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Articles Posted in Medical Malpractice

When a physician’s diagnostic error results in improper or delayed treatment, the patient’s condition can worsen, causing painful or irreversible medical complications, and even death. When a misdiagnosis results in injury, the victim may bring a medical malpractice lawsuit against the hospital, physician, or other medical personnel. A Boston injury lawyer can help you obtain the compensation you or a loved one deserves if you have been harmed by a misdiagnosis.

Diagnostic Errors

Not all diagnostic errors are created equal. Three factors must be present to justify a malpractice lawsuit following a misdiagnosis. These factors are:

  • The existence of a doctor-patient relationship.
  • Negligence – the physician did not provide the level of treatment that a competent physician would have provided under similar circumstances.
  • The negligence resulted in injury.

If, for example, the first two factors were present but the misdiagnosis did not cause a measurable injury, a successful malpractice lawsuit is unlikely. Similarly, if the physician provided an exceptional standard of care, he or she probably won’t be found liable for malpractice, even if an injury occurred. A MA injury attorney can help you determine if you have a viable malpractice case.

Did Negligence Play a Role?

A misdiagnosis is not evidence of negligence on its own. Even a highly-skilled, competent physician can make diagnostic mistakes. The real question is: did the physician act competently? To determine this, the court will look at the steps the doctor took to arrive at the diagnosis. What did the doctor do, and what did the doctor not do? This involves an evaluation of the doctor’s differential diagnosis, which is the method used to identify a patient’s medical condition.

Following a preliminary evaluation, the physician will list possible diagnoses in their order of probability. Next, the physician considers each potential diagnosis and conducts additional observations of the patient to determine the probability of that particular diagnosis. To do so, he or she will order tests, request the opinion of specialists, and obtain the patient’s medical history.   The goal is to rule out multiple potential diagnoses, whittling the list down to – hopefully – only one likely candidate.

Of course, it doesn’t always work out this way. In order to win a malpractice lawsuit, one of two things will have to be proven: a) the correct diagnosis didn’t appear on the differential diagnosis list, and a competent doctor would have included it, or b) the correct diagnosis appeared on the list, but the doctor failed to perform necessary tests.

Other Forms of Negligence

Even if the doctor isn’t liable for malpractice, someone else’s negligence may have injured a patient. For example, if a tech accidentally contaminated samples because he arrived at work late and was trying to complete a task too quickly. A third party can also be liable; for instance, a manufacturer may be on the hook if faulty equipment lead to a misdiagnosis.

Did the Misdiagnosis Harm the Patient?

In order to bring a successful legal claim, it must be shown that the misdiagnosis caused the medical condition to advance beyond where it would have had the misdiagnosis not occurred, and that the progression of the condition negatively impacted the patient’s treatment. If, for example, the patient had to undergo chemotherapy to treat cancer that advanced due to a misdiagnosis, the patient has a good chance of recovering damages. And if a physician misdiagnoses a patient with a life-threatening condition that he or she doesn’t have, the physician may be liable for causing undue stress or anxiety. Continue reading

Last week, the family of a child who was severely injured at birth was awarded a $42 million verdict for future medical expenses, pain and suffering, and lost earning capacity, among other damages. A Pennsylvania judge awarded the multi-million dollar verdict due to the extent of the child’s injuries and the likelihood that he will require life-long care.

The child, who is now five years old, was injured during the delivery process when the doctor allegedly used forceps prematurely to pull the infant from the birth canal. According to the lawsuit, the pressure from the forceps caused internal bleeding, which resulted in permanent injuries, including cognitive problems, physical impairments, and an inability to express himself. As a result, he has suffered multiple brain and spine surgeries, and will require many more in the future. In fact, doctors do not expect that the child will ever read or write, and he may spend the rest of his life in an electric wheelchair.

The birth of a baby is supposed to be a joyous occasion, when a doctor’s negligence or medical malpractice results in painful or debilitating injuries to mother or child, this special day can forever be marred by trauma, sadness, and anger. In some cases, traumatic birth injuries lead to a lifetime of medical problems, and even death. Malpractice claims can be brought against doctors, other medical personnel, and hospitals. However, these types of claims are highly complicated and require the help of a skilled MA birth injury lawyer.

