Category Archives: Personal Injury

Utah Medical Malpractice Attorney

Medical Malpractice and the “Apology Rule” Trick

As a medical malpractice attorney, I like to know the insurance defense industry’s tricks.  A recent article published by the Monthly Prescribing Reference discusses one of them.  The article addresses the frequent failure of health care providers to empathize with patients who have suffered as a result of adverse outcomes and medical malpractice.  These “expressions of empathy” are a trick designed to deter people from holding negligent health care providers accountable in court.

Utah Medical Malpractice Attorney

Frequently, when I meet with new clients, they tell me about how they went into the hospital for a routine procedure only to wake up hours–or sometimes days–later having suffered a catastrophic injury.  While it is true that there can be known, unavoidable complications in medicine, often, the additional injuries are the result of negligence and poor communication among the medical team.  Patients feel like insult has been added to injury when none of their doctors will tell them what went wrong.

Health care providers aren’t dumb; they know when they’ve made a mistake.  More often than not, if a doctor or other clinician knows that an error was made due to negligence, they get tight-lipped, they do little follow-up, and no matter what, they never tell the patient.  People who trusted a professional to provide necessary health care often feel abandoned and start looking for answers to the questions that the doctors just won’t answer.  This usually leads to them contacting a medical malpractice lawyer.

Insurance companies and the corporations that run hospitals know this, and they don’t like it.  As a result, they have been encouraging physicians and other providers to offer carefully worded statements of “empathy.”  As the article puts it, doctors are being “trained to express empathy without admitting fault.”  It is rare that a negligent provider will come right out and admit their mistake–I’ve seen it once in hundreds of malpractice cases and in over ten years of practice–but more and more frequently doctors will offer rehearsed speeches designed to discourage injured patients from pursuing a malpractice claim.

They feel safe doing this, because the medical lobby has passed laws designed to keep such statements out of court.  In Utah, the law says that “expressions of apology” are inadmissible in court.  This so-called “Apology Rule” allows negligent health care providers to say they’re sorry…they just don’t have to mean it.

Fortunately, the Utah Court of Appeals recently narrowed the scope of the Apology Rule.  In Lawrence v. MountainStar Healthcare, a nurse negligently administered an injection intravenously (into the vein) instead of subcutaneously (under the skin).  After the patient suffered a severe reaction, crying out in pain, vomiting, experiencing heart palpitations, and other symptoms, her treating providers and hospital risk managers admitted a mistake had been made.  They even went so far as to say, “[Y]ou don’t have to worry about it. We’ll take care of you. Things are going to be okay”; “You don’t have anything to worry about on your end. We’ll make sure it’s taken care of”; and, “[E]verything is going to be okay. Things will be taken care of.”

Utah Malpractice Lawyers

Of course, things weren’t taken care of, and the patient had to take the hospital to court.  There the hospital’s team of lawyers fought to keep statements acknowledging error and promising to take care of the patient out of court under the Apology Rule, and the jury never heard about them.

Not surprisingly, the patient lost.

But on appeal, the appellate court decided that admissions of fault are not apologies, and the jury should have heard them.  This case was a huge victory for injured patients, and helps to minimize the effectiveness of the insurance companies’ “Apology Rule” trick.

 

Obstetrical Malpractice

Blaming Lawyers for Obstetrical Malpractice?

A recent article in Utah’s Deseret News suggests that the threat of medical malpractice lawsuits is causing obstetricians to perform unnecessary Cesarean sections.  C-sections are a medical procedure where a surgical incision is made through the mother’s abdomen to deliver the baby.

Obstetrical Malpractice

The article restates outdated statistics published by the American Congress of Obstetricians and Gynecologists (ACOG) for the premise that unnecessary C-sections are on the rise.  In fact, more recent data shows otherwise.  According to another article in USA Today:

[T]he most recent data on C-sections from the Centers for Disease Control and Prevention show that the while the overall C-section rate has not budged much recently after years of increases, the rates at 37 and 38 weeks (for both elective and needed procedures) have fallen.

