Medical Malpractice

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Robert Guinan, Appellant, v. Tenet Healthsystems of Hilton Head, Inc, et al., Respondents.


FACTS

Guinan suffered from neck, shoulder, and other pain, and received epidural injections of pain medication in his cervical spine on March 13, 2002, from Dr. Philip James Zitello (Zitello). After the injection, Guinan began experiencing chest pains and weakness in his legs. As a result, Guinan contacted Dr. Gaston O. Perez (Perez), his family physician. Perez examined Guinan, administered some medications, and instructed Guinan to go to the emergency room at Hilton Head Regional Medical Center (Hilton Head Regional).[2] Perez contacted the emergency room and explained Guinan's relevant medical history. Additionally, Perez contacted Zitello, and Zitello agreed to meet Perez and Guinan at the emergency room.

Perez admitted Guinan into the emergency room and ordered a neurology consult. Dr. Harvinder Kohli (Kohli) performed the neurology consult and ordered the administration of a blood thinner to treat a suspected spinal cord occlusion or clot. Kohli called Memorial Health University Medical Center (Memorial Health) in Savannah, Georgia, to discuss the case with a neurosurgeon and spoke with Dr. James Lindley (Lindley).[3] Lindley suspected Guinan's symptoms were related to a hematoma (or a bleed), rather than a clot. As a result, the blood thinner was discontinued, and Guinan was transported to Memorial Health. Upon arrival, Guinan was given a MRI, which revealed the presence of a hematoma in Guinan's cervical and thoracic spine. Lindley successfully evacuated the hematoma.

Guinan brought a medical malpractice action against Hilton Head Regional, Kohli, and Zitello. Guinan alleged Hilton Head Regional: (1) failed to properly diagnose the hematoma; (2) failed to properly administer drugs; (3) administered drugs known to be or should have known to be dangerous to Guinan; (4) failed to warn Guinan of the danger presented by the drugs; (5) failed to require Zitello to be present in the emergency room; (6) failed to obtain a neurological consult; (7) failed to exercise the degree of care required of physicians in an emergency room setting; (8) failed to have proper diagnostic equipment available; and (9) failed to immediately transfer Guinan to Memorial Health for emergency care. As to Kohli, Guinan asserted he: (1) failed to properly diagnose the hematoma; (2) failed to properly treat Guinan; (3) increased the harm to Guinan by administering drugs he knew or should have known would harm Guinan; (4) failed to consult a neurosurgeon prior to administering the blood thinner; (5) failed to exercise the degree of care required by the circumstances; and (6) failed to immediately transfer Guinan to Memorial Health for emergency care. Lastly, Guinan claimed Zitello: (1) failed to properly administer the epidural injection; (2) failed to recognize the symptoms of a failed epidural injection; (3) failed to warn and inform Guinan of the symptoms of an epidural injection and warn Guinan of possible paralysis; (4) failed to attend to Guinan at the emergency room; (5) failed to see that Guinan was immediately sent to surgery; (6) failed to exercise the degree of care required of physicians in the profession; and (7) failed to warn and inform Guinan of the risks of an epidural hematoma and other risks of the epidural injection.

The first scheduling order in this case was dated September 7, 2005, and provided an April 15, 2006, discovery deadline. On May 26, 2006, an amended scheduling order was issued extending the deadline to June 1, 2006. After a motions hearing on July 12, 2006, a final scheduling order was issued extending the deadlines for another forty days. The scheduling order also stated the defendants could not file motions for summary judgment until the expiration of the discovery deadlines.

On October 2, 2006, after the discovery deadlines had expired, the master heard the defendants' motion for summary judgment. Sixteen days later, the master issued an order granting the defendants' motion. The master found Gupta testified he was not an expert in the field of neurology or emergency medicine; had never been involved in the diagnosis and treatment of a patient with spinal hematoma; had no criticisms of the nursing staff at the emergency room, or of Kohli; stated Kohli administered the standard of care relative to the care and treatment of Guinan; did not have any material experience in an emergency room in the United States; was unwilling to comment on the performance of emergency room physicians; and did not offer any opinion that any act of the defendants was the proximate cause of any of Guinan's injuries.

Additionally, the master found the time for discovery had expired, and Guinan had a full and fair opportunity to complete discovery. Accordingly, the master granted defendants' motion for summary judgment because Guinan was without expert testimony to create a genuine issue of material fact with respect to his claims of medical negligence against the defendants. This appeal followed.

