knows how often they occur. There is no national registry of such cases, and the United Network for Organ Sharing, which controls the distribution of organs from cadavers, does not record mismatches in its computer system. (ATLA Law News Digest – March 13, 2003)

Judge Finds in Favor of Paralyzed Patient

A U.S. District judge found in favor of a woman left paralyzed after doctors working in Veterans Administration hospitals failed to offer surgery that might have prevented spinal damage. The woman, an Army veteran, was treated for cervical myelopathy, a dysfunction of the spinal cord resulting from bone spurs that form in the direction of the spine. Doctors performed surgery, but over the next two years, symptoms returned and doctors did not recommend a second surgery that might have prevented the paralysis that set in. (Chicago Daily Law Bulletin – March 13, 2003)

Unpleasant Surprises in Arbitration

The parents of the 17-year-old girl who died after a bungled heart-lung transplant have yet to decide whether to sue for medical malpractice, but there is a chance they may not be able to anyway. They may have signed an agreement with Duke University Hospital before the operation to settle any medical malpractice claims through binding arbitration. More and more healthcare providers are pushing for binding arbitration. The Florida Medical Association held a series of well-attended seminars around the state to teach doctors how to put arbitration agreements in place. In Utah, the Legislature passed a bill recently that allows doctors and hospitals to turn away patients who will not sign arbitration agreements, emergency services excluded, and the governor is expected to sign it. (ATLA Law News Digest – March 20, 2003)

Bayer Not Liable in Suit over Cholesterol Drug

A Texas jury cleared Bayer Corp. of liability in a $560 million lawsuit that accused the pharmaceutical giant of ignoring research linking the cholesterol-lowering drug Baycol to dozens of deaths. The jury deliberated for 2-1/2 days before returning the verdict in Haltom v. Bayer Corp. It was the first of about 8,000 cases against Bayer to go to trial. (ATLA Law News Digest – March 20, 2003)

BIC Losses Verdict over Burning

A Texas jury found BIC Pen Corp. at fault for the injuries to a child who was severely burned when her younger brother dropped a lighter on her dress. BIC will appeal the award in part because, according to a company statement, it was never clear that the lighter that caused the fire was made by BIC. During the trial, an expert witness testified that BIC lighters weren’t child-proofed to specifications set forth by the CPSC. (ATLA Law News Digest – March 20, 2003)

Wrongful Discharge Action for Employee Filing Claim

In Jackson v. Morris Communications Corp., the Nebraska Supreme Court has recognized a public policy exception to the at-will employment doctrine to allow an action for retaliatory discharge when an employee has been terminated for filing a workers’ compensation claim. The Court reasoned that the Nebraska Workers’ Compensation Act was enacted to serve the important public purpose of relieving workers from the adverse economic effects caused by a work-related injury or occupational disease and that to allow fear of retaliation for the filing of a workers’ compensation claim would undermine that purpose. (ATLA Law News Digest – March 20, 2003)

Illinois Supreme Court Reinstates Award

The Illinois Supreme Court ruled that trial judges may not overturn awards that are not legally faulty. The court reinstated an award against a doctor for a failed 1994 surgery at St. Mary’s Hospital in Decatur. The trial judge had rejected it as excessive. Justice Robert Thomas, writing the court’s opinion, said the award is the jury’s alone to decide. A judge abuses his discretion in overturning a jury if there’s evidence to support its decision. "Judges are not free to reweigh the evidence simply because they may have arrived at a different verdict than the jury," Thomas wrote. The judge in the 1999 trial rejected the verdict against the hospital and ordered a new trial on monetary damages for the doctor. The Supreme Court reinstated the judgment against the doctor but upheld excusing the hospital from responsibility. (AP – March 21, 2003)