Six Years Later Outbreak Suits Linger

By Walter F. Roche Jr.

As the sixth anniversary of a deadly fungal meningitis approaches dozens of victims are still waiting for a final verdict in suits brought against the clinics where they were injected with a highly contaminated steroid.
In Indiana alone some 77 victims await the outcome of suits which already made their way to that state's highest court.
"I'm sick of it," said Jack Pavlekovich of South Bend, one of the 77 represented by Indiana attorney Doug Small.
Pavlekovich, whose 35 year career in law enforcement ended when he was stricken with fungal meningitis in 2012, said the ordeal already has "taken six years out of my life."
"They ruined me. They ruined my family. I can't walk more than five yards at a time," he added.
Small, who has suits pending against two Indiana clinics, said he just filed a motion seeking summary judgment on some of the issues in the case of one clinic. He said a parallel motion is being prepared in the suit against the other clinic.
Indiana was one of the hardest hit states in the outbreak which eventually sickened some 778 patients, killing at least 76 of them.
Indiana had 93 victims sickened and 11 deaths. Neighboring Michigan had 204 cases and 19 deaths. Other hard hit states included Tennessee, Virginia and New Jersey.
In Michigan victims won a $10.5 million victory from one clinic, but another suit brought in behalf of 170 victims against three physicians resulted in a not guilty verdict.
Victims also have won substantial settlements against health care providers in Virginia, New Jersey and Tennessee.
But even those awards and the settlement in a related bankruptcy case have often provided too little too late.
Pavlelovich said he was forced to file for bankruptcy following an avalanche of medical bills.
The awards or settlements have been reduced by claims from Medicare, Medicaid and insurance companies along with attorneys fees and expenses. Depending on the state where the cases are filed, attorneys fees can eat up as much as 45 percent of any award.
Small said his cases ended up in the state Supreme Court which decided that the claims would be considered under the state's medical malpractice law and not as negligence cases.
He said that while the malpractice law generally favors medical providers, it could ultimately provide for a greater recovery "for the group of all plaintiffs."
Attorneys for the two health providers, the South Bend Clinic and OMSC (Orthopedic and Sports Medicine Center of Northern Indiana), did not respond to requests for comment.
Pavlekovich, meanwhile, despite needing to use a walker, is getting ready for a move to Wisconsin. But he already has learned that having filed for bankruptcy created yet another headache.
"It was hard to get a mortgage," he said.
Contact: wfrochejr999@gmail.com










Walter,

We represent 77 individuals who have asserted claims against two clinics here in northern Indiana, OSMC and the South Bend Clinic.

A big part of our delay has been the need to determine whether these cases were to be governed under Indiana general negligence law or medical malpractice statute. That issue went all the way up on appeal to our Indiana Supreme Court. The court affirmed the decision of the trial court that these cases are governed by our malpractice statute.

We just filed a motion for partial summary judgment against OSMC and will be doing the same on a motion against the South Bend Clinic yet this month. A copy of the motion filed against OSMC is attached.

The clinics or their insurers have rejected settlement overtures to date.

I have been taking the lead on these cases, though there are other attorneys in Indiana with claims. They include Rick Morgan and Vincent Campiti here in South bend. Attorneys in Indianapolis handling some of the cases here in the North and cases against clinics in southern Indiana include James Piatt, Robert Dassow and Ned Mulligan.

Doug Small
Foley & Small
1002 E. Jefferson Blvd.







There is both good and bad. The procedures under our medical malpractice act favor the healthcare provider typically. On the other hand, we have the opportunity for a greater recovery under the Act for the group of all plaintiffs. The defendant, OSMC/ASC, had general liability insurance coverage of only $5 million for coverage year 2012, when the outbreak occurred. Under the Act, each of our clients has a possible available recovery of up to $1,250,000, the liability claim limit for each claim under the Act, and would not be subject to the $5 M limit for all claims paid under OSMC’s gen liab insurance coverage.