Standard of Review

"Since it is a drastic remedy, summary judgment 'should be cautiously invoked so that no person will be improperly deprived of a trial of the disputed factual issues.'" Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 112, 410 S.E.2d 537, 543 (1991) (quoting Watson v. S. Ry. Co., 420 F. Supp. 483, 486 (D.S.C. 1975)). An appellate court reviews the grant of summary judgment under the same standard applied by the circuit court. David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006). The circuit court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). "A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner." David, 367 S.C. at 250, 626 S.E.2d at 5. Summary judgment "must not be granted until the opposing party has had a full and fair opportunity to complete discovery. Nonetheless, the nonmoving party must demonstrate the likelihood that further discovery will uncover additional relevant evidence and that the party is 'not merely engaged in a "fishing expedition."'" Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003) (quoting Baughman, 306 S.C. at 112, 410 S.E.2d at 544) (internal citation omitted).

LAW/ANALYSIS

I. Incomplete Discovery

Guinan contends discovery was incomplete because Hilton Head Regional failed to produce x-rays until the day of the summary judgment hearing and he had not received the emergency telephone records from Hilton Head Regional or the phone company.[4] We disagree.

In Dawkins v. Fields, 354 S.C. 58, 71, 580 S.E.2d 433, 439-40 (2003), our supreme court rejected Dawkins' "argument that summary judgment was premature because they did not have a full and fair opportunity for discovery." A party claiming summary judgment is premature because they have not been provided a full and fair opportunity to conduct discovery must advance a good reason why the time was insufficient under the facts of the case, and why further discovery would uncover additional relevant evidence and create a genuine issue of material fact. Id. at 71, 580 S.E.2d at 439-40.

Here, Guinan alleges the phone records would reveal how long the blood thinner was administered, and the x-rays would prove Guinan did not have any vascular problem early on, leaving epidural hematoma as the only possible diagnosis. However, the length of time the blood thinner was administered had no adverse effect on Guinan's condition. Accordingly, we believe the master did not err in hearing the defendants' summary judgment motion because the discovery deadlines had expired and Guinan was afforded a full and fair opportunity to conduct discovery. Moreover, on appeal, Guinan fails to demonstrate further discovery would uncover additional relevant evidence or create a genuine issue of material fact.

II. Gupta's Testimony

Guinan maintains the master erred in granting the defendants' general summary judgment motion when Gupta's testimony "clearly implicated" the defendants in deviations from the standard of care. We disagree.

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Additionally, medical malpractice lawsuits have specific requirements that must be satisfied in order for a genuine factual issue to exist. Specifically, a plaintiff alleging medical malpractice must provide evidence showing (1) the generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants' field of medicine under the same or similar circumstances, and (2) that the defendants departed from the recognized and generally accepted standards. Also, the plaintiff must show that the defendants' departure from such generally recognized practices and procedures was the proximate cause of the plaintiff's alleged injuries and damages. The plaintiff must provide expert testimony to establish both the required standard of care and the defendants' failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants.

(parts omitted)
Gupta testified he did not have any criticisms of how Zitello administered the cervical epidural steroid injection. However, when asked what he would have done if he had been in Zitello's position, he replied:

A: If I get a call from a physician regarding just the chest pain itself, I would rather tell them to go ahead with the cardiac even to work. But I would certainly ask him if the patient is having any shooting pain in the upper extremities, or is he developing any weakness in the leg. In that event, I would tell the physician who's calling me that I will be right over, and I will see the patient myself.

Q: And that would be the standard of care?

A: That would be my standard of care.

Q: You think that would be the standard of care for someone in your profession that's doing this?

A: I think so.

We find summary judgment was proper because Guinan failed to provide evidence, through his expert witness, showing the defendants departed from the recognized and generally accepted standards of average, competent practitioners in their field of medicine under the same or similar circumstances. The most damaging portion of Gupta's testimony is his statement that Zitello deviated from Gupta's personal standard of care; however, we do not find that testimony sufficient to withstand summary judgment because it does not state Zitello deviated from the generally accepted standard of care. More importantly, Guinan failed to show defendants' alleged departure from the generally recognized practices and procedures was the proximate cause of his injuries.

CONCLUSION

Accordingly, the master-in-equity is

AFFIRMED.

THOMAS and GEATHERS, JJ., concur.

Supreme Court Justice Retires

U.S. Supreme Court Justice David Souter plans to retire at the end of the court's current term, National Public Radio reported Thursday.

Citing what it called reliable sources, NPR said Souter, 69, has informed the White House of his decision and is expected to remain on the bench until his successor has been confirmed.