The threat of unnecessary C-sections being caused by the threat of malpractice lawsuits is false.  Holding negligent health care providers actually increases patient safety for everyone.  The rates of C-sections are actually declining. Moreover, If obstetricians are performing unnecessary C-sections, they are putting their own interests ahead of the patients.  If the procedure is not medically indicated, then that is a breach of the standard of care.  Doctors should do what is in the best interest of their patients.  Physicians who put their own concerns ahead of their patients are responsible for those decisions, not the lawyers who represent people legitimately harmed by medical malpractice.

In some cases, C-sections are encouraged as “elective” procedures, ostensibly for the benefit of the mother.  But in fact, the C-sections and elective inductions are ordered so that physicians can maintain control over their busy schedules and perform more deliveries–thereby generating more revenue–for the physicians and the hospitals.  These unnecessary C-sections and inductions frequently lead to serious, yet avoidable complications.  These medical errors can cause serious birth injuries.  Attorneys who advocate for families who have suffered as a result of obstetrical negligence are not the problem; the problem is the negligence itself.

Utah Medical Malpractice Law

Damages in Personal Injury Seminar: June 27

Utah Medical Malpractice LawAlong with some of Utah’s finest attorneys, I’ve been asked to present a seminar on damages in personal injury cases (you can register here) later this month.  As I’ve prepared, I realized that a lot of people who have been hurt by medical malpractice or negligence don’t quite know what to expect.  When I meet with new clients, I explain to them the four elements we need to prove to win the case: 1) The nature of duty owed (sometimes called “the standard of care”); 2) breach of the duty; 3) causation; and 4) damages.  Read more about understanding damages here, since that’s one of the most important aspects of the client’s case. And if you’re a lawyer or a paralegal, register for what is sure to be an outstanding seminar.

Utah Medical Malpractice: Birth Injuries

Birth injuries not only have physical and emotional consequences, they also place a financial strain on the child’s family. I have seen families struggle with the costs of providing physical therapy, special schooling and other care needed for their children. When a birth injury is caused by the negligence of a doctor or other healthcare provider, the family may be able to recover compensation for these costs with the assistance of a medical malpractice attorney. With more than a decade of experience handling birth injury claims, Utah attorney Ryan Springer can determine whether your doctor took proper care during delivery, and the amount of damages that may be owed for your losses.

Was your child injured at birth? If so, you may be able to file a claim against the medical professional who delivered your child. To find out if you are owed compensation, contact birth injury attorney Ryan Springer today.

Birth Injury Lawsuits & Medical Negligence

Utah Birth Injury Lawyers

When an infant suffers a birth injury, the child’s parents may be able to file a medical malpractice lawsuit against the doctor or medical professional(s) who delivered the baby. To have a valid claim, negligence must have led directly to the birth injury. Medical negligence occurs when a healthcare professional’s performance falls below the standard of care expected in the medical community.

Birth injuries that are caused by medical negligence may arise from:

Improper Forceps Use: When a mother is having difficulty delivering her child or if the infant is improperly positioned in the womb, the attending physician may use forceps to help the child along. Use of forceps can reduce the child’s risk of oxygen deprivation and fetal distress, conditions that have been linked to cerebral palsy and other birth injuries. Improper use, however, can cause nerve damage in the child’s neck and chest, and other less severe injuries to the head.

Improper Vacuum Use: When an infant has difficulty escaping the birth canal, a vacuum may be needed to assist the baby. Vacuums can be suctioned to a baby’s shoulder or skull to guide the child through the birth canal. Doctors and nurses are responsible for properly placing the vacuum on the infant. When the vacuum is improperly used, severe injuries to both the mother and newborn can result.

Delay in Ordering a Caesarian Section: Emergency C-sections may be ordered if the child is suffering from fetal distress. This often occurs when the child’s heart rate slows as a result of a sudden drop in the mother’s blood pressure, bleeding from placental abruption or other problems in delivery. Uterine rupture, cord prolapse, slowed labor, and placenta previa (placenta covering the cervix) may also require an immediate C-section. If the delivery team fails to recognize these problems or delays in ordering a C-section, they may be liable for any resulting injuries.

