Utah Wrongful Death Law: An Attorney's Perspective

Utah is just one of four states with constitutions that specifically preclude any limitation on recovery in wrongful death suits.  The Utah State Constitution expressly states that “[t]he right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . .”  Utah const. art. XVI, § 5 (1896) (emphasis added).  Utah’s constitutional proscription on limiting recovery for wrongful death is sound public policy.  As one scholar has explained:

Under the pecuniary loss rule, followed in almost every state, life has no intrinsic value—no value per se.  This seems to be a peculiar result in a society that refuses, at least for some purposes, to place any price tag on human life.  Of course, an obvious distinction can be drawn between the cost of saving a life not yet lost and allowing tort recovery for one that is gone.  Since no amount of money can bring the decedent back, she cannot be compensated in any meaningful way for the loss of her life.  However, while this may justify a difference in the monetary values society attaches to lives that can be saved and those already lost, it does not support the traditional legal notion that a lost life has no cognizable value apart from the lost economic benefits the decedent would have conferred upon her survivor.

Andrew Jay McClurg, It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57, 59 (1990).
Fortunately, under Utah law, there is not—and there cannot be—any limit on the amount recoverable in wrongful death cases.
Families’ rights to seek judicial redress for the death of a loved one due to medical malpractice or other negligence are constitutionally protected. The nature of the right to seek judicial redress for wrongful death, and its constitutional significance, can be understood by examining history:

According to a Latin maxim, personal actions die with the person. The common law followed that maxim, holding that the death of either the tortfeasor or the victim eliminated all tort claims. In particular . . . [i]f the tort victim died, his cause of action was at an end. His estate had no cause of action.

Dan B. Dobbs, The Law of Torts, § 294 (2000). In 1846, however, England enacted Lord Campbell’s Act, which “created a wrongful death claim for the relatives of a decedent when the decedent would have had a claim if he or she had been merely injured and not killed.”
Utah’s Constitutional Wrongful Death Clause was “based on the enactment of Lord Campbell’s Act in 1846 in England to remedy a defect in the common law. The Act spread to this country, was enacted essentially in its present form in the Territory of Utah, and was then included in the Utah Constitution at statehood . . . . The plain meaning of the constitutional provision . . . is to prevent the abolition of the right of action for a wrongful death, whether in a wholesale or piecemeal fashion.”  Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 684 (Utah 1985) (internal quotations and citations omitted).
Accordingly, the state legislature has consistently maintained a statutory mechanism by which Utah citizens might avail themselves of the right. See Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179, 1184 (Utah 1983); Utah Code Ann. § 78-11-7. Discussing this act, the Utah Supreme Court stated:

Under 78-11-7, when the death of an adult is caused by the wrongful or negligent act of another, the heirs or the personal representative of the heirs may bring an action for damages against the person causing the death. This Court . . . interpreted the statute and held it to create “a new cause of action for the loss suffered by the heirs by reason of death and (the action) only comes into existence upon the happening of death.” The action is not derivative.

Hull v. Silver, 577 P.2d at 103-04 (quoting VanWagoner v. Union Pac. R. Co., 186 P.2d 293, 303 (Utah 1947)) (emphasis added).


Hull also highlights a critical point that is useful in understanding Utah’s wrongful death jurisprudence. In holding that the doctrine did not apply, the court relied heavily on the Washington Supreme Court’s decision in Johnson v. Ottomeier, 275 P.2d 723 (Wash. 1954). Quoting Johnson, the Utah Supreme Court adopted the reasoning that, “[n]ot having as its basis a survival statute, the action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased.” Hull, 577 P.2d at 106 (quoting Johnson, 275 P.2d at 725).

Those of us that live in Utah ought to be grateful to our State’s founding fathers, who had the wisdom and foresight to include this important provision in our State Constitution.

Stages of Breast Cancer

One of the first things to understand about a breast cancer case is staging.  Breast cancer stages range from 0 to IV, with many subcategories. Lower numbers indicate earlier stages of cancer, while higher numbers reflect late-stage cancers.  If a doctor waits too long to order the appropriate tests, the disease can progress without treatment.  This delay in diagnosis is a common form of medical malpractice.


Stage 0
This stage describes noninvasive (in situ) breast cancer. Ductal carcinoma in situ (DCIS) is an example of stage 0 cancer.

