Justia Lawyer Rating for Robert D. Kreisman

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A recent count showed that more than 25,000 transvaginal mesh cases are pending in the Southern District of West Virginia.  These cases involve the vaginal mesh manufacturers C.R. Bard, Inc., American Medical Systems, Inc., Boston Scientific Corp., Ethicon, Inc., Coloplast Corp. and Cook Medical, Inc.

There are several thousand more cases pending in state court cases around the country, including the states of New Jersey, California, the Commonwealth of Massachusetts and Minnesota.  The first round of bellwether trials involving the transvaginal mesh manufacturers Bard, Boston Scientific and AMS are being scheduled in the Southern District of West Virginia. These cases will be tried in November 2013, as well as February and April 2014.  These will be the first of the bellwether trials involving these three defendants.

There have been other bellwether trials against the defendant C.R. Bard. In the first case, Cisson, et al. v. C.R. Bard, Inc., the jury returned a verdict in favor of the plaintiff, Donna Cisson. In a second case involving C.R. Bard, a settlement was reached with the injured party.

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On Feb. 13, 2008, Richard Potrawski was taken by ambulance to Little Company of Mary Hospital in Evergreen Park, Ill., after suffering a head injury during a slip and fall on ice.  Mr. Potrawski was brought to the emergency room at 12:30 pm.  He had a large contusion above his right eye and a medical history of congestive heart failure as well as atrial fibrillation for which he was taking Coumadin, a blood thinner.

Mr. Potrawski had the potential for a brain bleed, but the defendant ER physician, Dr. Melissa Uribes ordered a CT scan which was done at 2:30 pm.  A scan revealed a 1-cm left-sided subdural hematoma.

Little Company of Mary Hospital did not have a neurosurgeon on staff, so Dr. Uribes took steps to find a hospital with neurosurgical services that would admit Mr. Potrawski. 

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Virginia Gettys was admitted to St. Joseph’s Hospital in Highland, Ill., with abdominal pain, abdominal distension and a report of bloody stools. This followed a recent colonoscopy. Gettys was admitted to the hospital on Jan. 14, 2004. 

The defendant, Dr. Jose Diaz, a general surgeon, performed an exploratory laparotomy to see the cause of Gettys’ symptoms. Dr. Diaz found nothing wrong. 

Gettys, 43, was transferred to another hospital where she died just four days later. She was survived by her husband and children.

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In a 9th Circuit decision handed down in January 2013, the court of appeals found that the Medical Device Amendments (MDA) to the Federal Food, Drug and Cosmetics Act were not a wedge to prevent a plaintiff from making a state negligence claim against Medtronic. In a series of previous cases dating back to 2008, defendants, manufacturers and distributors of medical devices were armed with preemption defenses as a result of the cases of Riegel v. Medtronic, Inc. and bolstered by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.  Because of the conflicts in the different U.S. Circuit Courts, there is a good possibility that the U.S. Supreme Court will take up these cases to clarify this litigation and rectify the conflict in the districts.

In the Stengel v. Medtronic case, the 9th Circuit held that the plaintiff’s claim of state law negligence for the defendant’s choosing not to report known risks of its product to the FDA, was not expressly nor impliedly preempted by the Medical Device Amendments to the Federal Food, Drug and Cosmetic Act.

In the Stengel case, Stengel had a Medtronic pump implanted in his abdomen to control pain he had in his back. Unfortunately, an inflammatory mass formed at the tip of the pump’s catheter that caused permanent paraplegia. 

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A confidential settlement was reached with a hospital emergency room and doctors after a 58-year-old man underwent emergency surgery. The man went to the hospital emergency room after dislocating his hip prosthesis. During the emergency surgery, the attending anesthesiologist attempted unsuccessfully to place an endotracheal tube. 

The man, Doe, required an emergency tracheotomy.

Doe suffered oxygen loss resulting in a hypoxia brain injury because of the lack of oxygen. After being removed from life support, Doe was transferred to hospice where he later died. Doe was survived by his wife and two adult children.

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Continuity of care is paramount in patient healthcare. The goal is always to give the patient the best medical care while at the same time reduce medical errors. For the last 20 years hospitals and physicians have been using electronic health records (EHR).

Although the intent was noble, EHR has caused serious and even catastrophic injury and harm to patients because of poorly written software programs for healthcare providers. Sometimes the medical recording software does not allow for certain medical conditions, treatments and tests. In those cases, the medical providers simply use the drop down or other shortcut to comply with the entry requirements.

