As Med Mal Stroke Trial Opens, Attorneys Spar Over Alleged Alterations to Medical Documents

Posted by Arlin Crisco on Apr 20, 2015 7:22:49 PM

Grant Kuvin details what he claims were alterations to the medical records of his client, Jorjina Araujo, after her 2011 hysterectomy. Araujo is suing Dr. Tatiana Eisner and Heidi Aleman-Ortega, claiming they failed to take action on a tell-tale warning sign of an embolism that led her to suffer a stroke. 


Fort Lauderdale, FL—The cause of the stroke that blinded Jorjina Araujo, and whether vital sign measurements had been altered by medical staff, took center stage as trial opened Friday in Araujo’s suit against the anesthesia team she claims committed malpractice during her hysterectomy. Araujo v. Eisner, CACE13012999.

Click Here FREE Florida Trial Video Samples “There are three important things to keep a patient asleep, safe, and stable,” Morgan & Morgan’s Grant Kuvin, representing Araujo, told jurors in openings Friday. “This anesthetic team broke all three of those rules.”

Araujo is suing anesthesiologist Dr. Tatiana Eisner and nurse-anesthetist Heidi Aleman-Ortega, claiming they failed to notice tell-tale warning signs of an air embolism, or air entering Araujo’s veins during her 2011 hysterectomy. Araujo contends she suffered a stroke from the embolism, which led to her left-side blindness and the inability for her brain to understand what she is seeing.  

A key point of dispute in the case is whether Araujo’s end-tidal C02 measurement during surgery had dropped, signaling that air had entered her veins. End-tidal C02, or ETCO2, is the measurement of the carbon dioxide remaining in a person’s lungs after an exhale, with a lower number indicating potential pulmonary problems. During openings, Kuvin told the jury that Araujo’s ETC02 fell to a critically low 22 as the embolism made its way through to her brain, but that the defendants failed to act.   

Kuvin argued that evidence, including testimony from a documents examiner, would prove an Ortega's ETCO2 entry during Araujo's surgery had been altered from a 22 to a 32. “You don’t need to be an anesthesiologist and you don’t need to be a (certified registered nurse anesthetist) to appreciate the addition on that number,” Kuvin said.

Kuvin contended that the alleged change in the entry did not necessarily signal any ill intent. Instead, he argued that Ortega may have changed the number after surgery in the mistaken belief that the reading was inaccurate because there had been no other symptoms of an air embolism. “But the fact is, and the medicine will show… you can have this event happen without the phenomenon of (other symptoms of a venous air embolism) happening,” Kuvin said.

The defense countered that their own documents examiner and copies of Araujo's surgical records would show Araujo’s ETCO2 entry was never altered. Instead, the defense contends the unusual looking entry was the result of poor handwriting under the stress of an operating room environment. “Minute by minute, second by second, she’s evaluating this patient, her vital signs, her responses, the oxygen levels, the medications, and she’s making notes. Boom, boom, boom, boom,” Chimpoulis, Hunter & Lynn’s Jay Chimpoulis said. “All this stuff she’s charting, as it’s going in real time, with one hand. This is not calligraphy. She’s not looking to put it on a birthday card.”

Chimpoulis acknowledged that Araujo suffered a stroke, but argued that it was caused by a blood clot for which defendants are not responsible. Chimpoulis told jurors that nothing in the medical records established that Araujo suffered a venous air embolism. “The only person who is going to say it’s a venous air embolism are the people that (Araujo’s attorneys) hired,” Chimpoulis said.  “Guess what you don’t see in those first two (post-operative) nursing notes?” Chimpoulis asked. “You don’t see any complaints of ‘I can’t see,’ when we know if that’s a venous embolism (blindness) would be immediate.”

Trial is expected to last two weeks.

Attorneys for the parties could not immediately be reached for comment. 

Arlin Crisco can be reached at acrisco@cvn.com.


Related information

Attorneys include Morgan & Morgan's Grant Kuvin and John W. Dill, representing Jorjina Araujo, and Chimpoulis, Hunter & Lynn's Jay Chimpoulis and Barbara Paige, representing Dr. Tatiana Eisner and Heidi Aldeman-Ortega. 

Read a copy of the pre-trial stipulation here. 

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Topics: Florida, araujo v. eisner

$21.5M Award to Couple in COPD Suit Against RJR Tops the Engle Progeny Review for the Week of April 12

Posted by Arlin Crisco on Apr 17, 2015 10:35:00 PM

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Alex Alvarez tells jurors in closing arguments that his client, Thomas Ryan, was misled by R.J. Reynolds claims that filtered cigarettes were safer to smoke. Jurors awarded Ryan and his wife, Bettye, $21.5 million in compensatory damages Friday afternoon in their suit against Reynolds. 


