K.M., a minor born at 24 weeks gestation, required prolonged NICU admission due to her ‘threshold of viability’ prematurity. Plaintiff, K.M’s mother, brought suit alleging negligent failures on the parts of our neonatology physicians to recognize the signs and symptoms of omphalitis (umbilical cord catheter infection), and institute timely IV antibiotic therapy. It was alleged that delay in starting antibiotics resulted in the baby developing a blood stream staph infection that seeded to her hip resulting in osteomyelitis that entirely destroyed the child’s left hip acetabulum and femoral head. The child, now seven years old, faces a lifetime of periodic surgeries with future medical expenses alone blackboarded at $1 million+.
It was the defense’s contention that this baby never had omphalitis and that the first sign of a possible infection appeared days after the umbilical cord catheters had been removed at which time empiric IV antibiotics were immediately started while blood cultures were pending. Emphasis was placed on our care providers’ acute awareness that micro-preemies are extremely fragile and at significantly heightened risk of infection. By way of the medical records, we demonstrated the constant vigilance employed to watch for signs, symptoms or labs suggestive of possible infection. We successfully refuted the Plaintiff’s theory that the source of the baby’s blood borne infection were the umbilical vessel catheters by establishing that there were a host of more likely bacterial entry portals with this tiny baby. Well credentialed experts in the fields of neonatology and pediatric infectious disease were presented by both sides. The seven day case was tried before a 12 member jury in Lancaster County. Following approximately 2 hours of deliberation, the jury returned a verdict of no negligence in favor of the neonatologists.
As a side bar, Plaintiff’s counsel recently obtained a $6.4 million medical malpractice verdict in Lancaster County before the very same Judge. While Plaintiff’s counsel presented a strong case, we are pleased that the outcome of our trial was different.
Michael’s interventional radiologist client performed an ultrasound-guided biopsy of the decedent’s left thyroid without complication. Two weeks later, the decedent returned to undergo an ultrasound-guided biopsy of her right thyroid. Following the procedure, the decedent returned home without apparent complication. Later that evening, her boyfriend noticed swelling in her neck area which was greater than what she had experienced two weeks prior. Despite repeated pleas to seek medical attention, decedent refused. A few hours later, the decedent was found not breathing and unresponsive and later passed away. Decedent’s estate filed suit alleging that decedent’s death was the result of Defendant-physician’s negligence. Moreover, despite Defendant-physician’s discharge instructions that he immediately be informed of any excessive swelling in the neck, Defendant-physician did not learn of the events until being served with a lawsuit.
This four-day trial, in Schuylkill County, involved, among other things, application of the Supreme Court’s 2019 Decision of Mitchell v. Shikora, 209 A.3d 307 (Pa. 2019) as Plaintiff attempted to not only exclude any evidence of informed consent, but also the well-known risks and complications of the procedure. A defense verdict was awarded shortly after the conclusion of Michael’s closing argument.
In a death case, Plaintiff daughter alleged that our primary care physician client negligently treated her 40 year old father’s chronic pain and severe anxiety with excessive and prolonged opioid and benzodiazepine prescriptions causing addiction and her father’s ultimate death from hypothermia. Having not heard from him for three days, the man was discovered in a frigid mobile home with minimal vital signs from which he could not be resuscitated despite the copious administration of Narcan. Plaintiff’s two well-established and credentialed expert witnesses opined that the root cause of the man’s death was respiratory depression brought on by his opioid pain and anti-anxiety benzo medications. During the course of the week long trial in Dauphin County, the Defense called numerous fact witnesses and two expert witnesses in establishing that our client’s prescription practices over a seven year period were within standards of acceptable pain management care applicable at the time. It was further persuasively postulated that the event precipitating the man’s hypothermic demise was his likely ‘binge’ use of crystal meth (a non-narcotic illicit stimulant drug) followed by a ‘crash’ phase resulting in overwhelming somnolence; explaining his frozen exposure. (In pre-trial discovery, it was learned that a hollow pen was found on the man’s person which ME’s Harrisburg trial defense team of Michael Badowski and Anthony Gabriel secured independent lab analysis revealing the interior presence of methamphetamine.) Following two hours of deliberations, the jury returned a verdict of no negligence. Pre-trial, the defense was confronted with and successfully thwarted a plethora of motions to exclude evidence along with repeated attempts on the part of Plaintiff to assert claims of punitive damages. Plaintiff would not budge from her $5 million settlement demand.