It used to be that narrative nursing notes would be important in providing details of patient care. But in most hospital settings, nurses simply use default screens on a computer to make their entries. Physicians often are not able to read the nurses’ remarks or notes. 

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On July 8, 2013, the U.S. District Court in Charleston, W.Va., started the first bellwether jury trial in the C.R. Bard, Inc. Multidistrict Litigation (MDL). Bard manufactures transvaginal mesh products. Not long after the beginning of the trial, the trial judge declared a mistrial. After opening statements and the testimony of at least one witness, a physician then testified inadvertently that the manufacturer (Bard) was no longer selling this type of mesh product, which was at issue in the case.

The court declared the mistrial because the testimony violated a pretrial order that prohibited evidence of a subsequent remedial measure. The case was restarted again in mid-August, but this time the jury returned a $2 million verdict for the injuries suffered by Donna Cisson, a public-health nurse from Georgia. She received the Bard Avaulta Plus implant in 2009. Jurors deliberated for 12 hours over two days before reaching their verdict. The vaginal mesh implant is made by Bard. Bard’s attorneys have said on the record that the company intends to appeal the verdict ($250,000 in compensatory damages and $1.75 million in punitive damages), which they say was wrong because Cisson’s injuries were not caused by Bard’s product.    

The transvaginal mesh products are used in surgical procedures to repair conditions in women that have pelvic organ prolapse and stress urinary incontinence. Bard has removed its Avaulta Plus implant product off the market in 2012 after the FDA ordered that all makers of these implant products review reports of organ damage, infection and pain during sex.

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The Illinois Supreme Court has reversed an Illinois Appellate Court ruling concluding that Section 3.150(a) of the Emergency Medical Services Systems Act immunizes an ambulance driver in a non-emergency transfer of a patient. 

According to the Act, Section 3.150(a), “Any person . . . certified, licensed or authorized pursuant to this act or rules thereunder, who in good faith provides emergency or non emergency medical services . . . in the normal course of conducting their duties, or in an emergency, shall not be civilly liable as a result of their acts or omissions in providing such services unless such acts or omissions . . . constitute willful and wanton misconduct.”

In this case, the plaintiff, Karen Wilkins, sued Rhonda Williams for the injuries she sustained in Oak Lawn, Ill., when she was in an ambulance that crashed into her car. The ambulance was proceeding during a routine, nonemergency transfer of a patient from a hospital to a nursing home. The lawsuit alleged that the driver, Rhonda Williams, and her employer, Superior Air Ground Ambulance Service, were negligent. The defendants moved for summary judgment based on the Emergency Medical Services System Act.

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On June 22, 2006, Raymone Bowe, a 10-year-old boy, was brought by his mother to the emergency department at Norwegian American Hospital in Chicago with a sore throat, headache and a history of fever and vomiting. Raymone was seen in the ER by the defendant, Dr. Joseph Mejia, an occupational medicine/ophthalmology physician. 

Dr. Mejia diagnosed flu and headache and discharged Raymone with instructions to follow up if his symptoms continued or got worse. Two days later, at 12:19 a.m. on June 24, 2006, Raymone’s mother brought him to the emergency department at John H. Stroger Jr. Hospital of Cook County. She reported that Raymone had  3 days of diarrhea, vomiting and fever. The complete blood count showed Raymone had an elevated white blood count, but he was still discharged with a diagnosis of a viral syndrome. Later that  day, Raymone was taken to Children’s Memorial Hospital, where he was diagnosed with Streptococcus pneumoniae meningitis. Raymone was admitted to the pediatric intensive care unit. 

Because of the delay in treating the meningitis, Raymone sustained complete and permanent hearing loss in both ears resulting in surgeries to insert bilateral cochlear implants. 

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Jungie Kim underwent surgery to repair an abdominal aortic aneurysm at Rush Northshore Medical Center on Sept. 24, 2003.  Kim was a 55-year-old housewife.  The surgery was done by a vascular surgeon, Dr. Douglas Norman, a contracted employee at Rush Northshore. 

Following the surgery, Ms. Kim experienced severe ischemia in her right foot. Several more surgical procedures were performed.  There was the development of compartment syndrome pressure in a muscle compartment, which can cause muscle and nerve damages because of decreased blood flow.

In spite of the right foot surgeries, Ms. Kim’s foot became gangrenous, which eventually led to an amputation of the forefoot in April 2004.

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