The Iowa Court of Appeals has ordered a new trial in a case involving a man who received the wrong urologic surgery, according to a story reported in the Des Moines Register, among other news sites.
In 2015, an immigrant from Myanmar named Zaw Zaw was referred by his primary care physician (PCP) to The Iowa Clinic, in West Des Moines, for a circumcision.
Because Zaw didn’t speak English, a language translation company provided him with an interpreter for the procedure, as well as for any necessary follow-up appointments. The procedure would be performed by urologist Kevin Birusingh, MD, who at the time was employed by the clinic. Prior to the surgery, however, a miscommunication occurred, leading the urologist to perform a vasectomy instead of a circumcision on his patient. It was not until a later follow-up visit that the error was discovered, along with Zaw’s realization that he was now medically sterile and unable to father more children.
Zaw sued both Birusingh and the clinic, which in turn sued the translation company. Against Birusingh, Zaw made two claims: one, that the doctor hadn’t obtained the proper informed consent, and two, that he had engaged in “negligent” communications with several key individuals, including other clinic staff members and Zaw’s PCP.
In 2019, a trial jury found the clinic liable, awarding Zaw more than $1.4 million in damages. The same jury found no liability on the part of the translation company, however.
Following the verdict, the clinic appealed to the Iowa Court of Appeals. Late last month, the appeals court sent the case back to the lower court for a new trial.
In its ruling, written by Judge Sharon Soorholtz Greer, the appeals court said it could find no evidence that, in failing to communicate personally with his colleagues or Zaw’s PCP, Birusingh had violated an established standard of care. For this reason, Judge Greer said, the claim of negligent communication should have been dismissed before it went to the jury. Because it hadn’t been, however, she concluded there was no way of determining to what extent, if at all, it affected the jury verdict. She ordered a new trial that would exclude the negligent communication claim.
In its appeal, The Iowa Clinic also sought to have the first claim dismissed — the one involving informed consent. Contrary to the testimony of a defense expert witness, the clinic argued, Iowa malpractice law doesn’t automatically fault a doctor whose patient misunderstands the procedure he or she is about to receive — as long as, that is, the doctor has made a “reasonable effort” to inform the patient beforehand.
Judge Greer agreed on this point of general law but still permitted the retrial to go forward. Why? She did so because, as the decision made clear, no expert testimony is needed to establish medical malpractice if the lack of care is so obvious that it’s within the comprehension of a layperson.
Zaw and his attorney, Ben Novotny, have petitioned the Iowa Supreme Court to review the appeals decision.
If the high court refuses that petition and the trial court schedules a new trial on the informed consent issue alone, Novotny is optimistic: “However it’s determined, whether it’s here [district court] or at the Supreme Court, we’ll live with the court’s decision, we’ll retry the case, and we’ll ask for more money.”
Jury Exceeds State Cap in Infant Head-Trauma Case
In what’s being called the state’s largest medical malpractice judgment to date, a Nebraska jury has handed down a multimillion-dollar award to a couple whose daughter was improperly discharged from the hospital after suffering a fall-related seizure, a story in the Omaha World-Herald reports.
The fall occurred in 2017 at a day care center, where then 11-month-old Vivianne Marousek hit her head while playing and began experiencing a seizure. Taken to an Omaha hospital, the infant was first treated by an emergency department (ED) doctor and then placed in the care of a hospital pediatrician. (The ED doctor wasn’t a party to the subsequent suit.)
According to the plaintiffs, after examining and observing the child, the pediatrician concluded that her seizures wouldn’t persist and that she should be discharged from the hospital. Within 48 hours after returning home, however, Vivianne suffered severe seizures, resulting in debilitating brain damage. Healthy before her fall, the now 6-year-old is blind, in a wheelchair, has a form of cerebral palsy, and can’t communicate beyond rudimentary responses to her parents’ voices.
After a 10-hour deliberation, the trial jury found both the hospital and the pediatrician liable for the child’s injuries. It awarded $21.5 million in damages for Vivianne’s ongoing medical care and $4.6 million in non-economic damages to her parents.
An attorney for the hospital and pediatrician is expected to contest the award. Specifically, he’s expected to ask that the trial judge impose Nebraska’s $2.25 million cap on medical malpractice verdicts, thereby reducing the total award to $4.5 million, to be split evenly between Vivianne and her parents.
If that happens, the attorney for the plaintiffs has promised to contest the request, arguing that the state’s cap is unconstitutional and that the child’s lifetime medical bills will far exceed it.
University’s Negligence Caused Them Unnecessary Suffering, Women Claim
A group of seven women has sued Yale University Medical School, in New Haven, Connecticut, for failing to safeguard the pain medication normally used during in vitro fertilization (IVF) treatments, reports a story on Eyewitness News3 and other news sites.
The women’s suit follows a March 2021 guilty plea by a Yale staff nurse who was addicted to pain meds. In her plea, the nurse admitted to using a syringe to extract fentanyl from vials and then refilling those same vials with saline. Federal prosecutors say that at least 175 vials — some containing only saline and others with trace amounts of fentanyl — were tampered with in this manner.
As a result of Yale’s failure to guard against such actions, the women claim, they were subjected to unnecessary trauma and stress during their IVF treatments, which experts say can be unpleasant and take a physiologic toll on the body without the proper pain control.
The current suit won’t be the last, says the attorney representing the group of seven women. “We have somewhere on the line of 40 to 50 women who’ve been affected who contacted us,” he says.
A spokesperson for Yale declined to comment on the pending litigation.
The content contained in this article is for informational purposes only and does not constitute legal advice. Reliance on any information provided in this article is solely at your own risk.
Wayne J. Guglielmo, MA, is an independent journalist based in Mahwah, New Jersey.
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