In February 2015, a 44 year old man was pulled over by an Iowa State Trooper for speeding. As the State Trooper was writing the ticket, his vehicle, left un-parked, rolled down a slight decline and rear ended our client’s vehicle. No noticeable physical damage was done to either vehicle. The impact was recorded on the Trooper’s dash cam and the defense experts said there was no way our client was hurt by the impact. We had to reconstruct what happened.
As it turned out, the client was looking down at the time of impact signing his warning ticket. Despite looking fine on the dash cam and returning to work, the following day he went to his doctor because he was experiencing pain and tingling in his arm. He was diagnosed with a cervical muscle strain and mild paresthesia. The radiating pain continued so an MRI was ordered showing “very advanced degeneration”. He had an anterior cervical discectomy surgery and suffered a complication of right vocal cord paralysis, a known but rare complication of the surgery. While his voice got better, he now suffers with less breathing capacity and swallowing difficulty.
The State of Iowa retained expert neurosurgeon Dr. Todd Ridenour from Davenport, Iowa and physiatrist Dr. Joseph Chen from University of Iowa Hospitals & Clinics who gave opinions that the client’s on-going neck and back complaints were caused primarily by preexisting degenerative changes and/or the client’s active lifestyle, which included horseback riding. Just three weeks before trial, counsel for the State of Iowa disclosed a conglomeration of the client’s Facebook posts taken after the first crash with the police cruiser showing the client horseback riding, ziplining, and boating. The Facebook posts predated Trial Lawyer’s for Justice’s involvement in the case. Further complicating matters, the client was involved in two subsequent motor vehicle collisions. After an October 2, 2015 collision, the client complained of neck pain, and following a third collision on February 9, 2017, which was a high speed collision, the client received emergency medical care for neck pain following the third collision.
Our client continued working full time to take care of his family so there was no wage loss claim. We also waived past medicals of approximately $50,000. The Friday before trial was set to begin in Linn County District Court, the State of Iowa offered $975,000 to settle the case. Prior to TL4J being brought into the case, the State of Iowa made no offers to settle the case despite repeated demands.
Trial Lawyers for Justice was represented by Courtney Rowley, Nicholas Rowley, Dominic Pechota, and Matt Reilly.
The Food and Drug Administration (FDA) announced this week that it would be banning the use of electric shock devices. These devices are often utilized to correct self-harming or aggressive behavior.
Trial Lawyers for Justice (TL4J) attorney Ben Novotny was the lead attorney in a case against the Judge Rotenberg Educational Center in Canton, Massachusetts, which the FDA ban is specifically targeting. The practice of electric shock devices has been in use at this facility for decades on both children and adults who have intellectual or behavioral problems and disabilities.
To learn more about the practice of utilizing these shock devices and when it is used, watch the following video from FOX25 Boston:
The family of a Pierre man is suing Walgreens, claiming its pharmacy mishandled a heart medication that caused an overdose that led to his death last year.
The lawyer for the family of John Stengle, 71, and a longtime advocate for the disabled, filed a complaint Dec. 10 in South Dakota Circuit Court in Pierre. No monetary amount is mentioned in the court documents except the statutory minimum of $75,000. Attorney Ben Novotny of Trial Lawyers for Justice in Decorah, Iowa, said the family is seeking about $10 million.
On Jan. 10, Walgreens asked a judge to move the case to federal court, arguing it has “original jurisdiction,” based on federal law.
Stengle’s widow, Karen, and their daughter, Nicole who lives in the Twin Cities, claim that a prescription for John Stengle for Amiodarone, a drug used to counteract serious arrhythmia of the heart (when the heart beats out of rhythm), was mishandled by Walgreens.
The drug was prescribed — correctly — to Stengle by Sioux Falls cardiologist Dr. Riyad Mohama on Feb. 28, 2018, Novotny says.
The doctor’s notes show he prescribed a 90-day regimen of the drug for Stengle, starting at two weeks at 800mg each day, then down 200mg every two weeks, “tapering off” the drug, and including a refill part way through the 90 days, Novotny told the Capital Journal on Tuesday.