Hypoxia: Hypoxia occurs when the child’s brain is not receiving enough oxygen. During child birth, a tangled umbilical cord, infection or damage to the placenta can result in hypoxia. Medical practitioners are trained to detect hypoxia in advance and to take steps to eliminate the risk of further harm. If the doctor fails to notice the hypoxic event and take quick action to avoid injury, they may be liable for any resulting damages. If hypoxia is not quickly addressed, the child can develop serious mental and physical disabilities.

Utah Birth Injury Attorney

If there has been a birth injury in your family, contact Utah malpractice attorney Ryan Springer for a free consultation and evaluation of your claim.

Utah Medical Malpractice Cases: What Are The Challenges?

Medical malpractice victims are treated as second-class citizens by Utah law. As a result, only a handful of law firms still handle these cases, and even fewer are successful. The odds favor the doctors and hospitals because the Utah State Legislature has enacted special laws to protect negligent doctors at the urging of powerful medical lobbyists. The doctor and hospital insurance company lobbies have made it expensive and difficult for patients to bring suit.

Utah Medical Malpractice

Additionally, lawyers for malpractice victims have limits placed on their fees. On the other hand, there is no limit on what medical malpractice insurance companies can pay lawyers to defend doctors, hospitals, chiropractors and other health professionals — indeed, they can spend millions of dollars to defend bad doctors, hospitals, Intermountain Health Care, and other health providers when they are guilty of inexcusable wrongdoing, paying victims nothing.

Utah medical malpractice lawyer Ryan Springer represents innocent people hurt by their care providers and has done so for over a decade. He proudly represents people injured while receiving medical care from doctors, hospitals, clinics and HMOs throughout the State of Utah. Contact Ryan Springer to discuss your Utah medical malpractice case directly by calling (801) 502-8735, or by filling out the submission form below.  He has the skill and experience to help you bring your case.  He knows the laws and the procedural games the insurance company lawyers will try to play.  And he has the compassion to know that your case is a personal matter, that it’s scary, and that you need someone who cares.

 

Utah Medical Malpractice Cases: Why Do They Take So Long?

One of the most frustrating things for clients in medical malpractice cases is how long the process can take.  Often, being the victim of medical negligence forces people to use the civil justice system for the first time.  It can be an intimidating and frustrating process, but ultimately, it results not only in help with medical bills and lost wages, it compensates for pain and suffering as well.  Additionally, it teaches negligent health providers a lesson, making health care safer for everyone.

One of the earliest stages of a medical malpractice case is called “discovery.”  Discovery is a way to get information from the other party before trial. You can get any information from the other party that is relevant to the case. Use discovery to find out what evidence and arguments the other parties might use in their cases and at trial. Additionally, discovery can be used to constrain what evidence will be able to be offered at trial.

Medical malpractice cases have their own challenges when it comes to discovery.  Often, medical records are voluminous.  Sometimes they are stored electronically and require special knowledge and expertise to access them.  For instance, in birth injury cases, the original fetal heart rate tracing will have clues that are not contained in the digital version routinely produced in discovery.

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There are three major purposes of discovery:

 First is the preservation of relevant information that might not be available at trial . . . . A second purpose of discovery is to ascertain the issues that actually are in controversy between the parties . . . [d]iscovery can be utilized to determine what really is at issue so that the parties can concentrate on obtaining evidence on those matters that are actually disputed. Finally, modern discovery allows a party to obtain information that will lead to admissible evidence on the issues that are in dispute.[1]

Once a lawsuit begins, the exchange of information between the parties and formal discovery is governed by the Rules of Civil Procedure. Each jurisdiction will have its own discovery rules. These rules allow the parties to obtain information from each other in several different ways. Utah recently enacted a new set of rules related to discovery.  It is important that if you or a family member have been harmed by medical negligence, you hire a lawyer who is familiar with these rules.  All malpractice actions take some time, but retaining a lawyer who has experience with the unique discovery challenges in medical malpractice cases is an important consideration.

Utah medical malpractice lawyer Ryan Springer has more than a decade of experience in litigating medical malpractice cases.  He knows the kind of games that hospitals and insurance companies play when hiding records or making discovery difficult, and he will fight to find the facts needed to win your case in court.  To schedule a free consultation, call (801) 502-8735, or fill out the contact submission form below.