A spokeswoman for the court said Thursday Souter had "no comment on these reports that he is planning to resign," The New York Times reported.

The court has wrapped up presentation of oral arguments for the term and will issue decisions until the end of June.

If the report is accurate, Souter's retirement will give President Barack Obama his first opportunity to appoint a justice to the Supreme Court.

Such a pick would not likely change the ideological composition of the court, NPR said. Souter -- who was appointed by former President George H.W. Bush --- normally votes with the more liberal justices.

Are you Stressed Out over Injuries from an Accident?

If you suffer serious personal injury as the result of an automobile accident, whether you are driver, passenger or pedestrian, life can become very difficult. Physical injuries affect your ability to work, take care of your family, and pay your bills. If you were involved in an automobile accident and it was not your fault, you may need to consult with a personal injury attorney. You may want an experienced personal injury attorney to help you get all the compensation you are entitled to such as medical expenses, lost wages and pain and suffering resulting from the accident. A personal injury attorney can help give you an idea of how much your case is worth and the steps involved in filing a lawsuit, if your case can’t be settled for a reasonable able sum based on your medical bills, lost wages, lasting bodily injuries.

Dealing with insurance companies can be overwhelming and a bit frightening for most people. An experienced personal injury attorney can help you deal with these issues and help you make the best decisions for you and your family. A good attorney can also help you determine if a settlement offer made by an insurance adjuster is fair to you. There are a lot of legal issues to consider regarding automobile accidents. It may help to have someone on your side to advise you of your rights, deal with the insurance company and court system, and help you get your life back on track.

Things you should do if you are ever involved in an accident include, getting a copy of your accident report and getting the contact information for all witnesses; getting copies of your medical bills and photos of the injuries and vehicle; and follow the instructions of your doctors. When you meet with a personal injury attorney provide the attorney with all of your information. And most importantly, talk to an attorney before you sign any releases. If you need the services of an attorney, the sooner you hire one the more likely you are to properly protect your legal interests.

Most attorneys who represent victims of automobile accidents do not charge any consultation fee and work on a contingency fee basis, which means the attorney will only get paid if you get a financial settlement. So it should not cost you anything to see if an attorney can benefit you and whether you need legal representation regarding your case. So if you are involved in an automobile, truck, motorcycle, dog bite, or any other type of accident, suffered injuries, and it was not your fault, call a personal injury attorney today. You may be happy you did. Let your attorney worry about the court process. While you may be entitled to financial compensation, there is no guarantee that you will be offered the compensation you deserve for your damages. Your attorney can help you understand how the legal process of settling an accident case, both the good and the bad.

Serious Personal Injury: South Carolina Workers Comp, Disability, and Auto Accidents

If you can no longer work due to and serious personal injury or medical condition, you may qualify for Social Security Disability benefits (SSDI). SSDI is a government run tax-funded program that provides qualifying individuals and their family members with income in the form of monthly disability payments. To qualify for SSDI you must fit all of the following criteria: 1) have a physical or mental condition that prevents you from engaging in any “substantial gainful activity”, and 2) the condition must be expected to last at least twelve months, and 3) must be under the age of sixty-five, and 4) must have worked five out of the last ten years unless under the age of 22. The current time frame for these claims in South Carolina is approximately 24 months, which includes the initial application, reconsideration, and hearing stages of a claim.

Recovering from a serious personal injury is often a long and difficult process. Added to the physical and emotional stress brought on by any major injury are the legal and monetary problems that come after an accident. Long periods off work or of reduced productivity place pressure on your finances. You may face loss of income and fall behind on your bills. If you do not have adequate health insurance, you will face a mounting pile of medical bills as well, resulting in debt collection and impaired credit. Or worse, limited or no access to necessary medical treatment. Knowing your options will help you get your life back on track and provide peace of mind for you and your family.

If your personal injury is work related, you may be eligible to receive Workers Compensation insurance payments. Your employer, in exchange for you not suing them because of your injury, pays your medical expenses, and may be required to pay weekly compensation benefits and compensation for permanent injury or impairment. Most employers in South Carolina are required to carry Workers Compensation insurance on their employees, with a few exceptions. It was designed as a way to reduce litigation while providing the employee with an avenue for compensation and limtiting the employer's liability exposure. There are time limits to notify your employer of the injury as well as filing a claim, so consult with an attorney immediately.