But Novotny said the pharmacist and/or others at Walgreens, gave Stengle too many pills, did not include the fourth two-week period of the regimen, and restarted the regimen part-way through, going back up to the high levels of the drug, which can be toxic if not ingested correctly.
“It’s a tragic thing,” Novotny told the Capital Journal. “People like Mr. Stengle go home and take it exactly as they are told to do — his wife was actually helping him dispense the medication — and little do they know while they are doing that, he’s actually poisoning himself.”
Amiodarone is for serious heart arrhythmia and has possibly life-threatening side effects, experts say.
“It’s one that should be prescribed only with extreme caution,” Novotny said. “It’s a good drug when it’s used appropriately, but can be very bad when it’s used inappropriately.”
Novotny said the family is suing Walgreens and its pharmacy, but not the heart physician that prescribed the drug. The Stengle family alleges Walgreens improperly instructed Stengle and, effectively, overdosed him on the drug, leading to this death.
Stengle’s widow and daughter want to make sure not only their losses are addressed but also “to try to make sure things like this don’t happen to other people,” he said.
Walgreens’ attorneys in Minneapolis did not return calls for comment Tuesday.
Walgreens has also not yet responded to the details alleged in the Stengles’ complaint in state court, while currently seeking a change of venue to federal court.
According to the Stengles’ complaint in state court:
The drug is metabolized by the liver and if “the patient suffers Amiodarone toxicity, vital organs such as the liver, lungs and kidneys may become irreversibly damaged, leading to death.”
Dr. Mohama prescribed a 90-day regimen for Stengle to take the pills at a stepped-down level: two weeks of 800mg; two weeks of 600mg; two weeks of 400mg and two weeks of 200mg.
In its dosage instructions to Stengle, Walgreens did not include the two-week period of 200mg level, which the complaint calls “negligent conduct.”
“Walgreens then filled the prescription with approximately 500 Amiodarone pills, rather than the correct number of approximately 126 pills,” and “refilled the prescription long before the pills ran out” and “restarted the entire heavy-tiered dosing…,” according to the complaint.
“Mr. Stengle’s body, over the course of several months, suffered from Amiodarone toxicity. Over time, Mr. Stengle’s vital organs began to shut down, and he eventually suffered from multi-organ failure.”
“Mr. Stengle suffered a long, painful death witnessed by his wife and his daughter. On Feb. 1, 2019, Mr. Stengle suffered a premature and preventable death.”
Before his death, he “endured severe conscious mental and physical pain and suffering,” for which the Stengles seek damages.
His “untimely” death also deprived his estate “of expected accumulations had John Stengle lived to his normal life expectancy.”
Stengle’s widow and daughter say they suffered the loss of his care and support as well as the expenses of his funeral. Stengle’s funeral was held at Lutheran Memorial Church in Pierre.
According to his obituary published in the Capital Journal, Stengle was born in Des Moines and grew up in Sioux Falls. He lived in Watertown, South Dakota, where he met his wife and their daughter was born. He spent his latter years in Pierre working as an advocate for people with disabilities, as director of The Arc of South Dakota. He was invited to the White House in 1990 to witness the signing of the Americans with Disabilities Act. In 2001, he was hired as executive director of the Housing and Redevelopment Commission of Pierre.
“He was a good, good dude,” Novotny said. “He played guitar in his church band every week. He had a lot of life to live and to give to his community and to his family going forward.”
An Iowa family is suing a Nebraska-based nonprofit after a nonverbal 14-year-old died in the organization’s care and an autopsy found possible, but unconfirmed, signs of sexual abuse.
The lawsuit raises issues with the staffing, communication and training at Mosaic — a residential medical care company with a location in Forest City — and the lack of action by health care professionals leading up to the 2018 death of Samantha Wellik.