[1] Jack H. Friedenthal, et al., Civil Procedure 386-87 (3d ed. 1999).

Who Gets Sued When Your Robot Car Crashes?

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That’s the question asked by Alex Brown in the National Journal.  “The auto insurers are thinking a lot about this,” he notes.

I’ll bet they are.  Although robot cars are still in the distant future, people injured in car crashes today still need an attorney to help them fight against insurance companies.  Personal injury attorney Ryan Springer can help. If you’ve been injured by a negligent driver contact Ryan today:

Landmark Utah Supreme Court Case Restores Fairness in Malpractice Cases

On Friday, the Utah Supreme Court handed down its decision in Turner v. University of Utah Hospitals.  You can read the decision here.

Ms. Turner was severely hurt in a car accident, and while she was being treated for her injuries at the hospital, staff members negligently moved her, breaking her back and paralyzing her.

When Ms. Turner went to trial, the jury pool was stacked against her. Because of a strange technicality called the “cure or waive” rule, Ms. Turner’s lawyer was put in a Catch-22 when he tried to eliminate some biased jurors from the panel.

Additionally, although there was no evidence of any alternative or approved treatments, the defense lawyers convinced a judge to give the jury an instruction that contradicted the law.

Because of these legal errors, the jury let the careless staff members off the hook for their negligence.

Ms. Turner’s lawyer appealed to the Utah Court of Appeals, but that court concluded that the “cure or waive” rule applied, and that the erroneous jury instruction was harmless.

Finally, Ms. Turner convinced the Utah Supreme Court to reexamine the case.  She asked for help from attorneys Ryan Springer and Michael Karras.  Working with the Utah Association for Justice, Mr. Springer and Mr. Karras wrote an amicus curiae brief on her behalf, arguing that fair trials should be more important than the rigid application of procedural rules, and also arguing against the use of poor and misleading jury instructions.

The Utah Supreme Court unanimously overturned the court of appeals decision and granted Ms. Turner a new trial.  The court agreed that the cure or waive rule is a bad idea, and that trial courts must be cautious in giving jury instructions in medical malpractice cases.

Mr. Springer and Mr. Karras donated their time and effort in this case to make sure that all Utah citizens get a right to a fair trial.  We wish Ms. Turner the best of luck in her continued fight for justice.

 

Transvaginal Mesh Lawsuits in Utah

The Food and Drug Administration has warned that the use of transvaginal mesh exposes patients to a greater risk of complications than other methods of surgical vaginal repair. The FDA stated that in spite of the increased side effects risk, transvaginal mesh repair surgery carries no addition benefits compared to other surgeries.

Transvaginal mesh is a type of surgical mesh used for the repair of pelvic organ prolapse (POP) or stress urinary incontinence (SUI). After gynecologists began using surgical mesh to repair POP or SUI in the 1970s, manufacturers developed specially designed products for use in these surgeries.

Some of the most common forms of transvaginal mesh and their manufacturers are:

  • American Medical Systems: SPARC; BioArc; MiniArc; Elevate; Monarc; Perigee; In-Fast; Apogee.

 

  • Boston Scientific: AdvantageTM Sling System; Obtryx Curved Single; Obtryx Mesh Sling; Prefyx Mid UTM Mesh Sling System; Prefyx PPSTM System; Arise Pinnacle; Lynx; Solyx.

 

  • C.R. Bard: Avaulta PlusTM BioSynthetic Support; Avaulta Solo TM Synthetic Support; FasLata Allograft; Pelviocol Tissue; PelviSoft BioMesh; Pelvitex TM Polypropylene Mesh.

 

  • Johnson & Johnson: Ethicon TVD; Gynecare TVT; Gynecare Prosima; Gynecare Prolift; Gynemesh PS.

The FDA warning states that several frequent complications that have been linked to the use of transvaginal mesh, including vaginal mesh erosion, pain, infection, urinary problems, bleeding and organ perforation. The agency reported that since 2007, reports of surgical mesh complications have risen exponentially.

Recently, patients who have been injured by these dangerous products have filed hundreds of lawsuits against the manufacturers.  They are standing up against some of the most powerful corporations in the health care industry, and sending a message that business must stop putting patients over profits.  These lawsuits have helped women recover money for medical bills, future surgeries, and pain and suffering.

