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  1. #1
    mrsgdsn is offline Junior Member
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    Exclamation Medical Malpractice HELP

    I am in NC actually trying to find out some info for my brother who is from NC but he is in a Federal Prison in Kentucky, he is due to be out in May of this year. We are having problems getting in touch with a lawyer to help us figure out what to do. He had a liver biopsy done at the prison on 12/11/08, he said that the doctor was suppose to extract 3 pieces of liver out to test to make sure his liver was ok, well his doctor pulled out 2 pieces of liver and 3 times missed, the doctor left it at that, he told the nurse, this is not liver tissue, he didn't check to see what he had hit. After leaving the doctor, he went back to his job there and started to get sick, he went back to the doctors office and they told him it was normal to feel sick and sent him back to work. The next day and the whole weekend he was really sick and was hurting really bad, the nurses at the prison and the guards kept telling him it was normal.

    On 12/15/08 they woke everyone for breakfast and my brother could not hardly move, he was sick, sweating and hurting really bad, the guard went to get the nurse to come see him but she said that my brother needed to come to her, my brother couldn't because he couldn't walk, he was going in and out of consciousness. Finally the nurse came up and checked him and his temperature was over 102, the next thing he remembers is waking up in an ambulance, then waking up in a hospital room with the doctor standing over him that did this, saying that he has to go to surgery immediately, he leaned over and asked my brother straight out, "Are you going to sue me?" Well of course with my brother having no idea of what was going on, just knowing that he was going into surgery said "no". He went into surgery not having any idea of why or what was going on.

    When he woke up from surgery the next day (12/16/08) he was shackled, hands and feet to the bed in a hospital room with his stomach cut open from his ribs down to his belly button. (Hands and feet, not really necessary, with the surgery he had just had he wasn't going anywhere and he's not a killer or a rapist, he got in trouble for testing positive on a drug test while he was on parole) Not knowing what had happened, he asked the nurses, they would not tell him. No one called me, or my Mom to let us know anything. He stayed in the hospital from the 15th to the 20th without having any idea of what happened, why he was cut open, or what kind of surgery he had. He also got pneumonia during his stay there.

    On the 19th he was sent back to the prison with pneumonia, where he did not get to eat for 2 or 3 days because they would not allow his cellmate to bring him his food and he could not walk to go get it because he was so sore and was still recovering from surgery.
    Finally about 2 weeks later he found out why he had had surgery, it was because when the doctor was doing the liver biopsy and missed those 3 times, he punctured my brothers intestines and his lung cavity. The 4 days that he was in pain and really sick, his lungs were feeling with blood, his stomach was filling up with feces and blood and they said that by the time he got to the hospital his pelvis was filled with blood. The doctor that read the records to him, said that he was a dead man when they got to him that day, he wasn't going to say much but that he needed to get a lawyer ASAP.

    Now today is Feb. 25th, my brother just found out about 3 weeks ago, why he is still in so much pain, they took out a big piece of his large intestine while he was in surgery, the new doctor said that he would most likely live with that pain for the rest of his life. My brother was told that he needed to file something called administrative remedies and a federal torque, I don't know what these things are, last time I spoke to him, he was trying to file them.

    Every lawyer that I have called and he has called has told us that they don't mess with federal? What does this mean? Does that mean since he was botched up in a federal prison by a doctor that he cannot get any justice for this? Or does it mean that we need to find a different type of lawyer?

