Medical Malpractice Informations

GI Joe Star Filing Medical Malpractice Suit

2009-08-14T12:26:00.000-07:00

GI Joe’s General Hawk, a.k.a. Dennis Quaid, has filed a lawsuit after his twin children experienced an accidental overdose. Sadly, he is not the only celebrity to bring charges of medical malpractice.

GI Joe’s General Hawk, a.k.a. Dennis Quaid, has filed a lawsuit after his twin children experienced a massive overdose of the drug Heparin because the manufacturer, Baxter Healthcare Corp. (BHC), allegedly packaged the dosages wrong. BHC manufactures products to aid in the treatment of “hemophilia, immune disorders, infectious diseases, kidney disease, trauma, and other chronic and acute medical conditions.” According to recent reports, the Quaids are suing BHC for medical malpractice.

Dennis Quaid

Unfortunately, Quaid is not the only celeb who has experienced the devastating affects of medical negligence. Rapper Kanye West lost his mother in 2007 after a plastic surgery procedure led to her death. Dr. Jan Adams, the surgeon who performed Ms. West’s operation, has since surrendered his medical license, and has since come under scrutiny for two criminal convictions.

Donda West, Kanye West's mom allegedly a victim of medical malpractice

Dr. Adams has been arrested multiple times in the past on DUI charges and most recently spent time in court when it was discovered that he had not paid judgment for a previous cosmetic surgery malpractice case. The doctor continues to proclaim his innocence with regard to Donda West’s death, and the California Medical Board is still investigating the case.

Other examples include the medical malpractice lawsuit filed by the wife of former Dallas Cowboys running back Ron Springs against two Texas doctors she accuses of letting him slip into a coma, leaving him mentally and physically incapacitated, and a case brought by Ed McMahon when doctors failed to take necessary x-rays and diagnose a neck fracture after he fell at a friend’s residence.

Although these cases are all unfortunate, state medical boards and credentialing organizations play a key role in ensuring that practitioners are well-trained and cognizant of best practices. Consumers considering a cosmetic or reconstructive surgery procedure should look for a doctor who is board certified by the American Board of Plastic Surgery to ensure they get the highest quality of care by a doctor who has specific training in these types of procedures.

Reported by The Plastic Surgery Planet

Hospital Horror Cover Ups: Hospital Records Were Sometimes Falsified to Cover Up Medical Malpractice

2009-07-30T13:00:00.000-07:00

Last Sunday, NY Daily News posted an article about the cover ups made by three city-run hospitals in New York City about the horrors happened to some of their patients in its care. The three hospitals named are Bellevue Hospital, Woodhull and Jacobi. NY Daily News found out in the said investigation a lot of medical malpractice done by their medical professionals that could have been avoided.

Below is the full NY Daily News report:

Some staffers at city-run hospitals have practiced a very nonmedical skill — fiction writing.

Doctors, nurses and support staff have made false entries in hospital records to cover up medical screwups, a Daily News investigation found.

Records sometimes lacked crucial data or were missing completely, making a thorough investigation impossible.

Again and again, workers at city-run hospitals faked records to cover up incidents or claimed they couldn't find data when investigators came knocking.

Between 2004 and September 2008, the state issued 16 citations for incomplete, altered or missing medical records, a News analysis of hundreds of pages of internal documents found.

BELLEVUE HOSPITAL
Records were sometimes ludicrous. At Bellevue, for instance, medical reports listed a psychiatrist performing surgery.

Sometimes, as in the case of patient Alfred Scott, they were anything but funny. Scott showed up at Bellevue Sept. 8, 2005, diagnosed as having suffered a "cardiac event." A fourth-year med student placed an IV in his left arm.

Problem No. 1: Students are not allowed to administer IVs.

Over the next two days the medical student and several nurses made apparently fictional entries in medical records.

The student claimed Scott's arm was fine. One nurse wrote that the arm's skin was "warm to touch." Another says there were "no signs of inflammation."

Problem No. 2: Scott's arm was covered from knuckles to elbow with a material called Kerlix which made examination impossible. When the Kerlix was removed after two days, staffers found Scott's arm was "blistering," his left hand "cool to touch and pulseless."