Stage I
This stage is an early stage of invasive breast cancer in which:

• The tumor measures no more than 2 centimeters (cm), or about 3/4 inch, in diameter
• No lymph nodes are involved — the cancer has not spread outside the breast

Stage II
This stage describes invasive breast cancers in which one of the following is true:

• The tumor measures less than 2 cm (about 3/4 inch) in diameter but has spread to lymph nodes under the arm.
• No tumor is found in the breast, but breast cancer cells are found in lymph nodes under the arm.
• The tumor is between 2 and 5 cm (about 3/4 to 2 inches) in diameter and may or may not have spread to lymph nodes under the arm.
• The tumor is larger than 5 cm (2 inches) in diameter but hasn't spread to any lymph nodes.

Stage III
Stage III breast cancers are subdivided into three categories — IIIA, IIIB and IIIC — based on a number of criteria. By definition, stage III cancers haven't spread to distant sites.
For example, a stage IIIA tumor is larger than 5 cm (2 inches) and has spread to one to three lymph nodes under the arm. Other stage IIIA tumors may be any size and have spread into multiple lymph nodes. The lymph nodes clump and attach to one another or to the surrounding tissue.

In stage IIIB breast cancer, a tumor of any size has spread to tissues near the breast — the skin and chest muscles — and may have spread to lymph nodes within the breast or under the arm. Stage IIIB also includes inflammatory breast cancer, an uncommon but aggressive type of breast cancer.
Stage IIIC cancer is a tumor of any size that has spread:

• To 10 or more lymph nodes under the arm
• To lymph nodes above or beneath the collarbone and near the neck
• To lymph nodes within the breast itself and to lymph nodes under the arm

Stage IV
Stage IV breast cancer has spread to distant parts of the body, such as the lungs, liver, bones or brain.

• The size of your tumor
• Whether cancer cells have spread to lymph nodes under your arm (axillary lymph nodes)
• Whether cancer cells have spread to other parts of your body

In its earliest stages, breast cancer may not cause any symptoms. A lump may be too small to feel or cause unusual changes. Often, an abnormal area turns up on a screening mammogram (x-ray of the breast), which leads to further testing.
In some cases, however, the first sign of breast cancer is a new lump or mass in the breast that you or your doctor can feel. A lump that is painless, hard, and has uneven edges is more likely to be cancer. But sometimes cancers can be tender, soft, and rounded. So it's important to have anything unusual checked by your doctor.
According to the American Cancer Society, any of the following unusual changes in the breast can be a symptom of breast cancer:

• swelling of all or part of the breast
• skin irritation or dimpling
• breast pain
• nipple pain or the nipple turning inward
• redness, scaliness, or thickening of the nipple or breast skin
• a nipple discharge other than breast milk
• a lump in the underarm area

These changes also can be signs of less serious conditions that are not cancerous, such as an infection or a cyst. It’s important to get any breast changes checked out promptly by a doctor.
If you reported symptoms like this to your doctor, but did not run necessary tests to rule out breast cancer, the cancer can spread.  If you or one of your loved ones presented with early symptoms of breast cancer, including palpable lumps, nipple retraction, or other early signs of cancer, but the physician overlooked them, please contact Utah attorney Ryan Springer for a free legal consultation about your legal rights and a confidential case evaluation.

Medical Malpractice: Colorectal Cancer Misdiagnosis

In the United States, only lung cancer claims more lives than colorectal cancer, which encompasses cancers of the colon, rectum, anus and appendix. Out of the more than 130,000 people in the United States who receive a colon and rectal cancer diagnosis each year, more than 50,000 people die.

Although colon and rectal cancers develop slowly, they are often not detected until they are life-threatening. Symptoms include changes in bowel habits, ranging from diarrhea, constipation, narrowing of the stool and rectal bleeding to cramping, steady stomach pain, and weakness and/or tiredness. Such symptoms can be evident even if the growth is in an early pre-tumor state, known as a "polyp."

Screening for Colorectal Cancer: Patients presenting to a doctor or medical professional should be given a cancer screening. Early screening can greatly increase the chance of survival. The two most typical types of screening for colorectal cancer are a flexible sigmoidoscopy, in which a doctor inserts a sigmoidoscope in the rectum and searches for growths, and a colonoscopy, in which a doctor uses a larger tube, a colonoscope, in the rectum and is able to examine the entire colon.

Early sigmoidoscopy or colonoscopy can allow a doctor to find a polyp and remove it before it becomes malignant. The American Cancer Society Colorectal Cancer Screening Guidelines state that beginning at age 50, both men and women should have a flexible sigmoidoscopy every 5 years, along with a yearly blood stool test. The guidelines also recommend a full colonoscopy every 10 years.

