August 31, 2007

Law Reporter: Child sees brother drown by getting sucked into irrigation canal's unscreened pipe inlet

Trevino, 4, was playing soccer with his younger brother in their backyard, which was adjacent to an irrigation district canal. The ball went into the canal and when Trevino reached for it, he fell in and was sucked into the canal's pipe inlet, which could not be seen from the surface, and drowned. His brother witnessed the death, seeing Trevino's hand reaching for help before it disappeared.

Trevino's parents and brother sued the district, Trevino v. Merced Irrigation Dist. Plaintiffs alleged that defendant failed to maintain an effective risk management program in keeping the canal system safe because it did not screen the inlet to the underground pipe system, making it a latent dangerous condition of public property. Plaintiffs also claimed negligent infliction of emotional distress.

Defendant contended that screening underground pipe inlets is not the standard in the industry, that a screen would not have made a difference in Trevino's drowning because he could not swim, and that his mother was negligent for not supervising her children.

Plaintiffs and defendant reached a settlement three days before trial.

Read the full case abstract in the September issue of the Law Reporter.

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Professional Negligence Law Reporter: Doctors claiming to be pediatricians are not always board certified in pediatrics

A study released in June found that up to 17 percent of practicing pediatricians have never been certified by the pediatrics board, and some have not even completed a medical residency in pediatrics. Lead author Gary L. Freed says physicians lacking certification are able to call themselves pediatricians because many state licensing boards do not verify the doctors’ self-reported specialties. Gary L. Freed et al., Who Claims to Be a Pediatrician?, 150 J. Pediatrics 645 (2007).

In 2006, Freed was the lead author on two studies that found that, generally, neither hospitals nor health plans require that pediatricians be board certified to receive credentialing. A majority of the hospitals claimed that it was a requirement that doctors become certified during their tenure, but many did not have a specific time limit. “Thus, it is possible that the stated requirement for board certification is never actually enforced,” the study concluded. Gary L. Freed et al., Policies and Practices Related to the Role of Board Certification and Recertification of Pediatricians in Hospital Privileging, 295 JAMA 905 (2006).

A companion study determined that 59 percent of health plans fail to ever require pediatric board certification, and the vast majority of plans that do require it grant initial credentials before certification is achieved. These actions, the authors say, “may be self-defeating to plans’ quality improvement efforts, as they negate an incentive for these physicians to become certified.” Although the authors were quick to point out that there are no definitive studies linking a lack of certification to poorer quality of care, they noted that both doctors and patients have indicated in surveys the importance of board certification in finding health care providers. Gary L. Freed et al., Use of Board Certification and Recertification of Pediatricians in Health Plan Credentialing Policies, 295 JAMA 913 (2006).

The lack of board certification is not limited to pediatrics. In June, AAJ member Roy J. Konray, of Rahway, New Jersey, reached a settlement with a doctor proclaiming himself to be a “world renowned interventional pain procedures specialist.” Konray represented the family of Stephen Cromedy, a 47-year-old who went to Dr. Sri Kantha’s clinic for routine epidural shots and died after the shots paralyzed him, resulting in quadraplegia that shut down his respiratory system.

Cromedy’s family alleged Kantha and his on-site neurologist, who is also not board certified, improperly performed the epidural procedure. It further argued that the surgery center did not have a board certified physician in charge as required by state law. Cromedy v. Kantha, N.J., Bergen Co. Super., No. L5573-05, settled June 2007.

Although the lack of certification does not necessarily prove proximate cause, Konray says the credentials “certainly have to be considered when you’re arguing the procedure wasn’t done properly.” His law partner, AAJ member Steven Greenstein, recently settled another case involving a 28-year-old patient who also died after receiving epidural shots at the clinic. The firm has a third case that is in settlement negotiations.

In a similar case, Michelle Knepper went to a doctor who told her he was board certified in plastic surgery but who was really certified in dermatology and had no formal surgical training. When he performed a liposuction on her, he allegedly removed too much fat, causing deep, disfiguring ruts and grooves and leaving some of her nerves exposed. She continues to suffer constant pain. Knepper and her husband sued both the doctor and the yellow pages publisher that advertised the doctor under the plastic surgery specialty. They alleged fraud on the part of the publisher, arguing the company routinely encouraged doctors to advertise as having qualifications they did not possess. The doctor settled, and a jury rendered a verdict for plaintiffs. Knepper v. Dex Media, Inc., 48 ATLA L. Rep. 173 (June 2005). AAJ members Gregory A. Smith, of Salem, Oregon; and Kathryn H. Clarke, of Portland, Oregon, represented the plaintiffs.

Read the full news story in the September issue of the Professional Negligence Law Reporter. For a subscription to PNLR, subscribe online or call the Membership Department, (800) 424-2727. AAJ members who subscribe are automatically enrolled in the Professional Negligence Section, which includes online access to current and back issues of the Professional Negligence Law Reporter.