Investigators concluded "the student likely did not examine the left arm" and that the signs of problems "must have been present during the time that nursing staff documented intact skin and circulation."

Surgeons determined the IV made Scott's arm "not salvageable." Three days after surviving a heart attack, Scott had his left arm amputated at the elbow.

Besides the fictional notes, hospital records make another false claim: that a licensed medical doctor administered the IV.

Scott died four months later. His widow, Gwendolyn, sued, saying the amputation contributed to his death. The hospital was fined $14,000, but the family was not told.

In a statement, the city Health & Hospitals Corp. confirmed "protocol prohibits medical students from starting IVs" and blamed the nurse for "mistakenly" thinking the med student was a resident.

Because of this incident, HHC banned using dressing that obscures an IV site and required nurses to check IVs every day.
WOODHULL HOSPITAL

The hospital turned over "corrected" records when investigators showed up to look into a March 2007 incident in which a 3-month-old infant died.

The infant arrived at Woodhull March 25 with difficulty breathing and spiking a temperature of 102. At the time the hospital relied on a doctor who specialized in cardiac care for children, but that weekend, the doctor was out of town.

Two pediatric residents who weren't supposed to examine critical care patients without direct supervision did the exam. They recommended continuous nebulizer treatments, but they did not give this information to the attending physician.

The attending first learned this eight hours after the child arrived, when he examined the infant for the first time and recommended "close observation."

After this, the report notes, the infant began suffering "severe respiratory distress," and by 8 p.m. the hospital finally contacted the pediatric heart specialist.

That doctor recommended transferring the child to another hospital because he was out of town. At 2:15 a.m. the next day the child was transferred "with spastic tremors of face and arms." The child died within 24 hours of the transfer.

Though hospitals are supposed to report incidents like this within 24 hours, the state did not learn of this incident for a month.

Investigators found the hospital's medical files did not identify an attending physician on duty when the infant was there. The next day, the hospital produced a "corrected" record naming the doctor on duty.

The hospital insists it always had adequate doctors on hand but was cited for numerous violations, including failing to report the incident in a timely manner. It was fined $10,000.

JACOBI MEDICAL CENTER
In many cases, problems included simply losing medical records and failing to properly track patient care and status.

Jacobi Medical Center in the Bronx was cited on five separate occasions for these problems, records show.

On April 8, 2004, a woman delivered a stillborn infant at Jacobi. The state found key sections of her medical records missing.

The citation said the missing records made it impossible for the facility to properly review the care the mother was given prior to the stillborn birth.

HHC called this a case of "misplaced paper" that was eventually found.

In some cases, HHC hospitals take their time about investigating incidents.

Records show a Harlem Hospital Center patient died after staff failed to properly respond to repeated episodes of severe bleeding. Staff did not investigate the cause of the bleeding until at least 10 days after the problem began and had still not completed it when the patient died less than three weeks later.

Source article: NY Daily News

Additionally, there have been reports about a case of King County Hospital negligence mid of last year.

New Jersey Court Overturns $75M Malpractice Award

2009-07-27T12:24:00.000-07:00

The New Jersey Supreme Court has overturned one of the largest medical malpractice suit verdicts in state history.

Citing numerous trial errors and other problems, the justices reversed the $75 million in damages awarded to the parents of a boy who suffered brain damage as an infant when he was deprived of oxygen following surgery in 1998.

According to court documents, the child now suffers from significant intellectual, verbal and neuron motor deficiencies and requires constant care.

via Baslow's flickr

In the ruling announced Thursday, the justices said the Essex County trial jury was unnecessarily exposed to bias against medical professionals and Saint Barnabas Medical Center in Livingston during the jury selection process.

The case was remanded for another trial.

Source: ClaimsJournal.com

Huge Medical Malpractice Study: Liability Should Not be More Limited.

2009-07-24T12:24:00.000-07:00

via flickr*

Americans for Insurance Reform released a study earlier this week showing that in recent years, doctor premiums and medical malpractice claims have overwhelmingly dropped, while the profits of the medical malpractice insurance industry have soared. Significantly, the study concludes that placing further limits on the liability of negligent doctors and unsafe hospitals would be unjustifiable, and would put almost no dent in our country’s health care costs.