 Ryan v. R.J. Reynolds Tobacco Co. 

Jurors Friday awarded Thomas and Bettye Ryan $21.5 million in compensatory damages, with an award of punitives to come, after finding R.J. Reynolds liable for Ryan’s chronic obstructive pulmonary disease.

Watch Video from Tobacco Trials The decision followed less than four hours of deliberations and found Reynolds 65 percent liable for the COPD that the Ryans claim was caused by tobacco industry marketing that led to Ryan's nicotine addiction. Ryan smoked up to four packs of cigarettes a day for more than 40 years. He ultimately quit smoking in 1997 after being diagnosed with respiratory disease.

The jury’s compensatory award includes $16.5 million to Ryan and $5 million to his wife, Bettye. The award exceeded the $20 million in total compensatories the Ryans’ attorneys requested in closings Friday.

The verdict capped a two-week trial in which opposing counsel debated whether Ryan could reasonably have believed tobacco industry-sponsored tactics to conceal the dangers of cigarettes. During closing arguments, King & Spalding’s W. Ray Persons, representing Reynolds, told jurors that health warnings everywhere from cigarette packs to television news programs, combined with smoking's effects on Ryan's family members, outweighed any tobacco messaging he may have seen. 

Persons noted that Ryan’s father was diagnosed with smoking-related COPD in 1983, but that Ryan did not try to quit smoking until after his father’s death in 1987. "He didn’t try, didn’t make one single effort to quit (prior to 1987),” Persons said. “Full knowledge. If you don’t know by that time, there’s nothing that R.J. Reynolds can do or say that will tell you or convince you that this is a dangerous activity.”

However, The Alvarez Law Firm’s Alex Alvarez, representing the Ryans, argued that Ryan was initially misled as a teenager in the 1950s by tobacco industry marketing, then duped again by false claims that filtered cigarettes were safer to smoke. Alvarez reminded jurors that Ryan began smoking Reynolds’ Vantage filtered cigarettes, believing tobacco industry claims concerning the filters’ safety. “He switched, he thought he was doing something safer, when all of the time (Reynolds) knew it wasn’t true,” Alvarez said. “Vantage is as much, or more, deadly than any other cigarette.”

The decision in this trial follows a mistrial entered in an earlier Ryan proceeding just 15 days ago. On April 2, two Florida Supreme Court decisions found Engle progeny plaintiffs like the Ryans were not required to prove reliance on tobacco industry conduct within the state’s 12-year repose period for fraud. Those decisions overturned controlling 17th Judicial Circuit case law on the subject, prompting Judge Jack Tuter, who presided over that earlier Ryan trial, to declare a mistrial. The current Ryan trial was rescheduled with Judge John Murphy presiding.

Next week: Phase 2, to award punitives, will begin Monday morning. 


Russo v. Philip Morris

The physician that diagnosed and treated smoker Phyllis Frazier for the beginnings of the respiratory disease that ultimately led to her lung transplant testified this week about Frazier’s struggles to quit smoking as the disease progressed.

Dr. Steven Shapiro testified that Frazier resumed smoking as soon as possible after a 1991 acute respiratory attack that had rendered her physically unable to smoke. “This is common; I see thousands of patients who smoke. As (Frazier) felt better and she could breathe again, she went back to smoking,” Shapiro said.

Shapiro diagnosed Frazier, a smoker for more than 30 years, with symptoms of chronic obstructive pulmonary disease in 1991. However, Frazier did not successfully quit smoking until a year later, after several attempts using smoking cessation methods ranging from nicotine gum to patches.  

Despite quitting smoking, the disease’s effects became so serious that she underwent a lung transplant. She ultimately died in 2012 from skin cancer that spread to her brain. Her attorneys argue that drugs Frazier took to combat her body’s attempt to reject her new lungs compromised her immune system, causing the cancer to spread. Frazier’s daughter, Tina Russo, is suing Philip Morris and R.J. Reynolds, claiming the tobacco manufacturers fueled the nicotine addiction that led to Frazier's respiratory disease.  

Referring to records of Frazier’s treatment, Shapiro told jurors that, despite the disease's progression, Frazier described a “driving urge to smoke” that rendered quitting difficult.

However, the defense argues that Frazier was not interested in quitting smoking until shortly before she successfully stopped. And on cross examination Monday, Shapiro acknowledged that Frazier waited months before ultimately filling a prescription for nicotine gum that Shapiro had given her in 1991.

“If (smokers) do not want to stop, nothing I say or do will make a difference,” Shapiro said.

Next week: The case is expected to go to the jury by the end of next week.