Wellik, diagnosed with multiple conditions including asthma and cerebral palsy, was pronounced dead Jan. 23, 2018, after several Mosaic staffers raised concerns about changes in her health, according to the lawsuit and a report from the Iowa Department of Human Services.
Samantha Jayne Wellik, 14, shown in an undated family photo. Wellik, who was diagnosed with cerebral palsy, died in January 2018 while living at the Mosaic care facility in Forest City. Her family is now suing the organization and several employees who worked with “Sami.” (Photo: Provided photo/Special to the Register)
That DHS child abuse report shows that at least three layman-type employees told supervisors that Wellik needed medical attention late on Jan. 22. An on-call nurse practitioner told workers to give the girl Tylenol and water and that she’d check on the teen in the morning.
A Mosaic employee sat in the girl’s room that evening, doing homework and talking on her cellphone, the lawsuit states. That worker was not trained to do CPR once she noticed breathing problems.
Investigators, after interviewing those working while Wellik died, determined the girl was denied critical care that night, according to the DHS report. Ben Novotny, an attorney with Trial Lawyers for Justice who is representing the Wellik family, said Wellk’s death was one of the worst neglect and abuse cases he’d seen.
“(Her death) was heart-wrenching, especially when you think that things are fine and then to find out they weren’t fine for quite some time,” Josh Wellik, Samantha’s father, told the Register. “It’s really hard when you have a child that cannot communicate, so she can’t tell me, ‘Dad, I’m hurting,’ or, ‘I don’t feel good.’
“To me, there should have been some way of the staff knowing that she wasn’t well for several months so something could’ve happened to prevent the outcome.”
Wellik died from “complications of ruptured bowel in the setting of Fournier gangrene,” according to the medical examiner’s report. The manner of death was undetermined.Get the News Alerts newsletter in your inbox.
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The lawsuit seeks punitive damages from Mosaic. A spokesman for the organization said Mosaic, which says it supports 4,500 people in 11 states, was reviewing the suit, but could not yet comment.
Josh Wellik said it “blew him away” to learn his daughter had died. Samantha had lived at Mosaic for more than five years, and he was not aware of any pressing medical concerns.
He said the grief of losing his daughter was compounded by the medical examiner’s finding that the girl had injuries consistent with sexual abuse. The examiner noted the damage could have been done by “forceful” enemas, though fluid that appeared to be semen was also found in the girl, Wellik was told.
“I was continuously following up once I heard (they were doing a) rape kit,” he said. “So … then they said there was a trace of semen but there was no DNA found, so they couldn’t come to a conclusion that that’s what it was.”
The state medical examiner’s office did not respond to questions about the possibility of sexual assault.
What happened the night she died?
Numerous Mosiac employees were in contact about Samantha Wellik’s condition late on the night of Jan. 22 and into the early morning hours of Jan. 23, according to a DHS Child Abuse Assessment Summary. Wellik lived with another nonverbal resident at 105 Kelly’s Court, an intermediate care facility in Forest City.
The DHS report details escalating concerns raised by several employees over seven hours, beginning at about 10:30 p.m. on Jan. 22. Those employees said they initially observed and reported that Wellik had severe diarrhea, was breathing differently and appeared to be in pain or uncomfortable.
One employee later noticed strange noises from Wellik’s abdomen as the girl moaned and screamed and had bowel movements for 45 minutes straight. By 3 a.m., the girl was “panting” and restless. Another employee reported that the girl’s stomach was hard and her toes were blue.
But despite being contacted by caregivers and supervisors throughout the night, the on-call licensed practical nurse (LPN) did not attend personally to Wellik. Instead, over numerous calls, the nurse instructed employees to give the girl Tylenol, to give her water and tuck her in, and to apply calming cream to soothe Wellik’s pain and bleeding from her repeated bowel movements. The nurse said Wellik was probably getting sick and that she would check on her the following day.
Wellik’s monitor in those early morning hours noticed when the girl’s breathing slowed, but she thought the girl was at last settling down and going to sleep. The employee watched as Wellik gasped, then exhaled.
