Leading Medical Facility Offers Unprecedented Apology, Settlement; More

Wayne J. Guglielmo, MA

September 02, 2020

Facility Vows to Do Better at Preventing Future Infections

In what the plaintiffs' attorney in the case called an "extraordinary" admission of responsibility, the Geisinger Medical Center, in Danville, Pennsylvania, reached a settlement last month with families whose infants had either died or been severely injured as the result of a bacterial outbreak at the facility, according to a story in the Times Leader, which serves the northeast portion of the state.

Between July and September of last year, three babies passed away in Geisinger's neonatal intensive care unit after a flare-up of Pseudomonas aeruginosa, an opportunistic, multidrug-resistant infection that can also arise in otherwise healthy children. Five additional children were also infected but survived, although one of them suffered a permanent brain injury.

In October, several of the families sued Geisinger, around the time that it acknowledged the problem publicly. They faulted the facility for not only permitting the infection to spread but also for concealing the outbreak for several months, thereby placing patients at risk.

Abel Cepeda, for one, was born at the hospital in late September but died less than a week later. His parents, Luis David Cepeda and Zuleyka Rodriguez, were part of the multiparty suit.

"Had Geisinger and its medical staff prioritized the health and safety of its most fragile patients over its reputation and financial interests, as the standard of care required, Abel Cepeda would not have suffered the catastrophic injuries he did and he would not have died," said Matt Casey, the attorney representing the families.

For its part, Geisinger issued an apology to the families and vowed to do better in the future.

"The loss of a child is tragic, and this settlement can never replace these young children," said Geisinger President and CEO Jaewon Ryu, MD, JD, an emergency medicine specialist and former corporate healthcare attorney. "However, we believe we have taken the steps necessary to prevent future infections and spare other families from this loss."

The amount of the settlement between the parties hasn't been disclosed.

Fed's Settlement Brings Injured-Baby Case to a Close

In another birth-injury story, the federal government has settled its part in a medical malpractice suit brought on behalf of a child born with severe brain injuries at what was then Trinity Hospital, in Augusta, Georgia, as repored in The Augusta Chronicle.

In early 2016, Sherecia Willis, an active-duty member of the Army, entered Trinity Hospital to give birth to C.W., as court documents refer to her baby. Trinity — which in March 2017 was acquired by University Health Care System and renamed University Hospital Summerville — was at the time associated with Dwight D. Eisenhower Army Medical Center, in nearby Fort Gordon, which had contracted with the private hospital to provide obstetric services. (Those services are now provided by Doctors Hospital of Augusta.)

In her multiparty suit, which included both government and nongovernment defendants, Willis claimed that 2 hours had elapsed between the time of her first examination and the birth of her baby. Toward the end of this period, she said, her baby was in distress, but it allegedly took her neonatologist 22 minutes to change into his scrubs before proceeding with the delivery.

In January, the nongovernment defendants — which included the treating physician and Augusta Physician Services — settled for $3.55 million.

The federal government paid $6.67 million, bringing the total settlement to a bit more than $10.2 million.

Under the agreement, none of the defendants admitted liability for the child's injuries.

MICRA Ballot Initiative, Redux

Last month, the postponed initiative to raise California's decades-old medical malpractice cap became the first measure to qualify for the 2022 state ballot, as a story posted on the website Ballotpedia.org reports.

Originally, the Fairness for Injured Patients Act, as the initiative is known, was slated for the 2020 state ballot. After the outbreak of the COVID-19 pandemic, however, supporters elected to delay filing the necessary signatures. As one leading advocate said at the time: "No one really knows how [the pandemic] will affect the November elections.... The medical negligence cap hasn't changed in 45 years. We didn't want to blow our chance."

In order to place the measure on the 2022 ballot, the coalition supporting it filed slightly more than 910,000 signatures with the secretary of state's office. Three quarters of them — or approximately 688,000 signatures — were deemed to be valid, more than enough to qualify.

If it succeeds, the measure would immediately raise the existing $250,000 ceiling on the basis of changes in the rate of inflation since 1975, the year the Medical Injury Compensation Reform Act (MICRA) was passed and was signed into law by then Governor Jerry Brown.

Had the Fairness act passed in 2020, the new inflation-adjusted limit would have risen to roughly $1.2 million; thereafter, it would have been adjusted annually to keep pace with inflation. (A similar calculation will almost surely be made now that the measure is slated for the 2022 ballot.) Under the new act, moreover, judges and juries would be permitted to award damages above the established limits in cases involving catastrophic injuries.

To date, supporters have raised nearly $5 million to champion the ballot initiative, including a donation of $3.65 million from Nicholas Rowley, a leading California trial lawyer. Opponents of the measure — registered under the name Californians to Protect Patients and Contain Health Care Costs — have conducted an even more successful fund-raising campaign. They have raised $18.3 million, including $9.8 million from The Doctors Company, the largest physician-owned medical liability insurer in the United States.

Parties Still Squabbling Over Liability Shield

At press time, Democrats and Republicans were still haggling over the size and scope of a second COVID-19 relief package. In addition to aid to the states and the amount of enhanced unemployment benefits, among other items, the two sides have clashed over the GOP's plan to shield businesses, including hospitals and physician groups, from lawsuits related to COVID-19, as reported by The Hill and many other news sources.

Under the Republican proposal, businesses would be protected from liability for workers who contract the virus on the job unless those businesses were "grossly negligent or engage in intentional misbehavior," as Senate Majority Leader Mitch McConnell (R-KY) pointed out in an interview. McConnell and other supporters of the proposal say it's necessary to encourage reluctant businesses to reopen, thereby jump-starting the economy.

But Democrats argue that the liability protections could force personnel to work in unsafe situations and would jeopardize their day in court should they get sick.

Democrats also worry that the protections are overly broad. "It favors corporations, we know that," said Senate Minority Leader Chuck Schumer (D-NY). He added that the protections are "a radical change of all liability law" because they cover all medical malpractice — COVID-related or not — until at least 2024, when the moratorium would expire.

McConnell has vowed to hold up legislation that doesn't include adequate liability protections. In their present form, Democrats say, those protections are a nonstarter.

The content contained in this article is for informational purposes only and does not constitute legal advice. Reliance on any information provided in this article is solely at your own risk.

Wayne J. Guglielmo, MA, is an independent journalist based in Mahwah, New Jersey.

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