Jury finds doctor responsible for 2-year-old boy's death

Posted: Friday, July 2, 2004

CROWN POINT -- A Lake Superior Court jury awarded Pat and Cyndi Sawaska, of Dyer, $3.5 million Thursday for the wrongful death of their 2-year-old son more than four years ago.

Merrillville attorney Barry Rooth said the couple's son Kyle died May 19, 2000, after going into shock at St. Margaret Mercy Healthcare Center in Hammond. He was admitted to the pediatric intensive care unit the same day for treatment of vomiting and dehydration.

Rooth said the pediatrician attending Kyle consulted with Dr. Gloria Buentello, a pediatric gastroenterologist, on his treatment. According to Rooth, Buentello testified during the trial that although she was concerned Kyle had received several enemas that could have caused an electrolyte disturbance, she failed to order new tests to determine if that was the case. Instead, she relied on tests from the previous day. Rooth argued if Buentello hadn't failed to order new tests, the problem with Kyle's potassium would have been diagnosed and easily corrected.

The jury found the Sawaskas suffered damages totaling $5 million and Buentello was 70 percent responsible for Kyle's death.

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By Barry D. Rooth | Posted: Tuesday, December 29, 2009:

The recent apprehension of Dr. Mark Weinberger has generated enormous local and national attention, with the media revisiting the intriguing circumstances of his disappearance and reporting on the details of his accidental capture in a tent at the foot of an Italian glacier.

These headlines appear at a time when there is an ongoing national debate about reforms to fix the problems inherent in our health care system.

Of course, no discussion of health care can occur without the opponents of reform focusing on the evils of a tort system that allows patients and their lawyers to sue doctors for medical negligence.

The "tort-reformers" argue that it's these lawsuits that add billions of dollars to the nation's medical costs as doctors perform otherwise unnecessary tests to defend against potential malpractice claims.

We are also told that frivolous lawsuits filed by greedy plaintiff's lawyers threaten the doctors' ability to practice on account of the exorbitant costs of lottery-type verdicts and increased malpractice insurance premiums.

I think few Hoosiers understand the extensive limitations already imposed upon Indiana patients and malpractice actions.

In the 1970s, under the leadership of Gov. Otis Bowen, a doctor, our Legislature passed the Indiana Medical Malpractice Act, a comprehensive overhaul of the medical malpractice system that imposed extensive and unprecedented restrictions upon the filing and prosecution of a medical malpractice claim.

The statute provides, among other things, that every case under the act must be submitted to a panel composed of doctors charged with reviewing the conduct of their peers. Only about 19 percent of the panels find in favor of the patient. Attorney's fees are limited by the act, a doctor will never be required to pay the injured patient more than $250,000 (before 1999, the limit was $100,000), and the patient's recovery is capped.

While Indiana already has the most restrictive medical malpractice laws in the country, we now hear that the new health care reforms will further limit a patient's recovery of noneconomic damages to $250,000. If passed, the law will now make it possible for the owner of a prized racehorse to collect more for the horse's death than the parents of a child killed by medical negligence.

What neither the Indiana act nor the proposed reforms do, however, is find a way to effectively identify and protect the public against doctors who practice well beyond acceptable boundaries. If one subscribes to the "80/20 Rule," in which 20 percent of physicians are said to be responsible for 80 percent of the medical negligence claims, then identifying methods for improving quality of care for the 20 percent will go a long way to cutting back on malpractice claims and even putting attorneys like me out of business.

There should be no doubt that medical errors are a real societal problem. According to a July 26, 2000, article from the Journal of the American Medical Association, "44,000 and perhaps as many as 98,000 hospitalized Americans die every year from medical errors." While these are significant numbers, they do not account for non-hospital deaths from medical errors.

I cite these studies not to impugn the overwhelming majority of competent, caring and often brilliant physicians practicing in our community. I do it as a reminder that the medical community can do more to police itself.

All of which brings us to the famous Dr. Weinberger and the lessons that can be learned from his spectacular downfall. While he meticulously crafted a practice that minimized his interaction with his peers, he was not entirely sequestered. Many in the medical community knew of his alleged aberrant and negligent practices, but very few saw fit to take steps to bring his actions to light.

In January 2004, our office represented two patients in lawsuits filed against Dr. Weinberger. By the summer of 2004, a couple of months before he fled the country, our law firm was investigating 18 additional lawsuits.

I say this to remind those critical of the tort system that medical negligence claims do have utility beyond enraging physicians and the political right. In addition to providing justice for those harmed by negligence, they often expose medical practices and behavior that no reasonable person can defend, thus making our communities safer for those in need of medical care.

Barry D. Rooth is a lawyer with Merrillville-based Theodoros & Rooth, P.C.

