Hialeah Widow Settles Lawsuit Against Doctor Who Misdiagnosed Her Husband’s Fatal Heart Attack for $362,500.00
Case points out holes in the healthcare system and sends strong message to everyone it’s OK to question their doctor
WESTON, FL — The settlement of a medical malpractice case on behalf of the widow of a Hialeah man reveals the medical system we all rely on can have serious and sometimes life-threatening holes and flaws, according to the prevailing attorney, Roy Oppenheim, a partner in Oppenheim Pilelsky, P.A. a Weston, Florida-based law firm.
“This was an unfortunate case that involved not only misdiagnosis by the physician, but also a lack of follow-up care, lack of communication, failure to make an appropriate referral, and dismissal of the patient’s complaints,” said Oppenheim. “The settlement against the physician and the medical clinic should be a warning to others that physicians are not infallible and that each patient has an absolute right to ask questions and express concerns,” he said.
The case involved treatment by Dr. Jesus Escar and Qualmed of Florida. In 2000, the man visited Dr. Escar at Qualmed of Florida, a healthcare facility in Miami-Dade, complaining of chest pain and discomfort radiating into his shoulder. The man was known to Dr. Escar and to the clinic as having high blood pressure. During an examination, an EKG was interpreted as abnormal. There was no cardiac referral made and no instructions given concerning what to do in case this was a cardiac event. The victim was simply given prescriptions for his blood pressure and heartburn and was sent home. When he and his widow tried to explain to Dr. Escar that the symptoms, particularly the shoulder pain, did not seem to them to be consistent with heartburn, their statements were completely dismissed by Dr. Escar who stated, “I’m the doctor.” The patient suffered a fatal heart attack within 72 hours.
Unfortunately for the patient, it was also July 4th weekend. “The prescription written by Dr. Escar could not be filled because the dosage was not recognizable to the pharmacist,” said Boca Raton attorney Andrew Smith, who co-counseled the case with Oppenheim. “Both the pharmacy and the victim called the doctor’s office, but due to the 4th of July weekend, the calls were not returned and the prescriptions went unfilled, further compounding the problem,” Smith said.
“This case should send a strong message to the public that it is entirely appropriate and well within a patient’s rights to question a doctor’s diagnosis and to not merely be a passive, often intimidated participant in the process,” said Oppenheim. “Doctors need to listen to their patients’ concerns and must be available for follow-up. Had my client’s husband’s concerns been taken seriously, and he received his medication in a timely manner, and had Dr. Escar been available when needed, he would probably be alive today,” he said. The case was settled in mediation for $362, 500.00.
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Houston’s parent sued over breastfeeding incident
BOCA RATON,, Fla. (June 14, 2006) Boca Raton resident Simone Bertucci filed a lawsuit this week against Houston’s parent Hillstone Restaurant Group because the manager of a local unit asked her to leave the restaurant while she was breastfeeding her infant son.
Unaware that Florida law entitles women to breastfeed in public, Bertucci and her son Marcello relocated to her car while the rest of the family stayed to finish its meal. The Bertucci’s were celebrating the 13th birthday of the family’s oldest son.
Bertucci filed the suit, in the 15th Judicial Court of Palm Beach County, largely to raise public awareness of mothers’ right to breastfeed their children in public, said her attorney, Andrew Smith. He added that he and his client had not yet decided how much in compensation they will seek, but Hillstone spokesman Glenn Viers said the suit asks for hundreds of thousands of dollars in payment.
Hillstone does not deny that the 22-year-old manager of the unit mishandled the situation. Viers called it an unfortunate incident, and said the company “sees it as an opportunity to educate our managers.” But he said that basing a lawsuit on the occurence is “absurd,” and expressed hope that the court would summarily dismiss the action as lacking substance.
Viers noted that Hillstone had issued an apology to Bertucci, along with an invitation to return to the restaurant.
The situation underscores public sensitivities about breastfeeding, as Smith acknowledged. “Apparently my client’s [breastfeeding] offended the sensibilities of another Boca Raton patron – a woman – who then complained to the manager. Apparently the manager – who was also a woman - did not know the law because she asked my client to leave,” the attorney said.
In 1993, Florida passed what was heralded by a pro-nursing group, La Leche League International, as the first comprehensive breastfeeding legislation in the United States. Today approximately 39 states have some type of legislation pertaining to breastfeeding.
Bertucci contends she was breastfeeding her child under a blanket while at the Houston’s here, but the Florida law gives a mother the right to breastfeed whether or not she is covered or even exposes her nipples. The manager was apparently also unaware of a mother’s right, covered or not.
