Hawaii Injury Lawyer Blog

Traumatic brain injuries (“TBIs”) – often the result of car accidents, birth trauma, or sports injuries - have been shown to lead to substantial physical and cognitive delays. Now – after studying and evaluating the long-term effects of sudden blows to the head – two scientists are proposing TBIs be reclassified as a “chronic disease” in order to be better managed and reimbursed by insurance companies.

The recent report indicates that brain trauma creates not only the previously well-known consequences such as headaches, dizziness, memory loss and loss of coordination, but has now been shown to “kick-off” a disease process associated with a higher risk of several chronic diseases including, but not limited to:

• Epilepsy
• Sleep Apnea
• Alzheimer’s
• Psychiatric problems
• ALS or Lou Gehrig’s disease

In sum, the authors conclude TBIs deserve to be classified as “the beginning of an ongoing, perhaps lifelong process that impacts multiple organ systems and may be disease causative and accelerative.”

By changing the classification greater awareness may be brought to the problem of TBIs and accordingly, more funds dedicated both to educating health care workers about TBIs and rehabilitating victims.

Regardless of classification, the families and victims of TBIs understand the devastating impact even mild TBIs may have on an individual. Because the effects of TBIs may last a lifetime and require continuous medical attention, medical costs can be overwhelming. When someone else’s negligence or wrongful act causes the TBI, victims may be eligible to receive compensation.

Continue reading "Traumatic Brain Injuries – Should They Be Treated As A Disease?" »

Delays in delivering babies - often the result of complications during the birth process - may lead to catastrophic birth injuries due to a prolonged lack of oxygen to a baby’s brain. Where oxygen deprivation occurs, infants run the risk of developing permanent neurological conditions such as cerebral palsy.

“Cerebral palsy” refers to an incurable neurological condition affecting the brain and nervous system characterized by a loss of movement, speech difficulties, and impaired development. Sometimes, signs of cerebral palsy may not manifest immediately at birth but develop over time, typically appearing before a child is 3 years old.

Indications of cerebral palsy include:

• Poor coordination
• Exaggerated movements
• Dragging of one foot or leg
• Lack of facial expression
• Generalized delays in development
• Decreased muscle tone
• Vision and hearing problems

Delays in delivery occur for many reasons, and the decisions physicians or medical staff make may significantly impact the outcome of a difficult delivery. In some instances, performance of an immediate C-section can prevent an otherwise serious birth injury from occurring.

Continue reading "Delivery Delays May Lead To Catastrophic Birth Injuries" »

Several national investigations have focused attention on the alarming number of fatalities caused by preventable medical injures. In 1999, the Institute of Medicine issued a report that concluded that 98,000 patients die in hospitals due to avoidable medical errors. In 2009, Hearst Newspapers found that this number approaches 200,000 per year in the United States.

This week, the insurance industry consulting firm Milliman, Inc. put a price tag on the mistakes - issuing a report placing the cost of “measurable medical errors” at a staggering $19.5 billion.

According to the study, approximately $17 billion was the result of providing inpatient, outpatient and prescription drug services to individuals affected by medical errors. Another $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion lost from increased death rates among individuals who experienced medical errors.

The most common avoidable medical errors include:

• Post-operative infections
• Equipment failures
• Wrong site surgeries
• Medication errors
• Falls

As noted in the report “while this cost is staggering, it also highlights the need to reduce errors and improve quality and efficiency in American healthcare.”

Continue reading "Report Finds “Measurable Medical Errors” Cost The Economy $19.5 Billion " »

Recently, renewed focus has been placed on the safety of playing football and the seriousness of repeated concussions and head injuries.

As reported in the Honolulu Star Advertiser, the growing concern of brain injuries and devastating long-term effects from concussions has many questioning whether to continue to play. Further, a recent report in The New York Times has indicated that no helmets can prevent concussions and criticized as misleading studies promoting particular brands as “safe.”

One of the main concerns concerning the safety of football is the prevalence of concussions and traumatic brain injuries (TBI’s).

For those suffering TBIs, the consequences may be severe. TBIs have been linked to both physical and cognitive impairment including nausea, memory loss, dizziness, speech difficult, headaches and lack of focus and concentration. Unfortunately, the symptoms of TBI may not be readily apparent – leading to delays in diagnosis and treatment.

Several sports related associations – including the Hawaii Athletic Trainers Association (HATA) and the NFL - are now emphasizing awareness, including early detection and issuing guidelines regarding when it’s safe to return to play.

Laws are pending or enacted in 22 states regarding concussions. Advocates believe a law is necessary to get everyone – from coaches to parents to participants - on the same page regarding brain injury management. Often coaches will encourage athletes to play after sustaining an injury before it’s safe to do so, potentially exacerbating the effects of a brain trauma.

Hopefully, with renewed emphasis on safety and awareness, we can minimize the potential for serious injuries when playing sports.