“She was watching her breath and then there was no breath out,” according to the DHS report.
The girl stopped breathing around 6 a.m., and the panicked employee called a coworker and then the on-call nurse, who told her to call 911, DHS said in its report. Shortly after, the nurse and other supervisors ran to Wellik’s room but were unable to revive her.
The nurse told investigators that Wellik had a history of issues with bowel movements and did not have a fever, so she did not think the teen needed immediate medical attention, according to the DHS summary.
She also said her instructions throughout the night were standard for someone who didn’t have a fever and was “fussy,” “irritable” and “stuffy.” A program manager told authorities that when she saw Wellik, the girl was whining but had no fever, vomiting or labored breathing.
Samantha Jayne Wellik, 14, shown in an undated family photo. Wellik, who was diagnosed with cerebral palsy, died in January 2018 while living at the Mosaic care facility in Forest City. Her family is now suing the organization and several employees who worked with “Sami.” (Photo: Provided photo/Special to the Register)
DHS: Teen was denied critical care
In its report, DHS found Mosaic at fault in Wellik’s death by not providing critical care. It identified staffing shortages and a lack of training as contributing factors.
But DHS also said the medical staff that treated Wellik in the months before she died —as well as workers changing and bathing her — should have noticed a prolapsed anus and trauma to the vagina, as well as intense “diaper rash.”
Novotny says that experts he’s consulted say that the infections that killed Wellik were a product of fissures near her bottom. The tearing allowed stool to get into her body cavity, which caused a deadly case of Fournier’s gangrene. The infections were present for as long as two months, the attorney was told.
“My main feelings were, I guess, grief and sadness, because I really didn’t know what happened,” Josh Wellik said. “That was probably the toughest part of it; the month of waiting to finally find out it was something that, I feel, could have been prevented.”
High turnover, sleeping on the job
On the night of Jan. 22, 2018, and into the morning hours, snow moved across northern Iowa. One Mosaic supervisor told DHS that the facility was understaffed that night, and the weather further threw off workers’ schedules.
Issues of understaffing were rampant at Mosaic. The organization was forced to close two of its Forest City homes later in 2018 because it wasn’t able to staff them properly, according to a Mason City Globe Gazette story.
Mosaic did not respond to questions from the Register about staffing levels.
A Mosaic spokeswoman told the Gazette in December 2018 that the lowest number of open positions the company had in Forest City was at about 50. However, in recent months, there have been close to 70 open positions in Forest City.
In its report, the DHS called Mosaic “understaffed” and its employees “undertrained.”
“At the time when I (found out about Mosaic), things were a lot different than they were when (Sami) passed,” Josh Wellik said. “I got to know the old manager and the people who worked there, but when she passed, it was not the same staff.”
Wellik said some people who worked with his daughter reached out after she died, but he was upset that administrators did not communicate with the family, which lived nearby, more.
Many employees who help feed and clean Mosaic residents are not medically trained, Novotny said.
Some employees told DHS investigators that Mosaic’s daily operations were fine; others were frustrated by the difficulties in contacting medical staff, the constant understaffing and the general lack of training for lower-level workers.
One of these employees told investigators that she did not know what a CPAP machine was or that Samantha Wellik used the device for her asthma. The machine was later found in a closet.
“This place is notorious for being understaffed, and this night was one of those times where they’re understaffed,” Novotny said. “One person said they were understaffed because they’d fired a bunch of people because they were sleeping on the job.”
A supervisor told investigators that several changes were made because of employee conduct, including napping while on shift. An employee said two people typically would work one house during third shift, but fewer were available because workers had been fired and not yet replaced.
Josh Wellik said a manager he liked left Mosaic a couple of years before his daughter died, and that since then, there was a “revolving door” of new employees.
“Once she left, it just seemed like there was a lot of turnover, as far as the staff,” he said. “It didn’t really have a family-friendly or home environment toward the end there. There just wasn’t a lot of consistency.”