AIR’s report, True Risk: Medical Liability, Malpractice Insurance and Health Care, is by Gillian Cassell-Stiga and Joanne Doroshow of the Center for Justice & Democracy, and actuary J. Robert Hunter, who is Director of Insurance for the Consumer Federation of America (CFA), former Commissioner of Insurance for the State of Texas, and former Federal Insurance Administrator under Presidents Carter and Ford.

In describing the study’s findings, Hunter said, “Thirty years of inflation-adjusted data show that medical malpractice premiums are the lowest they have been in this entire period. This is in no small part due to the fact that claims have fallen like a rock, down 45 percent since 2000. The periodic premium spikes we see in the data are not related to claims but to the economic cycle of insurers and to drops in investment income. Since prices have not declined as much as claims have, medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years. -AIR

The findings apply equally to states that have placed major tort restrictions on victims of medical malpractice and to states that have not.

The study adds that because medical malpractice premiums amount to less than 0.5% of overall health care costs, with medical malpractice claims amounting to 0.2% (yes, these are tiny decimals) of health care costs, limiting liability any more will simply not have a significant effect on these health care costs. “If Congress completely eliminated every single medical malpractice lawsuit,” it says, “including all legitimate cases, as part of health care reform, overall health care costs would hardly change, but the costs of medical error and hospital-induced injury would remain and someone else would have to pay.”

All of this only confirms the position we’ve been taking, which is that removing or further limiting medical liability would mean robbing patients of the only meaningful check and balance they have on the impossible monstrosity of a system that American health care has become. Limiting liability is not a way to save the country money, and it’s not fair for patients who are wrongfully injured or who lose their lives due to negligence.

by Mike Ferrara via injuryboard.com

* Thomas Eakins - The Gross Clinic - 1889 - University of Pennsylvania
Eakins' famous portrayal of Dr. Agnew performing a mastectomy, The Agnew Clinic

"I'm Sorry" Policy Works for University of Michigan Health System

2009-07-22T14:42:00.000-07:00

It’s like a test to see who will blink first: patients, who are injured as a result of medical malpractice, want justice for the pain and suffering they endure, while hospitals and hospital staff are wary to utter the words “sorry” for fear that their apology will be mistaken for an admission of wrongdoing. However, Richard Boothman, a malpractice defense attorney and chief risk officer at the University of Michigan Health System, says a simple apology can go a long way in saving time, money, and suffering for doctors, patients, and the public.

Boothman calls it “common decency”, but when doctors admit mistakes it goes well beyond decency. It has also proven to be a shrewd business strategy, as Boothman has discovered: since implementing the “I’m sorry” strategy, malpractice claims against his health system fell from 121 in 2001 to 61 in 2006. Moreover, the backlog of open claims fell from 262 in 2001 to 106 in 2006 to 83 in 2007. The U of M Health System learns of medical errors from doctors, as well as patients and their lawyers, to which the university responds by conducting a peer review to see if there was an error and also to see if additional changes are needed to prevent the same mistake from happening again. Furthermore, health system doctors and officials offer to meet with patients and their families to explain why they felt a particular treatment was appropriate, and most importantly, to sometimes admit they made a mistake.

Evening sea

However, the “I’m sorry” policy does have its skeptics: Norman Tucker, a malpractice attorney, said that while he agrees that the school is fair in admitting when it makes mistakes, it also makes it more difficult in cases where the health system denies error. Furthermore, Matthew Gaier, the co-chairman of the New York State Trial Lawyers Association’s medical malpractice committee, says it is the right of injured patients to sue healthcare providers who make mistakes and to force them to open their internal records. Moreover, per a 2007 article in the journal “Health Affairs, 181,000 people are severely injured each year as a result of medical mistakes, but only 30,000 file legal claims. Most of those people don’t sue because they don’t realize they are victims of medical malpractice. In order for there to be a reduction in the number of future medical mistakes at hospitals and to improve the standard of care, it is important that there is transparency in sharing internal records. Unfortunately, sometimes the only way hospitals are willing to share internal documents is through a lawsuit.

