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January, 2010
Bonnie Refinski-Knight was appointed to the North Carolina State Bar Ethics Committee where she serves in an advisory capacity.
January, 2010
"When two-thirds of our lawyers are listed in Super Lawyers, we must be doing something right." Attorneys Tom Harris, David Creech, Bonnie Refinski-Knight, Britt Blackerby, and Jay Salsman were recognized in North Carolina Super Lawyers 2010. Tom Harris and Bonnie Refinski-Knight received top honors: Tom for being included as one of the "Top 100" attorneys who receive the highest points in the nomination process throughout the state, and Bonnie for being one of the "Top 50 Women" female attorneys who received the highest points total in the nomination process. Tom, David and Bonnie are recognized for their work in medial malpractice defense; Britt is recognized for his work in professional liability defense; and Jay is listed as a Rising Star in general personal injury defense.
November, 2009
Attorneys Britt Blackerby and David Creech were recently guest lecturers and presenters at the 2009 Pediatric/Neonatal Clinic Update held at the Hilton Greenville in Greenville, NC. The program was sponsored by the Children's Miracle Network, Eastern AHEC, University Health Systems of Eastern Carolina, and the N.C. Department of Health and Human Services. Before an audience of approximately 150 participants, Messrs. Blackerby and Creech lectured on liability issues for nurses and allied health professionals followed by a presentation of a mock deposition based upon a fictional labor and delivery obstetrical dilemma they created and customized specifically for that event.
September, 2009
Harris, Creech, Ward & Blackerby, P.A. and the attorneys, Tom Harris, David Creech, and Bonnie Refinski-Knight were selected for the Super Lawyers--Corporate Counsel Edition 2009. This publication lists law firms and lawyers from all 50 states and Washington, D.C. who have been selected for inclusion based on peer recognition and professional achievement.
September, 2009
Britt Blackerby and Bonnie Refinski-Knight presented an educational seminar to employees at three regional hospitals in southeast North Carolina, focusing on documentation, policy compliance, and depositions.
July, 2009
C. David Creech, W. Gregory Merritt, and Jay C. Salsman secure victory before the Fourth Circuit Court of Appeals.
In two consolidated lawsuits, related to the suspension and ultimate termination of the plaintiff-physician's hospital privileges, C. David Creech, W. Gregory Merritt, and Jay C. Salsman obtained a dismissal on behalf of a hospital. At the United States District Court for the Eastern District of North Carolina, the team brought a successful motion to dismiss the plaintiff's claims pursuant to 42 U.S.C. § 1983, whereby the plaintiff alleged that his due process rights were violated in the suspension and revocation of his hospital privileges. Counsel argued, and the district court agreed, that the hospital did not act under color of state law, and therefore, was not subject to Section 1983 liability. The plaintiff appealed the dismissal to the Fourth Circuit Court of Appeals. Following oral arguments, the Fourth Circuit affirmed the dismissal by a unanimous opinion. As at the district court level, the defense team successfully asserted that the hospital did not act under color of state law and was not subject to Section 1983 liability.
Allegations:
The allegations in the plaintiff's complaints surrounded the suspension, and ultimate termination, of his hospital privileges. Pursuant to hospital bylaws, corrective action was initiated against the physician. Following several layers of hearings held pursuant to the requirements of hospital bylaws, the hospital Board of Trustees suspended the physician's privileges and imposed additional requirements for reinstitution of the physician's privileges. After a determination that the requirements imposed by the Board were not satisfied, corrective action was again initiated, ultimately resulting in revocation of the physician's privileges by the hospital Board.
The plaintiff brought suit against the hospital and several physicians who took part in the corrective action process, alleging causes of action pursuant to 42 U.S.C. § 1983. The physician alleged that the hospital deprived him of his due process rights in suspending and revoking his hospital privileges, and in doing so, acted under color of state law. In support of his contention that the hospital was a "state actor," the plaintiff cited to a transfer agreement between the county and the hospital, whereby, among other things, the county and a state university Board of Governors appointed a majority of the hospital Board of Directors.