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This ban is meant to tackle the issue of distractions in truck drivers, which is obviously a far greater concern than texting by motorists. While a distracted motorist is at a serious risk of an accident, the risks are greatly magnified when you substitute the motorist with a tractor trailer driver operating a massive rig that can weigh up to 80,000 pounds.

The move is part of a greater initiative by the Department of Transportation to cut down the risks of distracted driving. Transportation Secretary Ray LaHood has made clear his commitment to the issue. Last year, Secretary LaHood convened a Distracted Driving Summit after which President Obama signed an executive order banning all employers of the federal government from using government-issue cell phones while driving government-issued vehicles.

As Indiana truck accident lawyers however, we would have appreciated the ban more if it included a ban on the use of computers in the trailer cab. These computers are frequently used by truckers to keep in touch with trucking companies, receive orders and for other activities. Drivers are forbidden from using these computers while driving. However, the fact is that many truckers either don’t pull over before using the computer, or are not able to do so on a busy highway. The risk of distractions from these computers may be several times more than that from cell phones. Fortunately, Secretary LaHood agrees, and has confirmed his interest in dealing with such distractions too.

The Indiana truck accident attorneys at Theodoros & Rooth represent injured victims of truck, tractor trailer and 18-wheeler accidents in Lake County and around the state of Indiana.

New equipment like linear accelerators now allow oncologists to target radiation only at the cancerous region, leaving the surrounding healthy cells unaffected. This has dramatically changed the face of radiation therapy, and doctors are now able to treat even those cancer patients for who radiation therapy was not recommended earlier. However, the new equipment has come with a shocking lack of technical safeguards that prevent over radiation and other risks.

Some of these systems have only the most basic safeguards in place to warn technicians and staff that the equipment has not been configured correctly. If technicians miss these warnings - and they have on more than one occasion - then there is nothing to stop the patient from receiving dangerously doses of high radiation that could seriously injure or kill him. While these new machines have altered the quality of treatment that patients receive, they have been misused on more than one occasion by improperly trained staff, and faulty operations and processes. Besides, the machines come with few safety devices that can prevent errors.

The New York Times report focuses on hospitals in New York that have been the scene of an alarming number of radiation errors. Last year however, officials at the renowned Cedars Sinai Medical Center in Los Angeles admitted that dozens of patients had been exposed to high levels of radiation from a CT scanner that was not configured properly.

Making matters worse for patients who are injured by such radiation errors is the factor that there is little in-depth knowledge of radiation injuries. Doctors are only aware of the wounds, nausea and other basic conditions that result from over radiation, but there is little knowledge of the severe injuries that can result from over radiation or other serious errors.

The Indiana medical malpractice lawyers at Theodoros & Rooth represent victims injured by radiation errors and other kinds of medical errors, in the Lake County area and around the state of Indiana

There is more bad news for Toyota. Consumer Reports magazine has withdrawn its recommendations for 8 Toyota vehicles that have been linked to the jammed acceleration pedals. Consumer Reports says that the massive recalls of the vehicles are behind its decision to withdraw its recommendations. According to Consumer Reports, although the episodes of sudden acceleration are rare, it was withdrawing its recommendations because thus far, Toyota has not been able to find a solution to the problem.

The Consumer Reports decision is the latest drawback for the automaker in a series, which began with a devastating accident in California that was later found linked to a jammed accelerator. Other Toyota owners had reported earlier that their cars began to accelerate suddenly without any input from the driver. But, there had been no major injuries or accidents related to such acceleration, until August when the California crash made headlines internationally.

All this has caused great concern to Toyota owners in Indiana, many of who have no choice but to continue driving these cars, while the automaker grapples with this problem. It could be weeks or months before Toyota finds a solution to the acceleration problem, and until then, owners of the vehicles that have been included in the recall and Indiana product liability attorneys will have to wait patiently for answers.

The Indiana product liability lawyers at Theodoros and Rooth represent victims injured by the use of defective automobiles and other products.

The New Year seems to have begun with a terrible start for the family of this young woman who was just 32 years old. The woman also seems to have been on duty at the time of the hospital. She was working for a nursing center called Regency Place of Castleton. At the time of the crash, she was on her way to pick up something for a patient when she was hit by the car. The litigation in this matter is likely to be complicated because Workers’ Compensation laws could also apply.

This accident is yet another reminder of how careful motorists should be driving in the kind of bad weather we have seen over the past few weeks. Driving on slick streets requires extra attention to the road. Driving at high speeds can place you at risk of hydroplaning or sliding off a road when you apply the brakes. With more snow-covered days expected, we would advise motorists to above all drive slowly. Stay buckled up, and look out for pedestrians, bicyclists, motorcyclists and other people who may be in your blind spots.