Summary judgment was achieved for our pediatric orthopedist client in a case of first impression in Pennsylvania dealing with allegations of negligent failure to report suspected child abuse under Pennsylvania’s child abuse reporting statute. Briefly, our client assessed three month old infant Plaintiff for radiographic discovered rib fractures in September 2002. The Doctor concluded that the rib fractures were most likely the result of bone demineralization associated with the baby’s premature birth. Four months later, the child suffered profound neurological injury thought to be due to shaken baby syndrome at the hands of his father. Following the father’s conviction for child abuse, the mother brought suit on behalf of her son against our client and other treating healthcare providers. Plaintiff postulated that had the Doctor reported the earlier rib fractures to child services as possible child abuse, the catastrophic events four months later would have been averted. In short, the Lancaster County trial court accepted our argument that neither Pennsylvania’s mandatory reporting child protective services law nor standard common law theories of professional negligence impose a civil duty upon physicians to protect their patients from injuries subsequently inflicted by others. The trial court authored an exquisitely detailed and cogent opinion in support its decision. Michael M. Badowski represented the pediatric orthopedist in this case.
In a case tried and argued by Margolis Edelstein partner, Michael Badowski, the Pennsylvania Supreme Court reversed and vacated a $750,000 jury award in a retained sponge case with a factual twist.
In 1993, the Plaintiff had a c-section delivery at our client Hospital. In 1997, she developed abdominal pain which prompted an exploratory laparotomy during which a retained surgical sponge was detected. Plaintiff filed suit in Franklin County and recovered a significant award. Plaintiff again became pregnant and in 1999 underwent a 2nd c-section delivery at a different hospital. Seven years later, in 2006 a 2nd retained sponge was discovered by happenstance from a CT scan. Plaintiff again filed suit against our client hospital. Issues related to the statute of limitations and tortfeasor identification rule formed the basis for summary judgment motions which were denied by the trial court. The case proceeded to trial resulting in a $750,000 award for the Plaintiff. On appeal, Mr. Badowski successfully argued that the case should never have been permitted to proceed to trial insofar as the Plaintiff could not prove from which of her three surgeries and at which of the two hospitals the 2nd sponge had been retained. Under Pennsylvania law, Plaintiffs maintained the burden of proving which of the two possible healthcare facilities was responsible for the retention of the surgical sponge discovered in 2006. The two hospitals associated with the surgical procedures performed in 1993, 1997 and 1999 were not joint tortfeasors and only one of the two could be liable with the other being completely without fault. Only one of the three procedures could have been responsible for the 2006 discovered retained sponge. Under established law in Pennsylvania, it was the Plaintiffs’ burden to prove, by legally competent and non-contradictory evidence, which one of the possible non-joint tortfeasor defendants were responsible for the 2nd sponge’s retention. This Plaintiffs could not do and the Pennsylvania appellate courts agreed and reversed and vacated the jury award.
Margolis Edelstein was called upon to defend a urology practice and its physician urologists in five separately filed lawsuits involving allegations of negligent transmission of hepatitis C. For many years, the urology group unknowingly conducted in-office prostate biopsies using reprocessed sterilized biopsy instruments which had been designated by the manufacturer for “single use only”. When the practice physicians were made aware of this, they alerted approximately 2000 of their past prostate biopsy patients and offered to pay for each of them to be tested for infectious diseases. 1800 patients were tested; five of which proved positive for HCV. All five filed suit. Margolis Edelstein partner, Michael Badowski, secured dismissal of all five cases by establishing that there was entirely insufficient proof linking the patients’ newly diagnosed HCV to their prostate biopsies insofar as HCV can remain dormant for decades without symptoms. In one case, Mr. Badowski succeeded in the Plaintiff’s attorney being sanctioned with the payment of attorneys’ fees when review of his client’s past medical records conclusively confirmed that he had been diagnosed with HCV long before his prostate biopsy.