    The warden at the prison has stopped all Liver Biopsy's from taking place there, she told my brother that herself, she also told him that she could not blame him for anything that he may do, as far as legal action goes. Now today, the doctors and the warden are telling him that he is wasting his time filing papers or trying to get a lawsuit going because the doctor has resigned and has disappeared and that they do not have the records of his liver biopsy, they have been lost. And, yes these are the people that were encouraging him in the first place to file a lawsuit against the doctor. If there is a lawyer out there that can give us advice or would like to take this case we would be extremely grateful.
    Last edited by mrsgdsn; 02-25-2009 at 07:44 PM.
  2. #2
    ecmst12 is offline Senior Member
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    Please format your post into PARAGRAPHS if you want anyone to be able to read it and offer assistance.
  3. #3
    mrsgdsn is offline Junior Member
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    Thanks for the reply and the constructive criticism. Although the remark about "Justice", to me justice would be suing the heck out of em' all. But the question is, can he sue?
  4. #4
    ecmst12 is offline Senior Member
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    There is such a thing as governmental immunity. IF he can find a lawyer to fight this for him, it will be an uphill battle all the way. Courts don't tend to be too sympathetic to prisoners, either.
  5. #5
    RedNeckBarber is offline Junior Member
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    Courts may not tend to be too sympathetic to prisoners as per ecmst12 but he is still a human being and deserves to be treated as one. Just because he is a prisoner doesn't make him any less. Are you saying NO ONE CONTACTED THE FAMILY AT ALL? Who gave consent for treatment? If your brother was in severe pain and had been given any kind of pain medication could he have given consent?

    Start with the prison. Find out who called the ambulance and sent him for treatment. With all the HIPPA crap you may have a difficult time getting answers but don't give up. I would probably start with the top person, the Warden but you can get in touch with the chaplain. I wouldn't threaten. I would tell them I just want to know how this happened. Go from there but if he is scheduled to be released in May, I'm sure you are probably hesitant about making waves for fear they will take it out on your brother. DON'T BACK DOWN. Find out if there is a grievance committee within the prison.
    Last edited by RedNeckBarber; 02-27-2009 at 12:17 AM.
  6. #6
    ecmst12 is offline Senior Member
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    OP will not be able to access any of her brother's medical records without a power of attorney. He may or may not be able to access them himself - HIPAA may not apply to records of prisoners.
  7. #7
    wyett717 is offline Member
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    This really has nothing to do with OP anyway. If brother wants to pursue something, he should look into it upon his release from prison.
  8. #8
    mrsgdsn is offline Junior Member
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    Thank you for all the responses.
    As for the response from ecmst12, I understand completely that it is going to be an uphill battle the whole way, we can't even get anyone to call us back to tell us what to do in the mean time until he gets out in May. He is being told by people in the prison that there are papers that he has to file, otherwise when he gets out there will be nothing he can do. That is my main reason for coming on the forums in the first place, just to find out if he needs to stress over these administrative remedies or can he take care of those with a lawyer when he gets out so that he can get some help with those?

    Responding back to RedNeckBarber, I agree with you, prisoner or not, he is a human being and does deserve to be treated as one. To answer your questions, No one contacted the family at all, all the #'s that are on my brothers call list are family members, my mom, me, my husband, my grandmother, my aunt and one of my brothers childhood friends, they called none of us. He went into surgery on the 15th and he came out of the hospital on the 19th. We didn't hear from him until the 21st or 22cnd, he called us from the prison and that is when we found out what had happened.

    He did not consent to surgery, nor any medication and no one is saying who did. Like I said before he was going in and out of consciousness and doesn't remember much except waking up with the nurse standing over him in the cell, waking up once in the ambulance and waking up once in a hospital room with the doctor saying that he needs to go into surgery immediately and right before he went into surgery the doctor asking him if he was going to sue him. Then he didn't wake up until the next day (20th) with no idea what happened or what was going on.
    Who called the ambulance and submitted him for treatment? We have no idea, he has been trying to find that one out. Everyone was cooperating and now everyone has went hush-hush and says that they don't remember anything. The warden was being really nice to him, now she is telling him he needs to just deal with it and that there is nothing he can do, the doctor has resigned, the medical reports for the biopsy are gone and that he is wasting his time.
    He has sent 2 administrative remedies to the grievance committee with no response at all. ( I may be wrong, it may not have been administrative remedies, i believe that is what he said though, but he did file 2 of something with them) I don't mean to sound so dingy but I am dealing with a lot right now so trying to remember everything word for word is hard.