The Indiana personal injury lawyers at Theodoros & Rooth represent injured victims of auto accidents in and around the state of Indiana.

Last week, the National Safety Council released new data which shows that 28 percent of all auto accidents are caused by motorists using cell phones while driving. The NSC estimates that up to 1.4 million accidents are caused by motorists having conversations on their cell phones while at the wheel. Approximately 200,000 accidents are caused by motorists texting while driving.

Also last week, the Department of Transportation and the National Safety Council announced the launch of a new group dedicating to supporting the families of victims of accidents caused by distracted driving. The group is called FocusDriven, and hopes to galvanized public opinion and pressure state legislatures in the same manner that Mothers Against Drunk Driving has done for intoxicated driving. FocusDriven plans to increase pressure on states to enact their own legislation to minimize distracted driving

In an ideal world, we would not need a law that tells us to switch off anything that takes our attention away from the road. However, our experience and practice as Indiana auto accident lawyers tells us that awareness and education activities are never enough to tackle any safety problem. There must be strong laws that ban unsafe practices, and strict enforcement of these laws.

Many of these features are now also coming with more affordably priced models. You shouldn’t have to be wealthy to able to afford a car that protects you in an accident. Some of the better features that we hope become more and more widely used in cars in Indiana are:

1. Forward Collision Systems
These are built to detect objects or vehicles in front of your vehicle, and prevent collisions.

2. Face Recognition Monitors
These futuristic devices work by taking a picture of your head while you are driving and monitoring for sudden jerky movements, like when you begin to nod off. As soon as the system notices such signs, it sounds a warning. Considering the lack of attention paid by Indiana’s lawmakers to the problem of drowsy driving, this system may be the next best thing to preventing the serious accidents that result from fatigued driving

3. Post Collision Systems
These do a number of things in the seconds after an accident - shutting off the fuel pump, unlocking the doors and turning the car’s hazard lights on. The seconds after an accident can set off complications like a fire, and this system prevents such adverse and dangerous events.

4. Active Head Restraints
These protect the head in the event of an accident, by adding extra padding around the skull.

The increased use of seatbelts and air bag systems has been credited with contributing to the decline in the national highway fatality rate. With more advanced features on their way or already here, Indiana auto accident lawyers will be hoping for a further decrease in those rates.

Weinberger is the center of hundreds of malpractice lawsuits filed by patients who claim they underwent needless surgeries performed by Weinberger. Dr Weinberger’s haphazard operations did nothing to cure patient problems, and, in fact, left most of them seriously injured. In 2006, a federal grand jury in Hammond indicted Weinberger of 22 counts of fraudulent over billing procedures that were not necessary or never performed. Five years ago, Weinberger disappeared while he was vacationing in Europe.

He was arrested on the 15th of December on a mountain top near the France-Italy border. The authorities had been tipped off by a mountain guide. Weinberger had been living in a tent, and guides had been curious because it was unusual to see people camping in the freezing northern Italian mountainside this time of the year.

Weinberger’s dramatics didn’t end with his arrest. While he was being arrested, he managed to stab himself in the neck. However, his wounds were not life threatening. Since then, an Italian court has approved an extradition request for Weinberger. He has 300 medical malpractice claims against him. These patients will now have some hope of receiving justice for their medical injuries.

Statistics for 2008 show that there were 680 auto accident fatalities in Indiana this year. Governor Daniels compares that to the 670 deaths in that occurred in Indiana in 1925. Considering that there are at least 8 times more automobiles on the highway now than in 1925, it means that motorists in Indiana are 8 times safer now than they were then.

There is no doubt that these statistics are encouraging. Much of it has had to do with increased enforcement by Indiana state police. There have been more numbers of motorists cited, arrested and warned for traffic violations. In fact, 2008 marks the first time that police have issued approximately 1 million citations, arrests and warnings. Voluntary organizations like Mothers Against Drunk Driving have also done their bit to increase awareness about the dangers of intoxicated driving.

However, as far as Indiana personal injury lawyers are concerned, 680 deaths is 680 deaths far too many. We still don’t have a comprehensive cell phone and texting ban in place which could bring down those fatality rates further. Besides, we also have to take into consideration the fact that 2008 was a dismal economic year, with high unemployment and financial worries keeping Hoosiers home instead of out driving on the streets.

None of this is to take away from the accomplishments of state police who have done a commendable job of cracking down on intoxicated driving. But it would be dangerous if we choose to sit back and rest on these accomplishments.