Despite the criticisms, the “I’m sorry” policy seems like a step in the right direction. Notwithstanding my post from yesterday, Mr. Boothman genuinely wants to do the right thing by saying sorry when it’s appropriate and resolving claims early—saving money, time and emotional trauma for the injured party and medical staff when valid claims do occur. In fact, our office has had firsthand experience with Rick Boothman. Per our office’s experience, Boothman vigorously defends and rejects cases that he believes do not involve a breach of the standard of care, but he is also fair in settling valid claims early and fairly.

via injuryboard.com

The Bausch & Lomb Settlements of 600 Eye Fungus Lawsuits Amounting to $250M

2009-07-07T09:31:00.000-07:00

ROCHESTER, N.Y. (AP) -- Contact lens maker Bausch & Lomb Inc. had an overriding reason for going private in 2007: It wanted to handle a devastating recall of its flagship lens cleaner, its chief executive said, "without a lot of outside distraction."

Over the past year, away from the glare of public scrutiny, the optical products company has quietly settled nearly 600 fungal-infection lawsuits — with dozens more individual claims yet to be resolved. The cost so far: Upward of $250 million.

More than 700 lens wearers in the United States and Asia say they were exposed to a potentially blinding infection known as Fusarium keratitis while using ReNu with MoistureLoc, a new-formula multipurpose solution for cleaning, storing and moistening soft contact lenses.

Sometimes, the damage was irreparable. Seven people in Florida, Maryland, New York, Oregon, Tennessee and West Virginia had to have an eye removed. At least 60 more Americans needed vision-saving corneal transplants.

Shauna28

The U.S. Centers for Disease Control and Prevention confirmed 180 cases in 35 states from June 2005 through September 2006, when the agency's dedicated surveillance stopped, according to Dr. Benjamin Park, a CDC epidemiologist. CDC continued to hear of sporadic, unconfirmed cases in the months after MoistureLoc was withdrawn, Park said.

"Surveillance usually captures the tip of the iceberg and sometimes it captures a larger tip than other times," Park said in an interview.

Among out-of-court settlements reached in May was a potential bellwether case brought by Andrea Martin, a Broadway actress and comedienne whose eye was scarred. In Colorado, a corneal transplant ended a race-car driver's career. In Baltimore, a chimney-sweep business owner who lost an eye got hooked on painkillers.

"It left him with a chronic pain situation where at one point he had to go through drug rehab," said attorney Andy Alonso. "His business — handed down from generation to generation in his family — has fallen apart, his marriage has fallen apart and he now lives with his mother."

The culprit, an infection so rare that most eye doctors had never seen a case, somehow eluded MoistureLoc's disinfecting defenses. The outbreak appeared first in Hong Kong in spring 2005 and reached its peak in the United States just days after MoistureLoc was removed from domestic markets in April 2006.

Victims typically complained of eye irritation that progressed to a sudden onset of searing pain. Many were mistakenly treated with antibiotics and steroids — a delayed diagnosis that worsened the condition. A woman in New York was afflicted three months after Bausch & Lomb announced a worldwide recall in May 2006.

"She didn't know about the recall, and the infection was so aggressive, she lost her eye within two months," said her attorney, Hunter Shkolnik.

Leading eye doctors and government scientists concluded that MoistureLoc, launched in 2004 with novel disinfectant and moisturizing ingredients, was the only lens solution that contributed to the outbreak. Yet the mechanics of how it caused the problem are still not fully clear.

Some researchers theorize that the disinfectant, alexidine, absorbed into lenses at unusually high rates and the moisturizing agents created a biofilm in some circumstances that shielded and even fostered growth of the fungus to infectious levels.

With some fungal lawsuits still unresolved, the prospect of Bausch & Lomb's health care nightmare being aired in court has not entirely faded — which heartens some lawyers and doctors.

"The truth has been very carefully buried, and it appears to have been buried going back to the beginnings of the outbreak," said Dr. Arthur Epstein, who was chairman of the American Optometric Association's contact lens and cornea section during the highly publicized crisis.

"All settlements were predicated on silence about the clinical findings and blame and so forth. My hope was that what actually happened would become part of public record in a courtroom. That way, we'd be able to learn from it and move on and make sure it never happened again."

Multipurpose solutions have been on the market for over a decade, all but replacing older systems for rinsing and cleaning lenses.