If you or a loved one is suffering from painful treatments for colon or rectal cancer, or if you have a loved one who has passed away because of the condition, it is possible that your doctor misdiagnosed the condition or made some other crucial error. Medical negligence attorney Ryan Springer works closely with medical experts to examine medical records and discover whether negligence or misdiagnosis led to otherwise avoidable surgery, pain, suffering, or wrongful death.

To determine whether you, or a loved one, suffered from an incorrect diagnosis or other medical error, please contact malpractice lawyer Ryan Springer at (801) 424-9088 for a free, no-obligation initial consultation.  Ryan helps malpractice victims throughout the State of Utah, including Salt Lake City, Provo, Ogden, Logan, St. George, Moab and Price.

Gentamicin Questions and Answers

Q. What is Gentamicin?

A. Gentamicin is a potent, yet highly toxic antibiotic belonging to a class of drugs called aminoglycosides.  It is used in the treatment of bacterial infections affecting the skin, bone, lungs, joints, stomach, urinary tract, or blood. It is administered either intravenously or by injection into your muscle.

Q. What is Gentamicin poisoning?

A. Gentamicin toxicity is a harmful side effect caused by negligent administration of the antibiotic. When it is prescribed for a long period of time or in high dosages, it can accumulate and cause serious damage to the hair cells of the inner ear.  Usually, doctors who negligently prescribe Gentamicin fail to order appropriate monitoring.  Patients receiving Gentamicin should be under close clinical supervision, and should have regular monitoring of Gentamicin levels as well as kidney function.
Q. What are the symptoms of Gentamicin poisoning?
A. Because Gentamicin damages the inner ear, it can impair the patient's entire vestibular system.  Common symptoms include:

• Blurred vision
• Balance issues
• Feelings of vertigo
• Dizziness
• Nausea
• Ringing in the ears (tinnitus)
• Difficulty in crowds or in dark places

Q. What treatment options are available if I have suffered inner ear damage from Gentamicin?

A. Currently, there is no cure for inner ear damage caused by Gentamicin poisoning. It is possible to experience a partial recovery from injuries; however, the process is very slow. Your brain may be able to partially compensate for your inner ear damage by relying on other senses to provide important information. Vestibular rehabilitation, which stimulates your damaged ear region, may also provide some relief.

Q. Who can be held accountable for my Gentamicin poisoning injuries?

A. Medical malpractice lawsuits can be brought against negligent doctors, hospitals, or home health agencies responsible for prescribing, administering, and monitoring your use of Gentamicin.  Attorney Ryan Springer is an experienced Salt Lake City medical malpractice lawyer who has successfully litigated many Gentamicin poisoning cases on behalf of injured patients.  He can provide you with a free case evaluation to help you determine who can be held accountable for your damages.

Q. Are there time limits affecting my Gentamicin case?

A. Yes. There are statutes of limitations governing Gentamicin cases. It is crucial that you file your claim within these time limits in order to be able to receive the compensation you deserve. Since the statute of limitations may begin to run from the time the drug is negligently administered, it is important to talk with an experienced Utah malpractice lawyer immediately to ensure you do not miss important filing deadlines.
If you have suffered an injury caused by Gentamicin poisoning, contact Salt Lake City personal injury lawyer Ryan Springer at (801) 424-9088 today to schedule a free initial consultation.

Understanding Life Care Plans

One of the primary reasons people bring a personal injury suit is to ensure that the negligent party is held accountable for future medical and other needs that were caused by the injury.  In some cases–especially those involving spinal cord injuries, brain injuries, or other permanent damage– this requires a detailed, specific plan of what those needs will be.  In those cases, one of the tools that I use in preparing cases for trial is a “Life Care Plan.”
According to the International Academy of Life Care Planners, a Life Care Plan is a “dynamic document based upon published standards of practice, comprehensive assessment, data analysis and research, which provides an organized, concise plan for current and future needs with associated costs, for individuals who have experienced catastrophic injury or have chronic health care needs.”
By using qualified life care planners as part of the trial team, we do not leave future medical needs to chance or guesswork.  We provide the jury with a detailed and specific plan and the costs for future needs.  An economist assists by predicting the future costs of those needs after adjusted for inflation.

Some attorneys will be eager to sign up a client who has suffered catastrophic injuries and hope that a jury can correctly guess how much the victim will need for future medical needs.  But if they don’t prepare for trial by using specific life care plans, they put their clients’ future care in jeopardy by leaving it to chance–if they’re able to make the claim at all.