Types of Traumatic Birth Injuries

Any kind of birth-related injury can be classified as a traumatic birth injury, but some of the most common serious birth injuries include:

  • Broken bones and bruising: In many cases, these injuries will heal over a period of time, without the need for medical intervention. Broken bones and bruises are often caused by the use of forceps, vacuums, or natural physical stresses of the birth process. When an infant is tugged with too much force or medical personnel improperly use birth-assisting tools, these injuries can become more severe.
  • Bell’s Palsy: This injury is characterized by facial paralysis, and occurs when the infant’s facial nerves are damaged during the birth process. The damage is often caused by extreme pressure on the infant’s face, either from natural causes or from improper use of forceps during delivery. In most cases, Bell’s Palsy improves without treatment. A Boston injury lawyer can help you obtain the compensation you deserve if you were harmed due to medical negligence.
  • Brachial Plexus injury: The brachial plexus is a bundle of nerves that connects the spine to the arms and hands. When the brachial plexus is injured during the birth process, the baby may temporarily lose the ability to move the arms. In most cases, this injury will heal over time, but brachial plexus injuries can be permanent if the nerves are actually torn. These injuries are most common in difficult births, especially when a doctor pulls too hard to extract an infant whose shoulder is stuck in the birth canal.
  • Anoxia: A form of oxygen deprivation, anoxia can cause serious medical complications in a newborn. If the placenta separates prematurely or the umbilical cord is wrapped around the infant’s neck, oxygen flow to the brain may be reduced to dangerous levels. If a baby is deprived of oxygen for too long, serious brain damage can result. In some cases, this oxygen deprivation causes a medical disorder called cerebral palsy (CP). Children with CP have difficulty controlling body movements and developing / maintaining muscle tone. CP is a serious, life-long and life-altering condition. In some situations, oxygen deprivation leads to death.

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The birth of a newborn baby is as natural of a miracle that we can observe in our world. A newborn baby represents hope, potential, and a clean start. Hundreds of thousands of births occur every single day, and unfortunately many of them have complications that result in various difficulties for the newborn baby and its family.

One form of complication, Erb’s Palsy, occurs in infants who sustain nerve damage in their brachial plexus, a cluster of nerves that root in the shoulder, near the neck, and flow down into the arms. These nerves can be injured in various ways, such as during a difficult or abnormally stressful breach birth or when the baby is excessively large.

Sadly, one of the ways Erb’s Palsy can also happen is as a result of a doctor pulling on a baby too forcefully during a challenging birth. It most commonly manifests when a newborn’s head is twisted too sharply in one direction, tearing or cutting off circulation to the nerve cluster. The condition can cause long-lasting or permanent physical disabilities in the child, from temporarily being unable to move its arms or fingers to having full limb paralysis throughout its life.

According to a recent investigation, thousands of deaths related to infections contracted in hospitals may have gone unreported. In one example, the death of a newborn was blamed on sepsis due to premature birth when the actual cause was an outbreak of methicillin-resistant Staphylococcus aureus (MRSA) in the hospital’s neonatal ward. Whether the lack of reporting is due to poor tracking or a more ominous cover-up is not yet known. But the firing of a New Jersey nurse may reveal some answers.

Catherine Tanksley-Bowe was a nurse at Cooper University Hospital in Camden, New Jersey, until she was fired in August of 2016. Tanksley-Bowe claims that her firing was in retaliation for her exposure of the hospital’s mishandling of a staph infection outbreak in the infant intensive care unit. She claims the hospital did not take the proper, state-mandated precautions to prevent the spread of MRSA in the neonatal unit. According to the New Jersey Department of Health, two of the eight infants who contracted the infection later died. Following the incident, the state’s inspection of the hospital uncovered “several infection control deficiencies.” If you have contracted an infection that you believe may be related to hospital cross-contamination, contact a Boston injury lawyer today.

What is MRSA?

This highly-contagious bacteria, known as a superbug, can cause infections in different parts of the body. Because it is resistant to many commonly used antibiotics, MRSA is much more difficult to treat than other infections. Symptoms vary depending on the infection site, but include sores or boils as well as more serious complications, such as lung and blood infections. When promptly identified and treated, MRSA infections are usually not life threatening. However, in cases such as the hospital outbreak above, when fear of legal action results in a lack of reporting and immediate treatment response, MRSA can be fatal. If you believe that another’s negligence has caused you harm.

Was NJ Nurse Fired for Calling Attention to Hospital Deficiencies?

According to Tanksley-Bowe’s lawsuit, on August 8 she informed the hospital’s environmental service representative and administrator about the failure to follow state guidelines for cross-contamination prevention. She also claims to have told the hospital’s Chief of Pediatrics that Cooper should stop accepting babies into the intensive care unit and inform other hospitals of the infection. Tanksley-Bowe says the hospital didn’t heed her advice, and she was fired three days later.

What is Medical Malpractice?