Under the new rule, newly registered commercial motor carriers must strictly comply with everyone of the 16 essential regulations set down by the FMCSA in order to pass their safety audit. Failure to do so will lead to holding back of permanent registration, until the deficiencies are corrected within the time period specified by the agency. Failure to comply with even one of these regulations will now make it harder for new carriers to get permanent registration. These regulations are linked to important safety aspects, like random drug alcohol testing that commercial motor carrier operators are expected to conduct to screen employees, failure to maintain trucks and repair any mechanical problems, as well as failure to use qualified and physically fit drivers.

Following these 16 essential safety regulations are not the only way to prevent truck and bus accidents. There are other factors that may be involved in truck accidents like negligence of the trucker, driver fatigue and roadway conditions. However, these regulations cover some of the most important safety issues that are frequently a factor in commercial trucking accidents. As Indiana truck accident attorneys, we have been very concerned about the poor oversight of newly registered truck companies. These new carriers often manage to sail through initial safety audits even in the presence of violations. The new rule makes it harder to take even a single regulation lightly, ensuring that only the most compliant carriers receive permanent registration. This will prevent the presence of unsafe carriers, and truckers on Indiana’s highways and roads, and therefore prevent accidents.

The recall is the second largest in US history and involves more than 50 million shades and roll up blinds sold at Wal-Mart, Pottery Barn and several of the country’s biggest retailers. The CPSC and the Window Coverings Safety Council is recommending that families with children should avoid rollup blinds and window shades, and have cordless window shades instead. The CPSC is encouraging parents to either get cordless coverings, or ask for a free repair kit to secure the existing coverings.

It’s important that parents be alert to the possible hazards from dangling cords. We don’t think of window shades and Venetian blinds as being dangerous, but there have been far too many instances of children getting entangled in the cords, and being strangled to death. It is clear that whatever existing safety standards are being used to manufacture these shades and blinds, they are simply not strong enough to protect children. The CPSC chairwoman Inez Tenenbaum has confirmed as much. She says her agency is working with the Window Coverings Safety Council to develop stronger standards for these products.

The CPSC is encouraging parents to have a close look at all shades and blinds at home, to ensure that there are no cords accessible on the front, side or back of the window covering
Place cribs and other baby furniture away from windows, so children can’t access the cords
Tuck away loose cords, so children can’t reach them. If your shades come with looped chains or cords, install tension devices to stretch the cord and reduce the strangulation hazard.

The Indiana product liability lawyers at Theodoros & Rooth represent victims injured by defective products including, toys, cribs, car seats and other children’s products, auto defects, and unsafe pharmaceutical drugs and medical devices. .

Indiana state police this year are participating in enhanced enforcement activities. The holiday enforcement program is called Operation CARE (Combined Accident Reduction Effort). State police have stepped up their enforcement activities, and are cracking down especially hard on speeding motorists, and drunk drivers. Also, if you choose to ride or drive a car without bothering to buckle up, there is a high change you will be caught and fined.

Besides Indiana police troopers, there are also commercial motor vehicle inspectors out during the Christmas holiday to enforce regulations. Inspectors will conduct spot checks of commercial trucks to make sure that no one is injured because of malfunctioning trucks.

As Indiana auto accident lawyers, we know the kind of crazy driving that can set in when motorists are buzzed about the holidays. The holidays can be safe for all if we all just remember a few simple points:

• Never drink and drive.
• If you plan to drink at a party, plan how you will get home before the first drink, and not after the tenth when you can barely see straight. Make arrangements to sleep over at a friend’s place, have someone drive you home, or take public transportation.
• Always wear seatbelts while driving or riding in a car.
• Drive within speed limits.
• Remember that there are going to be hundreds of the motorists on the road you are traveling on, and not all of them will be fit to drive.

State revenues have decreased by $600 million since the financial year began in July, compared to 2008. While Governor Mitch Daniels says that public safety is one of his biggest priorities, the fact is that the state has chosen to slash its expenses by firing motor carrier inspectors, who are so vital to trucking safety. Truck inspectors’ responsibilities include stopping trucks on highways and looking for violations of state laws.

The latest truck and bus inspector layoffs are the most recent in a series of layoffs announced by the administration to deal with its financial woes. As of now, Indiana state police insists that truck safety will not be impacted, and that that the 41 inspectors who remain, will continue the work of motor vehicle inspections. But, truck and school bus safety groups are already expressing concerns that the layoffs could impact safety.

It’s too early to say if this reduced inspector force will increase the number of unsafe and dangerous rigs on our highways. However, Indiana truck accident lawyers often see that limited staffing resources usually translates into poor oversight and increased number of violations.

As Indiana truck accident attorneys, wish the state administration had focused its cost cutting measures in some other areas than commercial motor carrier safety. The accidents that result from fatigued or drunk truckers and poorly maintained rigs may ultimately be a bigger financial burden than the state’s current fiscal issues.