If you have a medical malpractice or personal injury claim resulting in future medical needs that will last a lifetime, you need an attorney that understands the role of life care plans and includes them as part of the trial team.

Adding Insult to Injury: When Doctors Lie to Patients

Last Summer, I wrote about the increasing number of doctors that withhold critical information from their patients, especially when that information involved medical mistakes.

According to a survey published by Health Affairs, things are getting worse, not better.  The study shows that although two-thirds of doctors agree they should share serious medical errors with their patients, at least one-third did not  agree.  Worse, some doctors are not only keeping information from their patients, 1 out of 10 are actually lying about it.

In an interview with ABC News Dr. Lisa Iezzoni, lead study author and professor of medicine at Harvard Medical School, said "We don't know the exact reasons for many of these findings, but it is a sign of caution that patients need to be aware of."

What can a patient do when a trusted medical provider adds insult to injury by committing medical malpractice and then lying about it?

In Utah, this kind of conduct may be the basis for a separate claim called "breach of fiduciary duties."  The Utah Supreme Court has unequivocally held that "Doctors stand in a  fiduciary relationship with their patients."  Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256; see also Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614.

As noted jurist Benjamin Cardozo explained, “Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A [fiduciary] is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

And the Utah Supreme Court has held that fiduciaries owe several discrete duties, including duties of loyalty and honesty.  See, e.g., McLaughlin v. Schenck, 220 P.3d 146, 153-56 (Utah 2009); Smith v. Fairfax Realty, Inc., 82 P.3d 1064, 1074 (Utah 2003); Lynch v. MacDonald, 367 P.2d 464, 468 (Utah 1962).

Doctors who commit malpractice and then lie to their patients about it are not only liable for negligence, but for breaching their legal duties as fiduciaries as well.  Perhaps worst of all, they are guilty of violating the trust that their patients have placed in them.

Medical Negligence and Keeping Secrets

Health Leaders Media recently reported that a startlingly high percentage of health care providers fail to disclose their errors due to fears of reprisal or retaliation.

As a medical malpractice lawyer, I’ve never understood why hospitals and health care corporations don’t just admit their mistakes and make the people whole.  They would put my colleagues and me out of business in an instant while drastically reducing malpractice costs, insurance premiums, and other expenses.

It’s almost like it is a big game to these corporations.  They would rather waste hundreds of thousands of dollars covering up mistakes and paying high priced defense lawyers hundreds of dollars an hour for years of litigation than simply admitting a mistake and paying malpractice victims a fair amount for their medical bills, pain, and suffering.

I just don’t get it…

Utah Medical Malpractice Lawyers Assist Shoulder Dystocia and Erb's Palsy Patients

Shoulder dystocia is a relatively common complication experienced during childbirth. It occurs when the infant's shoulder's become impacted behind the mother's pelvic wall. Shoulder dystocia is usually encountered with large babies weighing in excess of 4,500 grams (fetal macrosomia), but that is not always the case. Other predictors of possible shoulder dystocia are significant maternal weight gain and gestational diabetes.

Most obstetricians can predict whether a delivery presents a risk of shoulder dystocia, and can take a number of precautions--including cesarean delivery--to avoid it.

In some cases, however, shoulder dystocia cannot be predicted. Doctors and nurses that encounter this condition can employ a variety of techniques to help avoid serious injuries, such as the McRoberts maneuver, application of suprapubic pressure, or something known as the "corkscrew" maneuver.

Unfortunately, in some cases, physicians or medical staff have not been properly trained in these procedures. Other times, doctors might rush to use an instrument such as a vacuum extractor or forceps to help extract the infant.  Such inappropriate actions often result in injury to the brachial plexus nerves in the infant's neck. These injuries can range from strain, which may heal over time, to complete avulsion. Depending on the severity of the injury to the brachial plexus nerves, a child may develop a condition known as Erb's Palsy.

Erb's Palsy can result in a crippling disability to a child's upper extremity. While some surgical procedures can increased the range of motion, many children never regain full use of their arms. Though children suffering from Erb's Palsy can be happy and confident, simple tasks such as eating with utensils and putting on socks serve as frustrating reminders that they are different from their playmates.

Utah Medical Malpractice Attorneys Can Help Recover for Birth Injuries and Cerebral Palsy

The delivery of a newborn child is one of life's most miraculous events. Often, it is the culmination of months of preparation and effort, and results in a joyful addition to a family.

It is during this process that expectant mothers and fathers put their trust in the care and professionalism of their doctors and nurses. With so much at stake, parents put a great deal of faith and trust in their health care providers.