If the Court believes Tanksley-Bowe’s claims to be true, the hospital may be liable for wrongful termination as well as medical malpractice. However, for a medical malpractice claim to be successful, certain elements must be present. Simply making a mistake is not enough. If the elements below are all present, it may be wise to file a medical malpractice lawsuit:

  • An established doctor-patient relationship
  • Care that fell below the accepted standard
  • A link between the medical negligence and the harm to the patient
  • Quantifiable harm to the patient

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In some situations, birth injuries and birth defects are unavoidable. However, when the negligence of your doctor, the medical staff, or a pharmaceutical company results in harm to you or your baby, the responsible party should be held accountable for their actions. If you think your baby’s birth injuries may be a result of medical negligence, contact a Boston birth injury lawyer today.

Is a birth defect considered a birth injury?

A: No. A birth defect is a condition that occurs before birth. Birth defects can be related to something that happened before or during the pregnancy, or they can be a result of genetic defects. Birth injuries, on the other hand, occur during the actual delivery process.
When should I sue for a birth injury?

A: If you believe that your doctor’s negligence caused birth injuries to you and/or your baby, you may want to file a birth injury claim. Consider the following example: For days, you couldn’t feel your near-term baby moving. You called your doctor multiple times to explain the sudden lack of movement, but she dismissed these complaints, saying it was “just nerves.” A few days later, your baby was born with Cerebral Palsy due to lack of oxygen to the brain. The cord was wrapped around his neck. In this situation, your doctor may be found liable for negligence.

What is my chance of success with a birth injury lawsuit?

A: Well, it depends on several factors. For starters, some birth injuries and defects are unavoidable. For example, a baby’s collarbone may need to be broken if the birth canal is too narrow to allow the baby’s shoulders to pass through. In a birth injury case, it all boils down to whether the doctor was negligent. Did he or she do what a competent doctor would have done in a similar situation? If the doctor, medical staff, or a pharmaceutical company failed to provide adequate and appropriate care during pregnancy or delivery, you will likely have a successful injury lawsuit.

Are birth injuries common?

A: Currently, in the United States, about five out of every 1,000 babies will be injured during the birth process. Birth defects are present in about seven percent of U.S. births.

If I bring a birth injury lawsuit, what evidence does a jury use to determine if my doctor is liable?

A: Evidence in birth injury lawsuits often focuses on expert testimony and medical records / reports. Typically, expert testimony will come from other doctors who explain why your doctor’s actions did, or did not, fall below acceptable standards of care. If your doctor is a specialist, such as an obstetrician, he or she will be held to a higher standard of care than would a non-specialist.

What are teratogens” and do they cause birth defects?

A: Over the years, many drugs that were intended to help a woman deal with pregnancy-related issues, were found to cause birth defects. These drugs, known as teratogens, include Delalutin – used to prevent miscarriages, and Bendectin – an antinausea medication.

What is Cerebral Palsy?

A: Cerebral palsy is actually a general term for multiple disorders that affect brain function. It is often a result of lack of oxygen to the baby during delivery, and can be caused by any type of injury to the baby’s brain while still in the womb. Cerebral palsy can cause lifetime mobility and body movement issues, as well as cognitive impairments.

Who receives money in a successful birth injury lawsuit?

A: In almost all cases, any compensation awarded will go to the child. If the child is still a minor, the funds will typically go into a trust. However, parents can also receive compensation for pain and suffering due to emotional distress. Continue reading


There’s really no way to describe the feeling unless you’ve been through it. You enter a hospital room somewhere in Massachusetts and are ushered through a series of procedures and given many different lectures about what is about to happen. Eventually, all that remains is your lingering remnants of consciousness as you slip off into an anesthetic slumber, leaving your life in the hands of a surgeon who will proceed to cut into your body.  The medical field of surgery is an undeniable testament to the progress of mankind’s endless thirst for knowledge and our progress in being able to treat diseases and ailments that were, at one time, completely untreatable and debilitating. Over 26 million surgeries were performed in 2012, and that number steadily increased from 1992 by 17 percent.

When dealing with a process as dangerous, complicated and unpredictable as surgery, patient deaths are an unfortunate certainty. What is most unsettling, though, is that a huge volume of patient deaths occur annually as a result of completely preventable mistakes, such as operating on the wrong person, or performing the wrong procedure, or something as careless as leaving a surgical device in somebody’s body.  Numbers for this tragic reality are hard to pin down, but recent investigations have revealed that anywhere between 210,000 and 440,000 patients die every year due to preventable mistakes, which would make medical errors the third-leading cause of death in America behind only heart disease and cancer. Medical institutions take issue with this number, saying it is closer to 100,000. Realistically, any preventable death is a tragedy.