The Issue:
The central issue in the suit turned on whether the plaintiff had adequately alleged that the hospital had acted under color of state law in taking corrective action against the plaintiff. The plaintiff asserted that the relationship between the county and the hospital rendered the conduct of the hospital fairly attributable to the state, while the defendants asserted that the plaintiff's complaints lacked the requisite allegations that the relationship between the county and the hospital had an influence on the actions at issue.
District Court:
The defendants filed a motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, in the United States District Court for the Eastern District of North Carolina. The District Court granted the defendants' motion to dismiss, holding that the defendant hospital did not act under color of state law in suspending and revoking the plaintiff's hospital privileges. The court held that the hospital was a private hospital, and in the absence of allegations that the county was involved in the disputed action, the hospital did not act under color of state law.
Fourth Circuit:
The plaintiff appealed the district court's order to the Fourth Circuit Court of Appeals. Following the submission of legal briefs by the parties, oral arguments were held before a panel of the Court in Richmond, Virginia. In a published opinion, the Fourth Circuit affirmed the district court's dismissal of the plaintiff's Section 1983 claims. The Court analyzed the legal principles governing the imposition of Section 1983 liability against private actors and held that the hospital did not act under color of state law. The Court rejected the plaintiff's argument that the alleged "close nexus" between the county and the hospital rendered the conduct of the hospital fairly attributable to the state, because there were no allegations that the relationship between them influenced the disputed conduct.
May, 2009
Bonnie J. Refinski-Knight presented at the 22nd Litigation Section Annual Meeting of the North Carolina Bar Association on Expert Witnesses: Practical Tools for Maximal Effectiveness.
April, 2009
Bonnie J. Refinski-Knight was invited to speak on the Legal Issues Arising Out of Peer Review at the Zurich Healthcare Symposium in Schaumburg, Illinois. The symposium was sponsored by Zurich North America and attended by hospital risk managers and legal counsel from throughout the United States.
March, 2009
Bonnie J. Refinski-Knight, as chair of the Women in the Profession Committee of the North Carolina Bar Association helped to plan and then moderated the ethics seminar, The Women Layers Club at the NC Bar Center in Cary. Those also on the panel included Chief Justice Sarah Parker and Secretary of State Elaine Marshall.
January, 2009
Thomas E. Harris, C. David Creech and Bonnie J. Refinski-Knight, all partners in the firm, have been selected for inclusion in North Carolina Super Lawyers 2009. Tom Harris has been named in the top 100 of this exclusive group. All three have been named in the category of personal injury defense: medical malpractice. Additionally, David Creech has been named in the category of general litigation and appellate, and Bonnie J. Refinski-Knight has been named in the category of general litigation.
The Super Lawyers selection process consists of the creation of a candidate pool through a statewide survey of lawyers and an independent candidate search, followed by an evaluation of the candidates' professional achievements and peer evaluations. The candidates are then categorized according to their firm size, and those with the highest point totals from each category are selected. Only 5% of the total lawyers in North Carolina are listed in Super Lawyers. The listing of the top 100 Super Lawyers consists of lawyers who have received the highest point totals in the overall balloting, research and review process.
C. David Creech and Thomas M. Ward, both partners, have been selected as Business NC Legal Elite 2009 in the areas of construction (Creech) and real estate (Ward).
To qualify for listing amongst the Legal Elite, a lawyer must be one of the best lawyers in the state as voted on by their peers. Nominees are divided among 14 categories and total approximately 3% of the NC State Bar's active members.
Victories in Winter 2007/2008
In December 2007, Britt Blackerby and Greg Merritt were working on a case involving the death of a 40-year-old female who was seen in the hospital’s emergency department twice in the week preceding her final admission, where she was diagnosed at admission as having a fatal intracranial hemorrhage. The hospital was named along with two emergency room physicians, and the allegations as to the emergency room physicians included negligence in failing to order certain laboratory tests. The Plaintiff was also critical that the emergency room physicians prescribed medications without proper testing.