In most cases, that trust pays off, and through the efforts of conscientious doctors and medical staff, new babies are born healthy and happy. But mistakes happen. The birth of a child--sometimes a once in a lifetime event for a family--can become routine practice for obstetricians and their staff. Additionally, the demands of the corporations that run the hospitals place increasing time and business burdens on doctors. Instead of giving each delivery the specialized attention it deserves, doctors are frequently rushed and distracted. Similarly, overworked nurses can get so busy that they forget to monitor the mother and baby's progress, or ignore critical signs that something may be wrong.

These lapses in judgment--simple mistakes--can have catastrophic consequences, resulting in profound, life-long injuries.

As difficult as delivery is for the mother, it is just as hard for the baby. The birthing process exerts stress on the baby, and if that stress is not closely observed and managed, it can become too much for the baby to handle on its own. Additionally, complications like umbilical cords being wrapped around the baby's neck can cause additional concerns.

If these conditions are monitored, they can be resolved with relatively mild medical interventions such as medication, or sometimes, delivery by cesarean section. If they are not monitored, however, then the baby's heart can malfunction, and the brain is deprived of oxygen. When this goes on for too long, the brain is irreversibly damaged.

Hypoxic ischemic encephalopathy (HIE) is a type of brain damage that affects various cognitive and physiological functions, and even death. Children who survive HIE often struggle with learning disabilities, mental retardation, epilepsy, poor motor coordination, and cerebral palsy, among other things. These special needs often require thousands--if not millions--of dollars in medical care and treatment.

Proving that medical negligence caused birth injuries is a difficult, complex process. The medicine and legal issues involved require skill, training, and experience. Not all cases of cerebral palsy or HIE are caused by medical negligence, but the only way to know for sure is to contact an experienced medical malpractice attorney.

The Utah medical malpractice lawyers at G. Eric Nielson & Associates specialize in complex birth injury litigation. We have handled many of the largest cases in the State of Utah, and recovered millions of dollars for injured children. If you have questions about cerebral palsy or the possibility that your child may have been injured by medical negligence, the medical malpractice attorneys at G. Eric Nielson & Associates offer free, no obligation consultations. We can have your medical records reviewed by national experts, and we can give you the answers you have been looking for.

Aortic Dissection - Delay in Diagnosis Can Be Fatal.

The aorta is the largest artery in the body.  It starts from the left ventricle of the heart, and extends down to the abdomen, where it branches off into smaller arteries.  The aorta itself has two walls: an outer wall and an inner wall. An aortic dissection occurs when a tear in the inner wall of the aorta causes blood to flow between the layers of the wall of the vessel, forcing the layers apart.

 

The aorta has an outer and inner wall, which is kind of like the inner tube of a tire.  If the inner wall develops a tear, blood then passes between the inner and outer walls of the aorta.  Since the heart is a pump, the pressure of the blood drives against the two walls like a wedge and continues to slowly tear away between the inner and outer walls.  The blood is in a false passage and has nowhere to go, so it accumulates until the pressure forces further dissection.  If the dissection tears the aorta completely open, massive and rapid blood loss occurs, often leading to death.

The symptoms of aortic dissection include sharp, "tearing" pain that starts suddenly, sometimes extending through the chest and into the back and neck or jaw.  There can also be other physical and neurological symptoms, such as fainting, lightheadedness, blurry vision, and numbness or tingling in the arms or legs. Sometimes it will cause nausea and vomiting.

Any time you have severe chest pain, you should consult immediately with a physician.  Emergency room doctors are trained to diagnose medical problems, including aortic dissection.  They should run a series of simple tests, including measuring your heart rate against the pulse felt in your extremities to check for adequate perfusion.  A chest X-Ray can be taken to look for abnormalities.  Because aortic dissections can be fatal if not treated on time, they are considered true medical emergencies.  Responsible medical professionals will run additional tests and consult with appropriate specialists to make the diagnosis.

In some cases, however, physicians don't follow the steps to make the diagnosis, and send patients home to face catastrophic consequences.  Delays in treatment of even a few hours can drastically decrease a patient's chances for survival.  It is therefore necessary that doctors be aware of, and properly diagnose, aortic dissection.


If a patient presents with symptoms of aortic dissection and a health care professional fails to make the correct diagnosis, it may be considered medical malpractice.  You should consult with a Utah medical malpractice attorney to discuss your legal rights to hold negligent health care providers accountable for their medical errors.  Contact the Utah Medical Malpractice Attorneys at G. Eric Nielson & Associates for a free consultation today.

801-424-9088