Arlin Crisco can be reached at acrisco@cvn.com.

Our weekly review is curated from our unequaled gavel-to-gavel coverage of Florida's Engle progeny cases.

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Topics: Negligence, Products Liability, tobacco, Engle Progeny, Florida, Engle Progeny Review, Russo v. Philip Morris, Ryan v. R.J. Reynolds

In Million-Dollar Car Collision Trial, Credibility Challenge Yields Defense Verdict

Posted by Arlin Crisco on Apr 16, 2015 9:55:00 AM

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Nicholas Maniotis tells jurors that evidence does not support James Allen's claim that he suffers from "10 out of 10" pain stemming from a car accident with Maniotis' client Dale Buckner.


West Palm Beach, FL—Jurors Friday cleared Dale Buckner of the back injuries James Allen says left him in constant pain after a 2012 late-night wreck on I-95.  Allen v. Buckner, 2012CA021693.

Click Here FREE Florida Trial Video Samples The verdict concluded a four-day trial in which Allen sought more than $1 million in total damages for the disc herniation he claims he suffered when Buckner struck his car with his pickup truck.

Jurors needed less than four hours to reach their decision.

Allen’s credibility was a central issue at trial. Although Buckner acknowledged his negligence for the accident, which occurred when he ran a stop sign and struck Allen’s car, he challenged the legitimacy of Allen’s injury claims. During closing statements Friday, Buckner’s attorney, Nicholas Maniotis, of Flanagan, Maniotis & Berger, reminded jurors that Allen did not seek medical treatment for more than a month after the accident. “Who in the world doesn’t go to the doctor for 34 days if he really got an injury?” Maniotis asked the jury. “Do not outsmart your own common sense.”

Maniotis also noted that Allen's description of his pain as "10 out of 10" did not coincide with either medical imaging of his back or footage of Allen during his daily, post-accident activities. "You saw on the film he's walking and moving normally, getting in and out of cars normally," Maniotis reminded jurors. "There wasn't (anyone) with 10 out of 10 pain, or 7 out of 10 pain. (Allen) was a normal human being walking around."

However, Allen’s attorney, Spencer Kuvin, of the Law Offices of Craig Goldenfarb, argued many of the statements Maniotis challenged, including Allen’s failure to seek prompt medical attention were explained by various family problems Allen dealt with at the time of the accident. “This youg man was worried more about the other people in his life at that time then himself,” Kuvin said. “He was busy taking care of his mother, of his grandmother, of his wife because of what she was going through. That evidence shows you what (Allen) was made of.”

Maniotis concluded by telling jurors that they could find Buckner was not liable for Allen’s damage and “walk out of here and never give this case a second thought, and do it with a clean conscience.”

“The evidence is there for you to completely disbelieve this gentleman,” Maniotis said.  


Additional information

Attorneys in the case include Spencer Kuvin, representing James Allen, and Nicholas Maniotis, representing Dale Buckner. 

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Topics: Negligence, Florida, Allen v. Buckner

Johnny Gill Suit Against Hyatt Scheduled for Trial in Fulton State Court Monday

Posted by Steve Silver on Apr 15, 2015 5:43:28 PM

 

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Singer Johnny GIll's case against Hyatt Corporation for invasion of privacy and tresspass is scheduled to go to trial Monday in Fulton County State Court.


Atlanta—A late night incident in which a Fulton County Sheriff’s deputy and Hyatt security personnel allegedly entered the locked hotel room of singer Johnny Gill without permission forms the basis of a lawsuit by Gill against Hyatt Corporation that is scheduled for trial in Fulton County State Court Monday. Johnny Gill v. Darian Dockx et al. (09EV007611). Courtroom View Network has applied to the Court for permission to record the proceedings.

Gill is a nationally known singer and entertainer who was formerly a member of the musical group New Edition. According to documents filed in the case, Gill performed in concert with the group at Atlanta’s Chastain Park on June 17, 2007,and then spent the night at the nearby Grand Hyatt Hotel. The incident occurred at approximately 4:00 a.m. on the morning of June 18.

Click Here FREE Georgia Trial Video Samples Gill alleges in his complaint that Calvin Erby, an Atlanta music promoter, falsely informed the Fulton County Sheriff’s Department that he had obtained a judgment against Gill. Subsequently, a sheriff’s deputy, accompanied by Hyatt security personnel, entered Gill’s suite for the purpose of seizing property to satisfy the purported judgment.  

In a deposition, Gill stated that he had already locked his door and gone to bed for the night. Later, he woke up to discover a man in uniform standing over his bed while a Hyatt security officer was also present in the suite. Gill then telephoned his attorney who spoke to the sheriff’s deputy. According to Gill, the deputy, who was in Gill’s suite for approximately one hour, eventually left without removing any of Gill’s property.