Smith said that the issue is so divisive it has even made the news in England. “People have been calling me from all over to voice opinions. Some older women who grew up in an era when breastfeeding was not in vogue feel very strongly against it. The opinions are all over the place and very, very strong,” he said.
This is not the only controversial incident involving breastfeeding in a public setting.
Others reported situations include a woman nursing her baby inside Johnny’s Barbecue in Cullman, Ala. She alleged that an employee threw a dirty towel over the baby’s head to cover it up.
Also, a woman reportedly got into a breastfeeding dispute in a Houston Ronald McDonald House. Last year it was reported that a woman was removed from a Delta Airlines flight in Vermont because she was breastfeeding.
Smith acknowledged Hillstone’s efforts to address the situation.
“The company has admitted wrong doing and has apologized and has sent her check refunding the family’s meal for $150. But to date their position has been that their apology should suffice,” he said.
Smith added he has not heard from the company since Bertucci’s lawsuit was filed earlier this week.Viers said he had not seen a copy of the filing as of Thursday afternoon and was not familiar with its specific allegations.
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Nursing Home Arbitration May Limit Legal Alternatives
Know the Difference Between Arbitration and Mediation.
Diane Lade and H. Cruz
Sun Sentinel
November 24, 2003
It’s understandable how, even on a good day, those two legal terms are easy to confuse.
So imagine a bad day, when you are finalizing what may be a permanent stay in a nursing home for yourself or someone you love. It’s an emotional time and the paperwork seems endless.
One of the documents states that you agree to arbitration, should you have a legal dispute with the facility. You sign, thinking you have promised to try to settle your differences with the nursing home before you head to court.
But what you’ve done is waive your rights to be heard by a jury if the home seriously neglects or mistreats you or your family member, and you later decide to sue.
Attorney Andrew Smith says people frequently mix up the two terms, especially since a Florida law passed two years ago requires nursing home disputes first go through mediation.
Mediation, however, is an informal conference and doesn’t change what the parties can do in the future. “It forces the parties to sit down together, which is good, but rarely do we get cases settled in pretrial mediation,” said Smith, of Boca Raton who specializes in nursing home litigation.
Under arbitration, however, the parties must agree to what the arbitrator decides and the decision is final.
“The most fundamental right people are signing away is their right to trial by jury,” Smith said. “These cases can tug at the heartstrings.”
Consumers are increasingly likely to be faced with arbitration clauses during the admissions process. Despite 2001 laws designed to curb litigation against Florida homes, there still are a large number of lawsuits against facilities and many are looking to protect themselves.
Mary Ellen Early, legislative director for the Florida Association of Homes for the Aging, points out that those with signed arbitration agreements still can file a lawsuit, even though they won’t be entitled to a trial. Most legal nursing home disputes are settled out of court anyway, she said.
Doing research through sites like the Nursing Home Compare at www.fdhc.state.fl.us/nhcguide will help consumers pick quality facilities, Early said.
Not surprisingly, the same attorneys who go after the homes now are, in some cases, going after the arbitration clauses. So far, the results have been mixed.
In September, Smith won rulings that overturned arbitration agreements with two HCR-Manor Case facilities, one in West Palm Beach and one in Boynton Beach. The courts found the agreements were “procedural and substantively unconscionable” because, in one case, the daughter who signed for her father did not have power of attorney to do so and, in another, the elderly man signing for his wife was told arbitration was a “take it or leave it” deal.
But in a case before the Fourth District Court this year, a judge ruled the arbitration clause was valid because the document clearly stated, in bold print, that it was voluntary and the family member still had signed it.
Those struggling with decisions about nursing home care can save themselves a lot of anxiety, and maybe legal fees down the road, if they understand arbitration clauses and the regulations governing them.
For starters, a nursing home cannot deny admission to residents who refuse to sign an arbitration agreement. Guidelines require that the clause be explained and that plenty of time to read the document and to think about it be given.
The clause is a legally binding agreement, so as with all contracts, read it carefully and understand what you are signing, Smith said.
Better yet, ask for 48 hours to think about it and take the paperwork to your lawyer. Each clause is different; make sure you are not agreeing to extensive caps on damages or other provisions that would severely curtail your rights.
During the admissions process, it’s a good idea in general to “step back and take a breath for a minute,” Smith said, especially since nursing home corporations are looking for more ways to limit liability and ensure they get paid.
As we mentioned in Mature Money last year, adult children or relatives of nursing home residents sometimes are asked to sign papers guaranteeing payment of the bill. If the resident’s Medicare or insurance benefit runs out, those who signed could find themselves liable for thousands of dollars.
To cover yourself, give the home a copy of your power of attorney for their files. And when signing anything, do so as: “Mary Smith, attorney in fact for John Doe.” By signing as someone’s agent, you are not responsible for the bills.