In 2007, another popular formula made by Santa Ana, Calif.-based Advanced Medical Optics, the No. 3 manufacturer behind Alcon Inc. and Bausch & Lomb, was linked to a flurry of hard-to-treat Acanthamoeba keratitis infections caused by a parasite. More than 170 people have sued the company, which was acquired this year by Abbott Laboratories.

The Food and Drug Administration is poised to lay out more comprehensive testing standards for lens solutions.

"We did take the two epidemics as very much of a wake-up call, because contact lens safety is an essential public health issue," said Dr. Malvina Eydelman, director of the agency's ophthalmic division.

Financial analysts and lawyers estimate the MoistureLoc debacle could wind up costing as much as $500 million. But far more draining for Bausch & Lomb has been losing its dominance in the lucrative lens care market: 2.3 million of the nation's 30 million soft lens wearers used MoistureLoc, generating $100 million in annual sales.

While Bausch says it has settled "the vast majority of fungal infection cases," it is challenging another 500-plus lawsuits linking MoistureLoc to assorted bacterial, viral and parasitic afflictions. A pretrial hearing set for June 3-5 in New York will decide if there's a reliable scientific basis for arguing such a link.

Alissa Lynch, 21, of Thompson, Conn., said she developed a parasitic infection while using MoistureLoc in college in New Hampshire. It left her with a vision-blurring scar that took a year to heal.

"We went through hell and spent a lot of money to save that eye," said her father, Brian, who eventually decided against seeking damages. "We're just that kind of people. I don't think anybody intentionally looked to hurt anybody's eyes."

When Bausch & Lomb was acquired by private equity firm Warburg Pincus for $3.67 billion in October 2007, Chief Executive Ronald Zarrella said the deal would allow the company "to pursue the growth path we were on ... without a lot of outside distraction." Zarrella retired last year.

The 156-year-old Rochester-based company, which posted $2.5 billion in 2007 sales, employs 13,000 people and expects to return to public ownership within the next six years.

"They can do all this out of the public eye — guys like me aren't sitting there scrutinizing the financial impact of every single settlement," said analyst Jeff Johnson of Robert W. Baird & Co. in Milwaukee. "You can completely focus on your brand and on doing what's right by the patient."

Bausch & Lomb resorted to pushing an older product, ReNu MultiPlus, to try to shore up its battered lens care business. But those sales dropped from $522 million in 2005 to about $450 million in 2008, while Alcon's rose from $297 million to $469 million, said analyst Peter Bye of Jefferies & Co. in New York.

The knock on profits was more acute. With MultiPlus already sold under generic or retailer-chain labels, Alcon's share of branded solutions is "much higher than Bausch's," Bye said. "When you talk about (lens-care) boxes going out to new patients, it's up in the 60-70 percent range in the U.S."

Alcon's multipurpose formula was untarnished and "that's why they're cleaning up," Bye said, adding that "the stasis at the FDA means this competitive imbalance is continuing."

Source: wjz.com

Emergency doctors nationwide finding protection from ERs gone wild

2009-06-22T12:00:00.000-07:00

State by state, emergency physicians are winning added protections against malpractice suits through new laws that can provide near-immunity from most emergency department mistakes.

Proponents promise the laws will bring an end to the emergency doctor shortage and protect physicians from frivolous suits. While the laws would protect doctors from their emergency-room errors, they would do little (or even work against efforts) to solve the root problems that contribute to emergency room mistakes. Could laws that shield physicians from financial penalties for mistakes quiet discussions about understaffing and overcrowding in ERs?

“There will be no incentive to have any kind of quality control,” said Dennis Lansdowne, a partner and malpractice attorney at Spangenberg, Shibley & Liber in Cleveland who has reviewed Ohio’s version of the proposal.

Ohio is the latest state to introduce new legislation that would dramatically increase the legal standard to win a civil suit against a doctor working at an emergency department. It also offers the same protection for doctors helping after floods, tornadoes or other disasters.

The bill says physicians would have qualified civil immunity while working in emergency rooms and be subject only to lawsuits if they showed “willful or wanton misconduct” — a high standard for liability usually reserved to determine punitive damages.

“We want them without the risk of an impending lawsuit hanging over their heads,” said State Sen. Steve Buehrer, the primary sponsor of the legislation.