Margolis Edelstein attorneys, Michael Badowski and Paul Weisbein, successfully defended a physician assistant and a primary care physician and their principle Hospital, in an emotionally charged trial in Luzerne County, Pennsylvania culminating in a non-suit entered on behalf of the healthcare providers. Plaintiff, now a 34 year old man, claimed he was rendered emotionally, developmentally and mentally disabled from seizure induced brain damage allegedly caused by an overdose of an anti-asthmatic medication prescribed by our clients when Plaintiff was five years old. Under cross examination, the Plaintiff’s standard of care expert ultimately conceded that the providers used appropriate judgment in balancing the risks and benefits of the dosages employed. Plaintiff’s second standard of care expert was precluded from testifying when it was uncovered during qualification voir dire that the expert had recently been ordered by his state’s board of medicine to surrender his license for episodes of exchanging sex for drugs with patients. Additionally, the jury was directed to disregard the Plaintiff’s toxicology expert’s direct testimony when it was revealed through cross examination that the foundation of his opinions was premised upon a formulation of the medication different than that which had been prescribed by our clients. Insofar as these experts were relied upon by Plaintiff’s damages experts, they, too, were precluded as their opinions were rendered irrelevant. All tolled, five of Plaintiff’s six designated experts were excluded. Consequently, the Court was left with no choice but to dismiss the case against our clients.
The defense was prepared to present a cadre of exceptionally credentialed experts to cogently prove that Plaintiff’s life long seizure disorder and cognitive impairments were the product of the man’s markedly premature birth; having nothing to do with the asthma treatment provided by our clients.
A Dauphin County jury rendered a unanimous verdict of no negligence in favor of our client hospital and its attending physicians, residents and nurses after a week long trial defended by our Partner, Michael M. Badowski, Esq.
This case involved a 48 year old African-American gentleman who presented to our client hospital’s emergency department with a three day history of a painful “volley ball size” swelling of his scrotum. The patient was promptly seen by the ED physicians and medical residents. Blood work by way of CBC and two blood cultures were obtained. The man had a moderately elevated WBC with left shift bands. The blood cultures eventually reported no bacteremia. The patient had mildly elevated heart and respiratory rates. He was started on triple broad spectrum IV antibiotics. While in the ED, the man had one episode of hypotension which responded immediately to a bolus of fluid infusion. A urology consult was secured. The urologist performed an incision and drainage to the patient’s scrotum. Cultures of the wound grew gram positive staff in clusters which suggested the likelihood of MRSA which prompted our client attending medical physicians to add vancomycin to the patient’s antibiotic regimen. The patient was placed on telemetry and his vital signs remained stable although he did demonstrate mild increases in his heart and respiratory rates which was thought to be secondary to pain. Within an hour of the recording of the last vital signs, the patient suddenly arrested with a pulseless electrical heart rhythm. The code team succeeded in restoring heart and respiratory functioning but not in time to prevent anoxic brain damage. The man never regained consciousness and he was maintained on life support at a nursing facility until his death two years later.
Plaintiffs theory of liability was that the man had severe sepsis which progressed to septic shock that precipitated his cardiorespiratory arrest and that he should have been maintained in an ICU setting with placement of a CVP line. Plaintiffs’ well credentialed critical care expert postulated that closer monitoring would have prevented the patient’s arrest. By way of experts in the specialty fields of cardiology, infectious disease and internal medicine the defense successfully established that the man’s arrest was not due to septic shock but, rather, a likely pulmonary embolism.
Congratulations to Mike Badowski for this excellent result!
This case involved alleged negligent failures on the part of the defendant pediatricians to properly assess and treat a sports related ankle injury in a nine-year-old boy who, in rapid order, went on to develop a systemic inflammatory response due to presumed sepsis which rapidly lead to a coagulopathy and purpura fulminans resulting in compartment syndrome to the involved leg and then gangrene to all of the boy’s extremities necessitating life saving amputations of the boy’s legs and hands.