When you suffer personal injury because of an auto accident, your compensation usually comes from the auto insurance company of the driver at fault, and possibly your insurance company if the other driver has insufficient or no insurance to compensate you. As with an injury at work, after a serious auto accident, if you fit the qualifications for SSDI you may still collect this as well. It will cost you nothing for our law firm to evaluate your case to determine your legal needs. In fact, in many small or minor impact accidents, you may be able to handle the negotiation with the adjuster on your own and save yourself money. The same usually does not apply for serious injuries.

Recovering from a major personal injury is difficult. With time and patience, you will regain a life that you can enjoy. It is important for you get started on the application processes for aide as soon as possible. By taking care of the legal and monetary aspects early, you can free yourself to concentrate on getting better. As always, consult with an attorney when deciding on any legal actions. A good attorney can lead you through the lengthy SSDI application process and insure that you are receiving the correct compensation from both Workers Comp and auto insurance companies.

Most attorneys work on a contingency fee basis for most personal injury claims, which means you will not have pay anything if you do not get any compensation. One of the most important things to remember regarding an injury claim, whether it is disability, workers compensation or an accident is medical documentation. Quite often a claim is denied or underpaid because the claimant can't document their medical condition or injuries. Many times the injuried associated with a work related accident or serious automobile accident may qualify the claimant for disability benfits in addition to any other benefits. As many times the injuried associated with a work related accident or serious automobile accident may qualify the claimant for disability benfits in addition to any other benefits, it is extremely important to seek legal advice.

Should You Settle Your Injury Claim without a Lawyer?

You definitely do not need an attorney for every small accident case. What is a small accident case? There are no hard and fast rules, but usually a small case involves an accident with no damage, or little damage to the vehicle and the treatment for any injury lasts no more than a few weeks. In a small case, the medical bills usually will not exceed a few thousand dollars and the injuries will not be permanent. These are cases that can often be settled without the assistance of a lawyer. In my practice, I tell clients that it may not be cost effective to use an attorney for small case because most of the recovery may go to pay the attorney. Someone may have just as good a chance of recovering a settlement near or equal to one that an attorney could get in a small case. Consumers may be well served by handling the case on their own without an attorney. But even if someone has small case, this book can help in understanding the issues which must be considered. There are some considerations consumers should be aware of before simply accepting an offer from an insurance company.

First, in accepting an offer to settle an injury claim the consumer is assuming they know clearly the nature and extent of their injuries and whether any further medical treatment may be necessary. Accepting the insurance company's offer will require providing a release. As mentioned before, the purpose of a release is to forever bar any further payment, even should the injured party's medical condition become worse or be far more serious than originally believed by them at the time the release was signed. Therefore, consumers must be absolutely certain they will not require further medical care. The amount received must fully compensate them for physical and emotional pain, suffering, scarring, disfigurement, emotional distress and loss of the enjoyment of life, as well as any out-of-pocket expenses incurred. They must be confident the amount will cover expenses likely to be incurred in the future as a direct result of treatment related to the injuries received in the accident.

Second, many general releases prepared by insurance companies are broadly worded. They include language releasing, not only the insurance company and party directly involved, but other potential parties whether named in the release or not. Signing such a broadly worded general release has the potential of unintentionally releasing claims against the injured party's uninsured/underinsured (UM/UIM) motorist carrier, as well as potential claims, such as for medical malpractice resulting from treatment received in the accident.

Additionally, in cases involving more significant damages, particularly when there is a relatively small bodily injury policy covering the defendant, consumers sometimes attempt to avoid hiring a lawyer and work out a settlement with the defendant's insurance company accepting their policy limits. Often they do this with the intention of seeking further compensation for their injury from their own UM/UIM policy. This has the potential for actually preventing them from being able to seek such damages. Florida statutes require that notice be given to the UM/UIM motorist carrier before settling with the at-fault party and giving them a release of liability. The injured party must obtain the written consent of their own UM/UIM carrier before such a settlement occurs in order to preserve their right to seek further damages under their own policy of insurance. The failure to obtain such written consent may result in the UM/UIM carrier claiming prejudice against their interest and denying coverage altogether.

Finally, most consumers have virtually no experience in evaluating what an injury claim is worth. They should be very wary of relying on any representations of value argued by the opposing claims adjuster. That adjuster's one goal is to settle it for as little money as possible. They are trained in this process and are evaluated constantly by their company. Consequently, a consumer may feel comfortable negotiating a small case, as I've discussed above, howeve they should be very careful about undertaking the evaluation and negotiation of any accident with more significant injuries.