We were successful in having the hospital dismissed from the lawsuit. The Plaintiff was proceeding against the hospital based on the alleged agency relationship between the hospital and the emergency room physicians. By showing the Court that the hospital adequately placed emergency room patients on notice that the physicians were independent contractors, the Court determined Plaintiff’s claim against the hospital was insufficient as a matter of law.
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Two Big Victories in Fall 2007
Divide and conquer is an ancient battle tactic, which HCWB faced this year as the firm fought for clients, simultaneously and successfully, in two different courtrooms, in two different parts of the state.
Both cases involved medical malpractice claims, and both jury trials lasted three weeks, each beginning on September 17 and concluding the first week of October.
Facing these logistics, victory was particularly sweet.
HCWB’s Harris and Simpson Win Big
In the first case, HCWB’s Tom Harris teamed with Chuck Simpson to successfully defend a family practice group, two of its doctors, and two of its physician assistants, against the serious allegation of inexcusable delay in the diagnosis of breast cancer.
Background
Here, a 31-year-old mother of three presented one Wednesday with a new breast lump on the medial side of her right nipple. The lump was examined, and the patient was referred for mammogram and ultrasound on that Friday.
The reports from both studies were benign and consistent with fibrocystic changes. The following Wednesday, the patient returned and was seen by a different physician's assistant, who documented no mass present.
Six months later, the patient presented for breast complaints to a local surgeon, when her right nipple was inverted. The surgeon biopsied the tissue lateral to the right nipple and pathologically diagnosed invasive lobular carcinoma. However, a second mammogram following the diagnosis still read as benign, despite the obvious presence of a 9cm by 6cm mass.
The trial
The patient and her husband argued at trial, through their experts, that the two physicians’ assistants should have involved their supervising physicians in the assessment process that occurred six months prior to diagnosis. They also argued that the second physician’s assistant simply missed the lump, which was still present after the radiographic studies were conducted.
The Plaintiffs' experts testified that the patient should have received additional follow-up, through referral to a surgeon for consideration of biopsy of the mass. The Plaintiffs’ experts opined that the patient’s life expectancy is well less than ten years.
Finally, the Plaintiffs argued that the mass on the medial side of the nipple, and the cancer on the lateral side, were in fact the same process: it had simply grown under the nipple over the six month time interval.
Experts for plaintiffs and defendants all agreed that the patient suffered a form of breast cancer that was extremely unlikely to occur in her age group and was invisible radiographically. Also, they all agreed that this type of cancer is extremely difficult to palpate.
With HCWB’s Harris and Simpson at the helm, the Defendants and their experts denied the validity of the Plaintiffs' experts’ opinions on any need for further follow up or a referral to a surgeon.
Defense experts explained that cancer does not get up and move to another location in a breast, but instead spreads to new locations while never leaving its point of beginning. Harris and Simpson also provided oncology witnesses who testified to a better prognosis for the patient's life expectancy based on statistical models from multiple sources.
However, the keys to the defense were the strength of the testimony of the physicians’ assistants regarding their care, and the fact that the lump examined had come and gone in one week. Also of significance were the diagnosing surgeon's records, which supported the argument that these processes occurred on separate sides of the same breast.
HCWB presented a defense theme focused on the patient experiencing benign fibrocystic changes for which she was appropriately examined on one side of her breast, and unfortunately having a radiographically invisible and difficult to palpate cancer developing on the other side of her breast.
HCWB recognized that from a litigator’s point of view, one of the biggest perceived obstacles to a successful defense of the case was sympathy for the Plaintiffs. The patient was young, had three young children, and both she and her husband were very nice people. It was a sad situation.