If you or a loved one received a transvaginal mesh during surgery to repair pelvic organ prolapse and suffered complications from the device, you may be eligible to file a lawsuit. For a free legal evaluation, contact defective medical device lawyer Ryan M. Springer toll-free at 1-866-605-4556 and speak directly with Ryan, not a call center or a paralegal.

Utah Wrongful Death Law

Utah is just one of four states with constitutions that specifically preclude any limitation on recovery in wrongful death suits.  The Utah State Constitution expressly states that “[t]he right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . .”  Utah const. art. XVI, § 5 (1896) (emphasis added).  Utah’s constitutional proscription on limiting recovery for wrongful death is sound public policy.  As one scholar has explained:

Under the pecuniary loss rule, followed in almost every state, life has no intrinsic value—no value per se.  This seems to be a peculiar result in a society that refuses, at least for some purposes, to place any price tag on human life.  Of course, an obvious distinction can be drawn between the cost of saving a life not yet lost and allowing tort recovery for one that is gone.  Since no amount of money can bring the decedent back, she cannot be compensated in any meaningful way for the loss of her life.  However, while this may justify a difference in the monetary values society attaches to lives that can be saved and those already lost, it does not support the traditional legal notion that a lost life has no cognizable value apart from the lost economic benefits the decedent would have conferred upon her survivor.

Andrew Jay McClurg, It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57, 59 (1990).

Fortunately, under Utah law, there is not—and there cannot be—any limit on the amount recoverable in wrongful death cases.

Families’ rights to seek judicial redress for the death of a loved one due to medical malpractice or other negligence are constitutionally protected. The nature of the right to seek judicial redress for wrongful death, and its constitutional significance, can be understood by examining history:

According to a Latin maxim, personal actions die with the person. The common law followed that maxim, holding that the death of either the tortfeasor or the victim eliminated all tort claims. In particular . . . [i]f the tort victim died, his cause of action was at an end. His estate had no cause of action.

Dan B. Dobbs, The Law of Torts, § 294 (2000). In 1846, however, England enacted Lord Campbell’s Act, which “created a wrongful death claim for the relatives of a decedent when the decedent would have had a claim if he or she had been merely injured and not killed.”

Utah’s Constitutional Wrongful Death Clause was “based on the enactment of Lord Campbell’s Act in 1846 in England to remedy a defect in the common law. The Act spread to this country, was enacted essentially in its present form in the Territory of Utah, and was then included in the Utah Constitution at statehood . . . . The plain meaning of the constitutional provision . . . is to prevent the abolition of the right of action for a wrongful death, whether in a wholesale or piecemeal fashion.”  Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 684 (Utah 1985) (internal quotations and citations omitted).

Accordingly, the state legislature has consistently maintained a statutory mechanism by which Utah citizens might avail themselves of the right. See Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179, 1184 (Utah 1983); Utah Code Ann. § 78-11-7. Discussing this act, the Utah Supreme Court stated:

Under 78-11-7, when the death of an adult is caused by the wrongful or negligent act of another, the heirs or the personal representative of the heirs may bring an action for damages against the person causing the death. This Court . . . interpreted the statute and held it to create “a new cause of action for the loss suffered by the heirs by reason of death and (the action) only comes into existence upon the happening of death.” The action is not derivative.

Hull v. Silver, 577 P.2d at 103-04 (quoting VanWagoner v. Union Pac. R. Co., 186 P.2d 293, 303 (Utah 1947)) (emphasis added).

Hull also highlights a critical point that is useful in understanding Utah’s wrongful death jurisprudence. In holding that the doctrine did not apply, the court relied heavily on the Washington Supreme Court’s decision in Johnson v. Ottomeier, 275 P.2d 723 (Wash. 1954). Quoting Johnson, the Utah Supreme Court adopted the reasoning that, “[n]ot having as its basis a survival statute, the action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased.” Hull, 577 P.2d at 106 (quoting Johnson, 275 P.2d at 725).

Those of us that live in Utah ought to be grateful to our State’s founding fathers, who had the wisdom and foresight to include this important provision in our State Constitution.