Specifically related to surgery, John Hopkins University published a study in 2012 reporting that about 4,000 “never events” – events that should never happen during happen surgery – happen annually in the United States.  The study indicated that, every week in America, a surgeon leaves a surgical device such as a sponge or towel in a patient’s body 39 times, performs the wrong surgery on a patient 20 times, and performs surgery on the wrong part of a patient 20 times a week.  These “never events” can have no consequences or life-threatening consequences, and are most likely underreported as some people will simply not be aware if the incident occurred unless something after the surgery goes wrong. Continue reading

The birth of a newborn baby is as natural of a miracle that we can observe in our world. A newborn baby represents hope, potential, and a clean start. Hundreds of thousands of births occur every single day, and unfortunately many of them have complications that result in various difficulties for the newborn baby and its family.  One form of complication, Erb’s Palsy, occurs in infants who sustain nerve damage in their brachial plexus, a cluster of nerves that root in the shoulder, near the neck, and flow down into the arms. These nerves can be injured in various ways, such as during a difficult or abnormally stressful breach birth or when the baby is excessively large.

Sadly, one of the ways Erb’s Palsy can also happen is as a result of a doctor pulling on a baby too forcefully during a challenging birth. It most commonly manifests when a newborn’s head is twisted too sharply in one direction, tearing or cutting off circulation to the nerve cluster. The condition can cause long-lasting or permanent physical disabilities in the child, from temporarily being unable to move its arms or fingers to having full limb paralysis throughout its life.  Most cases of Erb’s Palsy, which happens in about one out of every thousand births, are minor cases where the child can heal over a short amount of time on its own, due to the rapid cell growth and development of newborn babies. Parents can work with doctors and physical therapists to help gradually progress the newborn into overcoming the condition and establishing a normal life.

However, in some cases, if a child who suffered damage to their brachial plexus doesn’t heal naturally within three to six months, the doctors may recommend performing surgery on the baby’s nerves. This is only usually used for young infants, since their bodies can more adequately recuperate nerve function. The child may have to endure a nerve graft, which involves taking nerves from elsewhere in the child’s body and replacing the damaged nerves. In more severe cases, they may need donor nerves.  Even if the surgery if successful, children who suffer from Erb’s Palsy may still experience weakness or loss of function in the affected arm. They will need to undergo months or many years of physical therapy if there is any hope for them to regain normal function. Some may even need to have surgeries later in life. Physically, children affected with Erb’s Palsy will have one arm that is noticeable smaller or shorter than the other. Continue reading

Traumatic birth injury  occurs when the mother suffers severe injuries during the birthing process. In a recent case involving an Alabama woman who sustained injuries during her 2012 labor and delivery, the jury awarded $16 million in punitive and compensatory damages.

Caroline Malatesta claims she was severely injured during the birth process due to medical negligence and reckless fraud. Instead of the “natural birth” process she wanted, Malatesta was forced to labor on her back and remained hooked to monitors the entire time. Instead of allowing her to walk around and labor on her hands and knees, the on-duty nurse pushed the baby’s head into Malatesta’s vagina until the doctor arrived. This use of force resulted in excruciating pain and the development of a condition called pudendal neuralgia that will likely plague Malatesta for the rest of her life.

“I’m Rarely Totally out of Pain”

“Pain is fatiguing because you spend so much of your energy fighting the pain,” said Malatesta. “I’m rarely totally out of pain. I try to take only the amount of medication that will make it bearable, because otherwise I’ll fall asleep. It’s a daily balance.” Since the 2012 injury, the previously active mother of four now spends much of her day resting or taking baths. Her sex life has also suffered, and the injury has made her unable to have more children. “I have to pick and choose and be very intentional about what I choose to spend my limited amount of energy on,” she remarked.

According to Malatesta’s doctor, her injuries are likely permanent. But she remains hopeful.

“I refuse to say never,” she said. “I’m holding out for a miracle.”

When to Sue for a Traumatic Birth Injury ?

Injuries occur during childbirth, even when no one is at fault. In order to justify bringing a legal claim against another party, as with any injury, the victim must be able to show negligence or reckless behavior on the part of the defendant. This can be an extremely complex process, and the help of a personal injury lawyer with experience in traumatic birth injury cases is crucial to the outcome of your case. You attorney will review medical records, conduct witness interviews, and interview hospital staff.