About the author
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Attorney James W. Dodson is a Clearwater, Florida personal injury trial lawyer with over 20 years experience representing clients in all types of injury claims including vehicle accidents, fall cases and wrongful death. He is the author of three books offered FREE to consumers as a guide to dealing with accidents and insurance. Visit his website at JWDodsonLaw.com for FREE copies of these books, other articles, videos, news and commentary.

Hurt on the Job?

Worker’s Compensation protects businesses if an employee is hurt on the job. In most instances if an employee is injured at work, the employer is responsible for paying medical expenses, temporary weekly compensation benefits, and compensation for permanent impairment. In most situations, Workers Compensation is the exclusive legal remedy for the employee. In the event of a work related injury, whether driving to a meeting, a slip and fall, sprained back, etc., the assistance of an experienced Worker’s Compensation attorney can help you get the benefits and financial compensation you are entitled to.

Worker’s Compensation attorneys are an important and critical investment for job related injury claims, for both employers and employees. For employers, a lawyer can help insure that the claim is legitimate and that fair compensation is given. For employes, an experienced worker’s compensation lawyer can help get the maximum benefits and financial compensation the employee is entitled to. The laws involving Worker's Compensation can be complicated and difficult to interpret, so it is important to find an attorney that you feel can give you what you need, i.e. legal advise, a shoulder to lean on, someone who cares about the outcome of your case, paying attention to detail, high level of dedication, years of experience, etc. Decide the qualities that are important to you.

The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Disability Compensation Benefits for Injured Workers*

Workers’ compensation benefits are paid to a worker who has a job-related injury or illness. These benefits may be paid by federal or state workers’ compensation agencies, employers or by insurance companies on behalf of employers.

Disability payments from private sources, such as private pension or insurance benefits, do not affect one’s social security disability benefits.

But workers’ compensation and other public disability benefits may reduce your social security benefits. Other public disability payments that may affect your Social Security benefit are those paid by a federal, state or local government and are for disabling medical conditions that are not job-related.

Some of these are civil service disability benefits, military disability benefits, state temporary disability benefits and state or local government retirement benefits that are all based on disability.

Some public benefits do not affect or reduce your social security disability benefits.

They are:

• Veterans Administration benefits

• State and local government benefits, if Social Security taxes were deducted from your earnings

• Supplemental Security Income (SSI)

On the other hand, injured workers are also entitled to certain benefits under the workers’ compensation law. Here are the types of workers disability compensation:

• Temporary Total Disability - This benefit is payable when the injured worker is unable to work during a period when he/she is under active medical care and has not yet reached what is called “maximum medical improvement”.

In most states, compensation is paid at two-thirds of the employee's average weekly wage, not to exceed statutory weekly maximums above which no worker is entitled to compensation. It is common worker’s temporary total disability weekly benefit to be capped by these statutory compensation limits.

• Temporary Partial Disability - A worker may be eligible for temporary partial disability compensation when he or she is able to do some work but is still recuperating from the effects of the injury, and is, thus, temporarily limited in the amount or type of work which can be performed compared to the pre-injury work.

• Permanent Partial Disability - Compensation is awarded for certain types of permanent conditions which do not cause the worker to be totally unable to work.

• Permanent Total Disability - In order to receive this type of compensation, the employee must prove that he is unable to return to work in any capacity, and that this is a permanent problem.

On the other hand, there are rulings in many states to the effect that a worker, who can perform only occasional, sporadic or undependable work, may still be deemed to be permanently totally disabled. Frequently, states’ workers compensation law permits lawyers to offer evidence of a workers age, education, training and experience in seeking to prove that the worker is incapable of substantial gainful employment.

• Disfigurement/Mutilation - A states’ workers compensation law may permit the employee to be compensated for disfigurement or scarring, frequently in the absence of any actual impairment, and sometimes in addition to actual impairment.

Disabled workers and employees are entitled to a number of benefits under the law. To know more information about how these benefits may be applicable to you as a disabled employee, you need to consult a disability compensation lawyer who is knowledgeable with these issues.

*Written By:
Manuel Salvacion, website located at http://www.socialsecuritylawattorney.com/Disability-Compensation-Lawyers.html .Our professional lawyers and legal staffs are is capable of providing expert assistance in your Social Security Disability problems.

*This post is listed for informational purposes only. The Metts Law Firm, LLC did not contribute to the contents or warrant the information provided. This is not intended as legal advice or the offer of legal representation. Please contact
Metts Law Firm, LLC at 803-929-0577.