Continue reading "Renewed Concerns Regarding Football And Traumatic Brain Injuries" »

One of the first things an attorney will do to assess a birth injury case is obtain the mother's medical records, including the fetal heart tracings, as well as the child's medical records. The fetal heart tracings document the baby's status during the labor and delivery process; they measure the baby's heart rate in relation to the mother's contraction pattern. Physicians and nurses can overlook important clues on the fetal heart tracings that should lead them to speed up a child's delivery. The delay in delivery can be the cause of hypoxic ischemic encephalopathy, or cerebral palsy. The medical records will also include important laboratory data that will help determine whether the hypoxic event occurred. Attorneys typically obtain the baby's diagnostic tests of the brain and placental pathology to help determine when the injury to the child occurred. The customary defense in these cases is that the hypoxic event (period where the child was without sufficient oxygen) occurred days, weeks or months before the mother came in to deliver the child; in which case it couldn't be the fault of the physicians and nurses who delivered the child. The medical records are then reviewed by experts that the attorney retains in the fields of maternal-fetal medicine, nursing, as well as neonatology, pediatric neurology, pediatric neuroradiology, placental pathology, depending upon the issues that arise in the case. It is important that your attorney have access to the top experts in these fields; as the success or failure of your case can depend upon the quality of your expert witnesses. All of these steps are taken to determine whether a client has a viable case for cerebral palsy caused by medical malpractice. Parents who suspect that their child suffers from hypoxic ischemic enchephalopathy, or cerebral palsy, should consult with an attorney to determine whether their child's brain injury was caused by the malpractice of a health care provider.

Our firm of birth injury attorneys recently resolved a birth injury case in Hawaii for $10,000,000. The fetal heart tracings demonstrated fetal distress which required a rushed delivery. The laboratory data indicated that the child suffered from hypoxic ischemic encephalopathy (HIE) that occurred as a result of a delay in the child's delivery. The child suffers from severe physical and mental limitations and requires full-time attendant care.

During the recent health care showdown, President Obama floated the concept of mandating that all claims against health care providers be adjudicated by "health courts". This proposal, viewed by most as an attempt to gain the support of the insurance and health care industries, was not included in the final health care bill. Most describe a health court as looking somewhat like the workers compensation system. The idea is that the health courts would apply prescribed standards of care to every case and assign a value for a patient's damages according to a schedule. Those in favor of the health courts feel that it will result in consistent results, reduce frivolous lawsuits, and reduce health care costs. Those opposing the health courts point out that, despite insurance industry claims, there are very few frivolous lawsuits against health care providers and that creating a compendium of all the possible standards of care is impractical. In most states the statistics reveal a reduction in claims against health care providers and that the average jury award has remained about the same. This has lead some to question whether forcing injured patients to forgo their right to trial by jury is warranted, or whether it's simply a way for insurance companies to increase profits at the expense of injured patients.

Erik Peterson

Some physicians are unaware of pre-surgical "bridging" protocols for patients who are chronically anticoagulated with coumadin. The bridging standard in some cases calls for physicians to administer lovenox in place of coumadin during surgery to prevent thromboembolism. Patients who are "at risk" (prior history of stroke, hypertensive, or other cardiac history) may be candidates for bridging therapy. Failing to bridge at-risk patients can result in stroke, and those patients may have a meritorious medical malpractice claim.

Plaintiff’s contended that nurses and physicians failed to appreciate non-reassuring indications during the labor process and that an expedited c-section would have prevented the child’s injuries. The fetal heart tracing revealed persistent variable decelerations followed by severe and prolonged decelerations and bradycardia thirty seven minutes prior to delivery. The child was transferred to a tertiary hospital where she responded remarkably well to a cooling protocol for hypoxic-ischemic encephalopathy. The child’s neurologic examinations were near normal and there was scant, if any, evidence of a cognitive injury. She was walking at ten months, communicating well at eighteen months and expected to be mainstreamed in the public school system. She was diagnosed with a mild left hemiparesis and gastrointestinal disorder; neither condition requiring attendant care.

This case involved neonatal injuries to premature triplets. One child was seriously injured and the other two were significantly less involved. The injuries were caused by a condition which can be treated if timely diagnosed. It is a common problem in premature infants. We contended that the hospital, neonatologist, and pediatricians failed to properly follow up and screen these children and failed to diagnose the condition in a timely manner. The defendants contended that the mother had been properly warned about the condition and failed to obtain exams in a timely fashion after the triplets were discharged from the hospital. This confidential settlement was believed to be the largest of its type in the history of the state at the time.

Psychological testing is commonly used in Hawai'i to establish the scope of a brain injury. The testing is performed by a licensed psychologist who administers numerous psychometric tests that assess a plaintiff’s ability to recall, recollect and process and information. The testing ordinarily lasts all day and can cause significant fatigue. Psychological testing is particularly important in cases involving a subtle brain injury. Often these plaintiffs will report complaints of short-term memory loss, impairment of executive function, and exhaustion from overworking the brain to process information that was formerly processed without difficulty. The “neuropsychometric tests” can elicit quantifiable information that supports the plaintiff’s contention of a brain injury. The testing is important in cases involving plaintiffs who, on the outside, appear to be fine; they walk, talk and otherwise seem to be cognitively intact to the casual observer. Often these types of plaintiffs are asked in litigation why they can’t return to work, or why they require attendant care. Neuropsychometric testing can identify specific processing problems and is a critical tool in proving the extent of any brain injury.

Birth injured children in Hawai'i who have sued their physician, nurse or midwife for negligently causing their birth injuries will need a life care plan to establish the extent of their future needs. The life care plan specifically identifies everything that the injured child will ever require in terms of hardware, therapies and attendant care. The life care plan is prepared by a rehabilitation physician often in coordination with a nurse. The physician and nurse will visit the child’s home, interview the parents and examine the child. They will prepare a written report detailing their findings that your attorney will use to prove your child’s damages.

Children may sustain brain injuries in the birthing process due to the negligence of their physician, nurse or midwife. If you, or someone you know, has a child with a brain injury from the birthing process, you should seek to have the records reviewed by an attorney who represents children in birth injury cases.