Sexual abuse ‘cannot be ruled out’
Questions about staffing and protocols aside, Josh Wellik said the most upsetting aspect of his daughter’s treatment and death is the possibility of sexual abuse.
“Originally, they told me they were doing rape kits, so then, of course, as a father, anger sets in,” Josh Wellik said. “It was inconclusive, but to even know that there was a chance that something like that could have happened, that’s enough to wreck a father.”
The doctor who performed the autopsy noted “apparent trauma” to the 14-year-old’s vagina and damage to her rectum. Her hymen was “not visible,” according to the report.
The cause of the injury is not known, but “a component of trauma (e.g. sexual assault and/or forceful enemas) cannot be excluded,” according to the autopsy.
Samantha did regularly receive enemas, the medical staff told investigators.
But that would not explain the material believed to be semen found in the girl’s body. Wellik said he was told by a person in the medical examiner’s office that substance appeared to be semen, but no DNA was detected.
No criminal charges have been filed against Mosaic in Winnebago County, according to online court records. Novotny said his client is hopeful the lawsuit can bring accountability to Mosaic, among other things.
“You can’t change the past. So he really has three things he wants to accomplish,” Novotny said. “No. 1, justice for his daughter; No. 2, making sure this doesn’t happen to anybody else; and No. 3, seeing if the DA will take a second look at this.
“If we need to protect anyone, this is the patient population we need to protect.”
Zaw Zaw’s dream of having more kids has disappeared.
The 41-year-old man — dad to three “delightful” children, according to his attorney — is not currently able to father any more children after Dr. Kevin Birusingh, then of the Iowa Clinic, performed a vasectomy when the patient thought he was getting a circumcision. A jury has found the clinic doctor mostly at fault.
“I think it came across to the jury that he was just devastated by what had happened here,” Zaw’s lawyer, Marc Harding, said Thursday. “And Dr. Birusingh and the people that he was working with over at the Iowa Clinic just didn’t really care.”
Zaw, who came to the U.S. as a refugee four years ago, was referred to the Iowa Clinic for a “routine and ritual male circumcision” in December 2015, according to the lawsuit filed by Harding. The Iowa Clinic provides the bulk of urology services in the Des Moines area, including procedures performed at the UnityPoint and Mercy hospitals.
But the January 2016 surgery instead ended the man’s ability to reproduce. Zaw — with help of Harding and attorney Ben Novotny — sued the Iowa Clinic and Birusingh. He was awarded a $2 million judgment, court records show. Jurors decided Zaw was 30% responsible, which will reduce the award.
Charlie Wittmack, an attorney for Birusingh, said in a written statement that “it is undisputed that Mr. Zaw Zaw signed two written informed consents and completed four consultations prior to having the vasectomy performed. Mr. Zaw Zaw also informed a separate physician’s assistant that he had scheduled the vasectomy in the days before it was performed.”
“Because Mr. Zaw Zaw does not speak English, both written informed consents and each of the four consultations were translated by two separate interpreters,” Wittmack said.
Harding said Iowa Clinic officials have also blamed Zaw for undergoing the vasectomy or not stopping the procedure.
The attorney said he rarely speaks to his client without someone to interpret. An interpreter was used in court. But a physician’s assistant claimed Zaw was fluent in English and mentioned getting a vasectomy, Harding said.
“I think there’s probably a fair number of people in the United States that English is their native language, and if you said ‘vasectomy,’ they wouldn’t know what you were talking about,” Harding said.
Besides, Harding says, it was up to Birusingh to make sure that the Myanmar native understood the procedure he was undergoing. Moreover, documents from the doctor who referred Zaw to the Iowa Clinic show he was seeking a circumcision, Harding said.
Birusingh is no longer at the Iowa Clinic; he was fired last year amid allegations that he and two other urologists planned to split off and start a new practice.
“It was a written referral that in four places said that it was a circumcision, and according to the records from Des Moines University, it was faxed over to the Iowa Clinic, which would have been for Dr. Birusingh,” Harding said.