If it can be shown that the conduct of the medical staff did not meet the accepted standard of care, you likely have a personal injury case on your hands. The compensation for injuries will be directly related to the severity of your injuries. For example, in Ms. Malatesta’s case, the award was significant, but so are her injuries. She will likely require ongoing medical treatment and pain management, and her quality of life has been severely impacted. Continue reading

Meconium aspiration syndrome (MAS) is a condition that newborn babies experience after they have breathed (aspirated) meconium into their lungs during or shortly before birth.  Meconium is dark green, sterile fecal matter that is found in the intestine before birth, distinct from stool because it does not contain bacteria.  MAS is a leading cause of severe illness and death in newborns, affecting 5 percent to 10 percent of newborns.  It is especially common when the fetus is under stress, often during labor, and can be exacerbated when the infant is past its due date.  Typically, the meconium is not released in the womb, but intrauterine distress can motivate the fetus to expel the fecal matter under certain conditions present at birth, such as inadequate oxygen in the blood.  This same stress may also cause the fetus to forcefully gasp, thereby inhaling the recently expelled meconium.

Symptoms of meconium aspiration syndrome include: bluish skin color in the newborn; breathing issues; dark, greenish staining or streaking of the amniotic fluid or the obvious presence of meconium in the amniotic fluid; limpness in the newborn at birth.  There are several ways to diagnose MAS.  Before birth, MAS may cause a slow heart rate, which can be detected by a fetal monitor.  At birth, meconium can be found in the amniotic fluid.  The most accurate test for MAS is using a laryngoscope to look for meconium stains on the vocal cords of the infant.  Abnormal breathing sounds, specifically coarse and crackly breathing, can point to MAS.  MAS is also characterized by low blood acidity, decreased oxygen and increased carbon dioxide in the blood.  A chest X-ray may also be used to look for patchy or streaky areas in the lungs.

A newborn’s mouth should always be suctioned once the head is out, which can help prevent MAS.  However, once MAS is diagnosed, there are other treatments available.  Such treatments include, antibiotics for infection; breathing machine to keep the lungs inflated; using a warmer to keep the infant at a normal body temperature; and tapping the chest to loosen secretions.  Typically, the prognosis for infants who experience meconium aspiration syndrome is excellent.  MAS is usually quickly treated and there are no long-term side effects.  Some infants may experience breathing problems for two to four days, but these quickly subside.  Although rare, more severe cases may cause long-term respiratory or developmental problems.  In such severe cases, meconium aspiration syndrome can deprive the brain of oxygen, causing permanent brain damage.  This can lead to the development of cerebral palsy, developmental disabilities, physical disabilities, or mental retardation. Continue reading

Massachusetts’ Noble Hospital is facing lawsuits from 25 patients who claim that improper sanitization of medical equipment may have put them in harm’s way. The colonoscopy patients allege that they were potentially exposed to life-threatening viruses, including Hepatitis B and C, and HIV, due to improperly disinfected endoscopes. Although the potential exposures occurred in 2012 and 2013, the patients weren’t informed until January of this year. Contact a Boston Personal Injury Lawyer Today.

293 Colonoscopy Patients May Have Been Exposed

Nearly 300 colonoscopy patients may have been exposed to the viruses. According to Baystate Health, 243 of the affected patients have been tested, and no evidence of colonoscopy-related infection has been found. At the time of the potential exposure, Noble was an independent hospital, but it has since been taken over by parent company Baystate Health.

Endoscope Lawsuits – The Noble Hospital case is not the first time that endoscopes have been linked to transmission of harmful germs, bacteria, and viruses. Olympus, the world’s largest endoscope manufacturer, is facing multiple lawsuits from patients who claim they became infected with an antibiotic-resistant ‘superbug’ called Carbapenem-resistant Enterobacteriaceae (CRE) after procedures using the company’s endoscope.  In January 2016, a report was released by the Senate Health Committee, announcing that Olympus knew about the risk of infection transmission but failed to warn physicians, consumers, or the FDA for three years. Shortly after, Olympus issued a recall to make design changes they claim will reduce the infection risk. These changes include improving the seal around the new channel to prevent patient tissues and fluids from getting inside the channel.

Antibiotic-Resistant Bacteria

CRE is a life-threatening bacteria that is resistant to most antibiotics, earning it the title of “superbug”. Superbugs are, by nature, extremely challenging – if not impossible – to treat. They may lead to other serious, or even fatal conditions such as brain damage and organ failure.  Patients using certain medical devices, including catheters and ventilators, have a higher risk of contracting superbugs such as CRE. MRSA and C-diff are two other types of superbugs. Approximately 23,000 people die from antibiotic-resistant bacteria every year.

According to the Massachusetts Public Health Department, the new endoscopes were being cleaned using outdated protocol. The newer endoscopes contain an additional channel that administers saline solution to the patient’s body. Unfortunately, this channel was not properly cleaned, resulting in the possible exposure. Continue reading