    He has sent me copies of the medical reports, the only report that we do not have is the one on the liver biopsy itself, they told him that it was lost, the doctor has resigned and there is no reason for him to keep asking for it.
    The medical reports that I do have are for the surgery and they state that the reason for surgery is the liver biopsy that he had.

    As for wyett717, in away I can understand your comment that it has nothing to do with me. But this is my big brother, he's been in my life for 29 years so in a court I guess I wouldn't be considered as having any part of this, but he is in prison and as much as I don't agree with a lot of things that he has done, I do not think that he deserves to go through this alone. It takes weeks to add someone to your call list when you are in prison and you can't add but so many people at a time, so he can't really call a lawyer to ask for advice and he can't receive phone calls so he can't call and leave a message and wait for them to call back. So that is why I am trying to find out some info for him.
    As I stated before, he was told that he needs to file administrative remedies and a federal torque claim otherwise when he gets out in May there is nothing he can do. We are just trying to find out if this is true and also if there is anything else he needs to do before he gets out?

    You have to understand that this was something that messed him up pretty bad. He can hardly use the bathroom, when he eats it hurts really bad. The new doctor said when he looked at the reports, that the other doctor "botched him up". Half of his large intestine is gone, he was hemorrhaging on the inside, his heart rate was 122 and his temperature was 102.9. My brother has always tried to stay really fit, with six pack abs, now he has a huge scar from his ribs down to his belly button and the muscles were all cut.
    The doctor stated to him that he would have problems with his stomach and bowels for the rest of his life and that this all could have been avoided if the doctor that did the liver biopsy would have just took the time to see what he had hit when he missed those few times, instead of acting like it was no big deal.

    ecmst12 said something about governmental immunity, now if my brother got the right information, he was told that the hospital and the doctor do not have governmental immunity, the prison however does, but as it was explained to him, they have a limited amount of immunity, they can't treat you but so bad, another words they can't bring you in and beat you and expect to get away with it. The example that he was given was a guy not to long ago sued that prison for $290,000 and won because a guard pushed him and they said it was excessive force.

    He's not just trying to go after the prison, he is going after the doctor and the hospital as well. I don't know if this makes a difference but the doctor was contracted out by the hospital. As I stated before, he has since resigned.

    Here is another tidbit of information, after this biopsy and everything that went wrong, the head of the medical staff at the prison and the warden have stated that there will no longer be anymore liver biopsy's done at the prison again, they were not suppose to have any liver biopsies done there because it is not a sterile environment.
    Also, get this, they do not even have his test results from the liver biopsy that caused all of this, so they want my brother to have another liver biopsy done as soon as possible, outside of the prison at a different hospital but my brother will not consent to it.

    He was told to file a federal torque claim against the FBOP (Federal Bureau of Prisons) and a Bivens against the doctor and also administrative remedies. I am not going to lie, I don't know what all that means but just throwing it out there so maybe someone else can explain if that is what he is suppose to be doing or is this something he should and can wait for til he gets out so that a lawyer can help him with this.
    Last edited by mrsgdsn; 03-05-2009 at 05:53 PM.
  9. #9
    ecmst12 is offline Senior Member
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    Also keep in mind that by definition, someone in prison has much fewer rights then someone NOT in prison. Not that he has NO rights, but he may not have the same rights regarding medical treatment and consent to same. Your brother should talk to a lawyer that can explain those rights to him.
  10. #10
    LAWMED is offline Member
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    Your question has to be broken down and some basic facts determined as to who was the direct employer of the physician. Without being too technical, you have already heard the term Federal Tort (not torque) Claims (named after the Federal Tort Claims Act which allows limited claims against the government and it's officials who would otherwise be immune from a lawsuit), and Bivens Claims (named after the man who filed suit against federal agents and was allowed to sue for money damages). The government cannot be sued for money as they enjoy immunity...unless, in this case, the Fed. Tort Claims Act limits their immunity.