Zaw testified that he had a copy of that document and he gave it to an interpreter, who delivered it to the front desk at the clinic. It was then given back to Zaw.
“What Dr. Birusingh said (in testimony) was, ‘I never saw it. I never read any of those,’” Harding said. “And basically, somehow they got it entered as being a vasectomy instead of being a circumcision.”
The jury found Birusingh was 70% at fault in the case, according to the verdict form filled out by the jury foreperson. Jurors awarded Zaw $2 million, or about $1.4 million after accounting for the fault assigned to Zaw.
An Iowa Clinic spokeswoman in an email pinned the blame squarely on Birusingh.
“We care about the well-being of all our patients,” a clinic spokeswoman wrote in an emailed statement. “In terms of specific detail on the care provided or offered to the patient, we don’t discuss that out of respect to the patient and privacy laws.”
A court verdict form lists Iowa Clinic as a defendant in the case, but the organization’s name does not appear in any of the eight questions answered by jurors about blame in the case.
The defendants, including both the Iowa Clinic and Birusingh, have filed a motion in court to stay the verdict.
“Defendants will file post-trial motions on several grounds, including but not limited to, that the verdict is inconsistent, excessive and unsupported by substantial evidence in the record,” the motion states. “Given the size of the verdict and the necessity of post-trial proceedings, Defendants request the Court stay entry of judgment until such time as the Court rules on Defendants’ post-trial motions.”
Harding said he is working on a response to the motion.
Attorneys at Finley Law Firm, which is representing the defendants, did not respond to a request for comment.
The payment to an Iowa Clinic patient is at least the second in as many years awarded by central Iowa jurors. A Polk County jury last spring awarded a Panora man more than $12 million after he underwent debilitating prostate cancer surgery before learning he didn’t have cancer.
Zaw plans to get the vasectomy reversed, Harding said, but there’s no guarantee he will be able to grow his family. Mayo Clinic reports that pregnancy rates after reversals range from 30 percent to 90 percent, but the longer a patient waits, the lower the success rate.
The circumcision was done at a differently facility, his attorney said.
“I’m sure that if Zaw Zaw had it — if he could wave a magic wand — I think he’d much rather been able to have had additional children than to have money, but that’s the only thing that we can do here,” Harding said. “I mean, (money is) a poor substitute, but it’s the only substitute we have.”
LOS ANGELES, CA, August 19, 2019 —A Los Angeles, California jury awarded $15.45 million to T.J. Simers in a lawsuit he filed against his previous employer, The LA Times, for violating his civil rights and wrongfully discriminating against him based upon his age and disability.
Simers previously won a $7.1 million verdict against the LA Times in 2015, however the LA Times convinced the court to set the verdict aside based on technicalities.
In March 2013, after 23 years of loyal service to the LA Times, TJ Simers suffered what was thought to be a mini-stroke, and he subsequently was discriminated against due to his disability and his age. His employer of 23 years kicked him when he was down. In November 2015, a California jury awarded Mr. Simers a $7.1 million verdict against The LA Times, however The LA Times filed new trial motions to set aside the verdict and won, resulting in a new trial on damages.
In August 2019, trial lawyers Nick Rowley, Courtney Rowley, and Astineh Arakelian re-tried the case against The LA Times, and this time the jury returned a verdict of $15.45 million in non-economic damages.
“The Los Angeles Times and it’s defense attorneys wanted a new trial because they did not like the last verdict of $7.1 million four years ago,” said trial lawyer Nick Rowley,
who was one of the lead trial lawyers on the case. “As my granddaddy always said, ‘be careful what you wish for’, as now with prejudgment interest and attorney’s fees, The LA Times will owe over $22 million.”
“My wife Courtney and I are incredibly proud of the jury but most importantly of T.J. Simers, his wife, and his family for never giving up on their belief in civil justice and the value of civil rights,” added Rowley. We tried the case together with Astineh Arakelian and our dear friends at the Shegerian Law Firm and are really thankful to have been brought into the case for trial.