On April 1, 2013, State Court Judge John Mather granted summary judgment in the case in favor of the Fulton County Sheriff’s Department and various individuals who had originally been named as defendants in the case. However, he allowed the case to proceed to trial against Hyatt Corporation on the grounds of invasion of privacy, negligent infliction of emotional distress, and trespass, and against Calvin Erby on those and various additional grounds as well.

In denying Hyatt’s motion for summary judgment, Judge Mather noted that “the record contains sufficient evidence of an intentional invasion of privacy to reach the jury. [The hotel’s security director] contends that he instructed hotel security to not provide [the sheriff’s deputy] access to Plaintiff’s room. Granting the non-movant the benefit of all favorable testimony, this instruction was apparently ignored and security personnel nevertheless assisted Deputy in gaining access to the room—even removing the night latch.”

Courtroom View Network will continue to follow the trial and provide reports as it progresses.

Johnny Gill will be represented by B. Thassanee Gutter-Parker of Grayson, GA. CVN was unable to contact representatives for the defendants prior to the publication of this article.

Steve Silver can be reached at ssilver@cvn.com.


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Topics: Tort, Georgia, Gill v. Dockx

Smoker's Lung Transplant and Cigarette Industry Marketing Detailed as Engle Tobacco Trial Opens

Posted by Arlin Crisco on Apr 14, 2015 9:43:00 PM

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Philip Gerson delivers the opening statement on behalf of his client, Tina Russo, who claims Philip Morris and R.J. Reynolds are liable for her mother's COPD. 


 

Miami—Trial opened Friday in a woman’s suit seeking millions from two tobacco manufacturers she claims were responsible for the respiratory disease that required her mother’s lung transplant and ultimately led to her death. Russo v. Philip Morris, 2007-44469-CA-01.

Watch Video from Tobacco Trials Tina Russo contends her mother Phyllis Frazier’s 30 years of smoking were driven by R.J. Reynolds and Philip Morris-led concealment of smoking’s dangers. Frazier quit smoking in 1992, one year after being diagnosed with chronic obstructive pulmonary disease that ultimately required a lung transplant. She subsequently died in 2012 from skin cancer that had spread to her brain. Russo’s attorneys contend the cancer spread because Frazier’s immune system was weakened by drugs intended to combat her body’s rejection of the new lungs.

During Friday’s openings, Russo’s attorney, Philip Gerson, of Gerson & Schwartz PA, argued that Frazier was misled by decades of tobacco industry marketing claims, including promises that low-tar and filtered cigarettes were safer to smoke. “Phyllis relied (on defendants’) representations that filters were safer and that these low-tar cigarettes were safer, and the evidence will prove that they were not safer,” Gerson said. “There is no safe cigarette. There never was a safe cigarette. None of the cigarettes that she smoked were safe cigarettes, but she relied on their representations that they were at least safer.”

The defense acknowledged what Shook Hardy’s William Geraghty described as “wrongheaded” claims by the tobacco industry, but argued Frazier’s smoking was not influenced by tobacco marketing. During openings, Geraghty, representing Philip Morris, told jurors there was no evidence tying Frazier’s smoking decisions to tobacco industry messaging. “Phyllis Fraizer wasn’t paying attention to anything cigarette companies were saying. She wasn’t waiting for Philip Morris or R.J. Reynolds to tell her ‘Cigarette smoking is dangerous, and you need to quit,’” Geragthy said. “Phyllis Frazier and only Phyllis Frazier made those decisions.”

The suit is one of thousands of similar Engle progeny lawsuits filed against tobacco companies in Florida. The cases arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994.

This is not the first trip to the courthouse for Russo, and the case has already played a key role in Engle litigation. The appeal of the first Russo trial served as the basis for  Florida Supreme Court ruling earlier this month holding that the state's statute of repose does not require plaintiffs to prove reliance on tobacco industry fraud within the law’s 12-year timeline. That holding renders it easier for Engle plaintiffs to win punitive damages at trial.

The trial is expected to last two weeks. Neither the parties' attorneys nor their representatives could immediately be reached for comment. 

Arlin Crisco can be reached at acrisco@cvn.com


 

Additional Information

Attorneys in the case include Philip Gerson, of Gerson & Schwartz P.A., representing Tina Russo; William Geraghty, of Shook Hardy & Bacon, representing Philip Morris; and Geoffrey Beach, of Jones Day, representing R.J. Reynolds. 

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Topics: Negligence, tobacco, Engle Progeny, Florida, Russo v. Philip Morris

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