    However, this ONLY applies to federal institutions and employees. If the physician is a contracted worker, and the court finds (as it has in the past) that these federal immunity issues do not apply to him) then filing any of these actions against him will end in them being dismissed. This sounds bad, but it may also be good. It means he can be sued directly just like any other physician (and it sounds like he knows this already). You need to find a malpractice attorney who is willing to figure out these employment issues first...because 'I don't do federal' may be neither here nor there since it may not turn out to be federal.

    As you can see however, this can be a bit complicated initially and you need experienced legal advice.

    Medically speaking, performing a liver biopsy requires an experienced physician and staff. It is done ONLY after blood tests reveal abnormal liver function. Complications are rare. The most common are puncture to the lung or gallbladder. If the gallbladder is punctured, acute pancreatitis may result which can be life threatening. Puncture of the bowel is VERY rare and hard to explain other than malpractice. ANY abdominal pain, fever, vomiting, high heart rate, shortness of breath, etc. after liver biopsy is a medical emergency which must be treated in a hospital....FAST. Soreness at the puncture site and right shoulder pain for a day or so is normal.

    Get a lawyer....your brother is entitled to the same rights as any of us when his physician nearly kills him.
  11. #11
    mrsgdsn is offline Junior Member
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    Thank you again for your replies.
    I have spoken with a lawyer in the 6th circuit. He said that the doctor is not under immunity because he was contracted, he actually worked for the hospital not the prison. The lawyer told us to find a bar association in the county that the biopsy took place to go after the doctor.
    I am not quite sure though if the lawyer understood that the liver biopsy took place in the prison, not at the hospital, I don't know if that makes a difference or not.
    LAWMED thanks for your advice. As I stated before the doctor worked for the hospital not the prison, he has however resigned. So, hopefully now we can find a lawyer to go after the doctor.
    The prison however, about let him die. I think personally, but of course I am not a court of law, if they do something such as a liver biopsy on the premises of a prison, the nurse staff there should know what the symptoms should and should not be for a liver biopsy. When he came to them telling them how bad the pain was and he was having a hard time breathing, they should have contacted the doctor, not sent him back to his cell for 4 days with some aspirin. He couldn't even go get his own meals, his cell mate had to bring him food for a couple of days because he could barely walk and he could barely eat because he was hurting so bad. It got to the point where the guard would go down the 4 flights of stairs to try to get a nurse to come up and see him and she wouldn't, she would tell him he would have to walk down there if he wanted to be seen.
    The day that they rushed him to the hospital for surgery, the guard tried to get the nurse to come up to see him because my brother was going in and out of consciousness and she said once again that if he wanted to see them he would have to come down there to them. HE COULD NOT WALK!
    Finally she came up to him and checked his temperature and seen that it was at 102.8 and his heart rate was 122, that is when they decided to send him to call an ambulance.
    Should they, the prison, be held accountable for that? The other doctor had told him that he was almost dead, his body had hemorrhaged so severely.
    His lungs were filled with blood and were almost fully collapsed, his stomach was filled with blood and feces because his bowels were leaking into his stomach. By the time they got him to the hospital his pelvis was filled with blood.
    The good news is that they got the records of the liver biopsy, he is suppose to be getting a copy today.
    I did find out that he did not sign any papers, what so ever for the liver biopsy, he said they did not tell him of any type of complications that may arise, if so, he said he would have never done it.
    My brother desperately wants to go after the prison as well, so he is going to file a federal tort, I thought he already done so, but he was hoping to speak with a lawyer before he did so that they could make sure he done it right.
    I guess what I am asking is, it has been stated that federal prisons have immunity but they can't get away with everything, so does this sound like something that they may be held liable for if a federal tort is submitted? And does anyone have any advice on submitting a federal tort?
    Last edited by mrsgdsn; 03-11-2009 at 10:01 AM.

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