The bill says that those protected by the law are specifically providing services in compliance with the federal Emergency Medical Treatment and Active Labor Act (EMTALA). However, some proponents said the legislation is meant to protect all physicians providing emergency-department care. A state Senate committee had its first hearing last week on the legislation and scheduled a second this week.

The Ohio State Bar Association is reviewing the legislation and likely will take a position in 10 days to two weeks, association lobbyist Bill Weisenberg said.

That bill is part of a second wave from states — including Arizona, Michigan, Minnesota and North Carolina — that seek such protections as well as special caps on damages in emergency-room civil suits. Utah approved its version of the law in March. These later efforts follow earlier successes in Florida, Georgia, Texas and South Carolina.

Medical groups say emergency physicians are among the most-sued doctors in the country. They’re the fourth out of five practices listed individually in Ohio’s Medical Professional Liability Closed Claim Report (pdf). Emergency physicians are sued almost as often as general surgeons, but less often than family practitioners and internists, according to state data.

They’re sued largely because it’s easier for them to make devastating mistakes in the hectic environment of an ER and because EMTALA mandates treatment for anyone who needs emergency care.

Image Credit: Joe Shlabotnik

Physicians’ groups say the increased threat of medical malpractice lawsuits is behind a shortage of emergency-room physicians and the reason why other doctors resist working shifts in that department. About 11 percent of claims resulted in judgments against Ohio emergency physicians in 2007, the most recent year for the closed-claim report.

“We feel they deserve a little extra protection from simple medical malpractice so they can be that safety-net for anybody at any time,” said Laura Tiberi, executive director of the Ohio American College of Emergency Physicians. “Emergency physicians don’t choose their patients like others do.”

Texas credits malpractice reforms in 2003 — including its own emergency physician liability reform — for a resurgence in emergency medicine (pdf). Twenty-four mostly rural counties have added emergency medicine physicians since passage of the legislation, according to a report by the state and medical interest groups.

But other factors, like population growth in areas where new facilities and practices open, also could contribute to more facilities and physicians. Many states — including Ohio, which also passed reforms in 2003 — have said it’s still too early to say how legislation has contributed to change.

Tiberi said the legislation proposed in Ohio would ease issues including overcrowding and understaffing in emergency rooms. Wait times have increased nationwide, emergency room visits also have increased, and there’s increasing consensus that a shortage of emergency physicians and general surgeons will create a crisis in emergency departments. By decreasing the fear of litigation, physicians likely will return to emergency departments, Tiberi said.

Attorney Lansdowne doubts that. Instead, he predicts that many of the larger staffing companies that help manage emergency rooms would feel no need to make changes. They’re rewarded, in part, by the number of patients they see.

“People going into an emergency room have no choices — including what kind of emergency room they go to,” Lansdowne said. “They’re put in ambulances and often then they’re going to be treated by physicians who are overworked, underpaid and staffed by a corporation that really makes money by treating as many patients as they can.”

Emergency room physicians are protected already, as long as they act within the concept of the standard of care, and don’t deserve an exception beyond what other physicians receive, Lansdowne said. “They can be wrong, and as long as they act in accordance with standard of care, they are not liable,” he said.

“This is the last place we want to start giving immunity,” Lansdowne said. “Who goes to emergency rooms as much as anybody? The very young and very old. Your most vulnerable populations are at risk.”

MedCity News

Medical Malpractice Battle Gets Personal

2009-06-01T13:09:00.000-07:00

There are 73,084 working lawyers in Texas. Selina Leewright never thought that being married to one would cost her her job.

But that's why Leewright, a nurse, was fired last summer by Good Shepherd Medical Center in the East Texas city of Longview. In dismissing her, hospital officials praised her nursing skills as "fantastic." But they told her that because her husband, Marty, worked at a law firm that does medical malpractice litigation, the hospital could not continue to employ her. "I was dumbfounded," Leewright says. "They just assumed that my husband does medical malpractice, which he doesn't at all."

Leewright's firing was a measure of how toxic the battle over medical malpractice lawsuits has become. Hospital administrators and doctors across the nation, furious over what they see as waves of frivolous lawsuits that have driven up malpractice insurance costs, are striking back against lawyers with hardball tactics that, in some cases, are raising ethical questions.

