Mishkind Kulwicki Law Leads the Way in Limiting the Wuerth Decision

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Mishkind Kulwicki Law Leads the Way in Limiting the Wuerth Decision

Injury lawyers in Ohio shuddered with disbelief and concern when the Supreme Court of Ohio decided National Union Fire Ins. Co. v. Wuerth (2009), 122 Ohio St.3d 594.  Prior to the Wuerth decision, injured Ohioans could bring suit against an employer, its employee or both when seeking compensation for injuries caused by the employee while acting within the course and scope of his/her employment.  However, in Wuerth, the Supreme Court seemingly reversed decades of established law in holding that a client could not sue a law firm for legal malpractice unless the client also sued the individual lawyer who represented them.  Malpractice lawyers wondered whether the Court would extend this strange new law to medical negligence cases.

We were thrust to the forefront of this issue when the Lucas County Court of Common Pleas summarily dismissed one of our cases because we had sued a physician practice group without suing the individual physicians employed by that group.  We took the issue up on appeal to the Sixth District Court of Appeals, and with the assistance of an exceptional appellate attorney, the case was reversed and, in our opinion, properly so.  Our case presented a compelling example of why Wuerth should not be extended beyond its unique facts.

In our case, a young woman presented to a hospital’s emergency department with complaints of discolored urine and pain and weakness in her legs, which are classic findings in a patient suffering from rhabdomyolysis. Rhabdomyolysis is a condition in which skeletal muscle (rhabdomyo) tissue breaks down rapidly (lysis) as a result of damage to the muscle. There are many causes of rhabdomyolysis, including nutritional deficiencies, traumatic injury, infection and other underlying diseases. The treatment for rhabdomyolysis is twofold: (1) supportive care, including giving fluid and managing renal complications; and (2) treating the underlying cause of the rhabdomyolysis.

At the time of the ER admission, the patient was experiencing profound nutritional deficiencies related to recent bariatric surgery. These are reflected in lab values and the history of poor nutritional intake that she gave to hospital personnel. The patient also provided emergency room personnel with a card indicating that she had recently undergone gastric bypass surgery for weight loss reasons. The card states the following: “

[The patient] has had gastric-bypass surgery. It is critical that you call me before performing any gastrointestinal examination or administering any medication.”

Emergency room personnel determined that the patient’s condition required further investigation and treatment, so they admitted her to the medical service of an internal medicine group. After her admission to this medical group’s service, she was seen by three different internists, all of whom were employed by the group.

The group’s physicians who provided care are all general medical specialists who provide in-hospital care as a routine part of their practice. None had previously been her physician but assumed that responsibility through an arrangement with her regular primary care physician who does not provide in-hospital care. In accepting responsibility for the patient’s care, these physicians became her “attending physician.” The attending physician has certain responsibilities that are clearly defined by the hospital’s staff bylaws. These include ultimate responsibility for the patient’s care and treatment, the duty to determine whether the hospital offered the services needed by the patient, the duty to transfer to a higher level care hospital if necessary, and the duty to obtain appropriate consultations.

During the course of the admission, the group failed to recognize the classic symptoms of rhabdomyolysis, thereby causing a delay in its recognition and treatment. Further, they missed the notification card recommending contact with the patient’s bariatric surgeon, so no one gained insight as to her nutritional needs and deficits and how that might impact their treatment of her rhabdomyolysis.

As the admission proceeded, the group neglected to determine the cause of her rhabdomyolysis. In doing so, they ignored the bariatric surgeon’s card, a dietary consultant’s note recommending nutritional support and lab work that indicated that the patient was severely malnourished. The group also failed to transfer her to a hospital that offered a higher-level of care or to continue the investigation into the cause of the condition.  After a week of neglect, this young woman, who was seeking a fresh start on life through weight loss surgery, died.  Sadly, her rhabdomyolysis was caused by bariatric surgery-related nutritional deficits that were easily and quickly correctable with appropriate nutrition.

With our recent decision, injured Ohioans can continue to seek compensation for medical malpractice claims caused by the combined negligence of a group of physicians.

People interested in learning more about our firm’s legal services, including medical malpractice in Ohio, may ask questions or send us information about a particular case by phone or email. There is no charge for contacting us regarding your inquiry. A member of our medical-legal team will respond within 24 hours.

By David Kulwicki|2019-03-18T22:03:03+00:00July 19th, 2012|For Attorneys|Comments Off on Mishkind Kulwicki Law Leads the Way in Limiting the Wuerth Decision

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