The patient was seen by our pediatrician late in the afternoon on a Friday as an acute visit for a sports-related injury to the ankle which had occurred the day before. A review of systems with the boy and his parents reported no other acute complaints. The child had no other significant health issues by history. Accordingly, the Doctor’s physical examination was localized to the boy’s right ankle and no vital signs were taken. The boy’s ankle was edematous and ecchymotic and was tender. There were no apparent cuts, scrapes or abrasions to the ankle and range of motion of the ankle was fully intact upon exam. An x-ray was secured to rule out fracture which was interpreted by a radiologist as being negative and without evidence of soft tissue damage. The parents were instructed to have their son rest and elevate the leg and to apply ice and administer ibuprofen to reduce the swelling. The parents were told to call if their son developed new symptoms or if they had any concerns. By all accounts, but for the pain in his ankle, there were no changes in the boy’s condition the remainder of Friday and he slept through the night.
Late Saturday morning, the boy awoke feeling ill with a temperature and occasional diarrhea. The mother telephoned the pediatric practice around 1:30 pm and reported her son’s ankle injury and visit to the doctor the day before with a negative x-ray and that her son was complaining that the pain was moving up the leg and that he had the new onset of fever ranging between 101 and 104 along with a couple episodes of diarrhea. Communication with the mother and on-call defendant pediatrician were through a medical assistant. The doctor attributed the increase in leg pain to the report that the boy had been ambulating somewhat and the fever and diarrhea were thought to represent an unrelated viral gastroenteritis. Based upon the telephone exchange of information, the Doctor did not believe that a visit was warranted. Instructions to reinforce that the boy stay off of his leg along with diet and fluid directions to address the fever and diarrhea complaints were issued. By the account of the parents, the appearance of their son’s ankle did not change throughout the remainder of Saturday.
At around 2:00 am on Sunday morning, the boy awoke with an episode of vomiting. He had panting respirations and was observed by the mother to be flushed with blue lips (cyanotic). The boy was taken immediately by the mother to the emergency department. En route to the hospital, the boy became increasingly short of breath and upon his arrival at the hospital he was found to be in extremis with suspected septic or toxic shock. All blood cultures were negative for growth. Antibiotics, oxygen and fluid therapy were administered in the ED and he was promptly transferred to a tertiary PICU facility where he rapidly developed DIC and purpura fulminans which led to the required limb amputations. A year following his amputations, testing revealed the presence a heterozygous Factor V Leiden genetic blood clotting functioning abnormality. The Leiden mutation causes resistance to the activation of antithrombin protein C which is essential to the blood’s normal clotting cascade balance which normal blood Factor V is designed to initiate. Thus, people with the Factor V Leiden mutation are predisposed to developing thrombosis and thrombemboli.
During the ten day trial, the defense emphasized the extreme rarity of this event and that even today, no one knows definitively what happened to this boy. Despite negative cultures, the experts assumed that there must have been a bacterial infection involved here that acted in concert with the inflammation associated with the ankle trauma and the later discovered Factor V Leiden blood clotting anomaly to create the perfect storm in this child. The defense presented exceptionally distinguished experts in the fields of general pediatrics, pediatric hematology, pediatric infectious disease and pediatric critical care from Georgetown, Harvard and Johns Hopkins.
Economic damages in the case were black-boarded in excess of $15 million dollars. The ten day twelve member jury trial resulted in a unanimous verdict for our pediatrician clients. The case was defended by Margolis Edelstein partner, Michael M. Badowski.
Michael Badowski, Esq., a partner in our Central Pennsylvania office, successfully defended his opthamologist client in a jury trial where plaintiff alleged vision impairment following cataract surgery. The plaintiff contended three months following right eye phacoemulsification cataract removal with intraocular lens implantation performed by our ophthalmologist client, Plaintiff developed a hypertensive retinopathy cotton wool spot (CWS). Plaintiff contended the cataract surgery was contraindicated in the face of her elevated blood pressure on the day of surgery and this condition was the cause of her later developed CWS. Plaintiff asserted she sustained nerve damage from the CWS resulting in a permanent visual disturbance in her right eye. The defense persuasively established that Plaintiff’s later occurring CWS was completely unrelated to her cataract repair. Following a week long trial, a 12 member Cumberland County jury unanimously found in favor of our client.