To combat emotions with facts, the Defendants argued, and the Court allowed, multiple motions in limine to prevent the introduction of evidence regarding the cancer therapy that was unavoidable no matter the date of diagnosis of the cancer. This narrowed the Plaintiffs’ arguments; now, they centered around the reduced chance for the patient’s long-term cure and her reduced life expectancy.
North Carolina law strongly supports the validity of "cancerphobia" as an element of damages in a delayed diagnosis case.
After hearing all the evidence over the three week trial, the jury accepted the Defendants' explanation that the cancer was not yet diagnosable when the initial examinations were performed. A unanimous verdict was returned, finding no negligence by any of the Defendants.
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HCWB’s Creech and Salsman Win Big
In the second case, HCWB’s David Creech teamed with Jay Salsman to successfully defend an emergency room physician in a wrongful death action.
Background
In this case, the decedent presented to the emergency department with complaints of chest pain, which had been ongoing for approximately 12 hours. The patient related that he had also been coughing and wheezing for the past several days.
A history was taken. A physical examination was also performed, and tests were made. After the examination, reviewing the history, and evaluating the patient’s chest x-ray, EKG, and cardiac enzymes, the defendant physician diagnosed the patient with bronchitis and chest wall pain.
Tragically, about two hours later and while awaiting discharge, the patient suffered a fatal cardiac arrhythmia, in the absence of a clot or myocardial infarction. A lawsuit for wrongful death was filed by the patient’s loved ones under North Carolina’s Wrongful Death law.
The trial
The Plaintiffs contended the patient’s presentation, coupled with a history of smoking and questionable family history of heart disease, required that the patient be placed on a continuous cardiac monitor and admitted to the hospital for further observation. Their experts argued that if the patient had been placed on a cardiac monitor, the arrhythmia would have been detected and resuscitative efforts would have been successful. He would not have died, they argued, if a monitor had been used.
HCWB mounted a defense where experts argued, along with the defendant physician, that the patient’s presentation was not indicative of a cardiac event. Therefore, the defendant physician’s diagnosis was reasonable. There was no need to place the patient on a cardiac monitor, or to admit him to the hospital.
Additionally, argued the defense, even if the Plaintiff had been on a cardiac monitor and the arrhythmia detected, resuscitative efforts likely would have still been unsuccessful. The monitor would not have prevented the death.
After three weeks of trial, and on the third day of deliberation, the jury returned a unanimous finding no negligence by the defendant physician.
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Other Notable Victories
HCWB attorneys C. David Creech and Jay C. Salsman received a defense verdict in Pitt County on behalf of a lawn maintenance corporation. The Plaintiffs alleged that the Defendant negligently created a dangerous condition causing the Plaintiffs’ injury. The jury returned a unanimous verdict finding no negligence.
HCWB attorney Jay C. Salsman won his first solo jury trial in Carteret County in August 2007. Salsman represented a Plaintiff insurer in a subrogation action related to a collision between a farm combine operated by the Plaintiff’s insured and an automobile operated by the Defendant. HCWB attorney Salsman recovered $50,000 on behalf of the Plaintiff insurer.
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HCWB Welcomes Two New Team Members
Harris, Creech, Ward and Blackerby welcomes attorneys Michael S. Rainey and Peter S. Moeller to the team. Michael joined the firm in September 2007 after graduating cum laude from the Norman Adrian Wiggins School of Law, Campbell University, Buies Creek, North Carolina. Peter joined HCWB in December 2007 after relocating back home to New Bern. Peter practiced for two years in Miami, after graduating from the University of Miami School of Law in 2005.
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N.C.Business Legal Elite Includes 4 HCWB Lawyers
Congratulations to Thomas E. Harris, C. David Creech, Thomas M. Ward and W. Gregory Merritt for being named in North Carolina Business Legal Elite for 2008.
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N.C. Super Lawyers Includes 3 HCWB Attorneys
Congratulations to Bonnie J. Refinski-Knight, Thomas E. Harris and C. David Creech for being named among the top 100 North Carolina Super Lawyers for 2008.