Some doctors are refusing medical treatment to lawyers, their families and their employees except in emergencies, and the doctors are urging the American Medical Association to endorse that view. Professional medical societies are trying to silence their peers by discouraging doctors from testifying as expert witnesses on behalf of plaintiffs. And a New Jersey doctor who supported malpractice legislation that his colleagues opposed was ousted from his hospital post.

Image Credit: mario zucca illustration

While sharing their peers' anger over malpractice lawsuits, some doctors see such tactics — particularly the refusal of treatment — as contrary to the Hippocratic oath, in which new doctors acknowledge "special obligations to all my fellow human beings."

But Chris Hawk, a surgeon in Charleston, S.C., says the notion of refusing treatment to malpractice lawyers, their family members and associates not only is justified, it's necessary. "This idea may be repulsive," Hawk says. "It's hardball. But it's ethical."

Hawk, 57, says that a doctor's ethical obligation to treat patients applies only to emergency care. "Physicians are not bound to treat everybody who walks through their door," he says.

Doctors and lawyers long have been at odds over malpractice litigation. But soaring malpractice-insurance premiums, which hit doctors in high-risk specialties such as neurosurgery and obstetrics particularly hard, have fueled the debate. For doctors who blame the increases in their premiums on unwarranted lawsuits and large jury awards, the solution is clear: Overhaul the nation's civil litigation system, starting with limits on what jurors can award in damages.

Malpractice lawyers, led by the Association of Trial Lawyers of America, counter that rising premiums have more to do with the insurance industry than jury awards. They say tighter regulation of the industry is needed.

The lawyers say that stifling malpractice litigation could deny Americans some of their rights to seek redress in court when doctors make mistakes.

The AMA is backing federal legislation, now stalled in the U.S. Senate, that would cap pain-and-suffering awards against obstetricians and emergency room doctors at $250,000. Meanwhile, the battles continue in state legislatures. All but nine states have restricted medical-malpractice lawsuits in recent years. But the AMA contends that only six states have passed "effective" legislation, meaning laws that cap money awards.

This month in Mississippi, where lawmakers have been at odds over the issue for years, the legislature limited medical-malpractice awards for pain and suffering — as opposed to actual medical bills — to $500,000. The measure was approved amid acrimony that Percy Watson, a lawyer and legislator from Hattiesburg, says was unlike anything he had seen in his 25 years in the state House.

Watson says that at one point he got a letter from an angry doctor he doesn't know, and that the doctor told Watson he would refuse to treat the lawmaker because of his opposition to limiting malpractice awards against doctors.

"But it's not only with this doctor, it's prevalent in other areas in the state," Watson says. "Some of my colleagues in Hattiesburg who were not involved in (malpractice issues) have been refused the services of doctors just because they are lawyers."

In South Carolina, Hawk says he first urged fellow doctors to refuse non-emergency treatment to lawyers, their families and employees in a speech at the state medical association's convention in March.

The state association declined to endorse his proposal. Patricia Westmoreland, a dermatologist and member of the association's board of trustees, says she supports limits on awards and sympathizes with Hawk's frustration. But she disagrees with his approach.

"It flies in the face of just basic honesty and goodness," she says. "It's prejudiced. As a physician, I take an oath to see people and take care of people, and to refuse to take care of a sick person is just anathema to me."

But Hawk wants the AMA to adopt his view as its policy. That seems unlikely — AMA leaders have been silent on the issue — but Hawk plans to argue his case in Chicago this week during the AMA's annual meeting. Hawk says his tactic is "analogous to hitting the lawyers with a 2-by-4. Now we have their attention. Now maybe we can make some progress."
Plaintiffs allegedly blacklisted

The bitter divide between doctors and lawyers has been exposed in a range of ways recently.

Earlier this spring, a Texas radiologist's Web site, DoctorsKnow.Us, set up a national database of patients and their attorneys who have sued for malpractice. The site's stated purpose was to discourage frivolous lawsuits. But patients and their attorneys suggested the site essentially blacklisted some patients from receiving doctors' services.

The site was shut down in March, after news reports detailed difficulties people listed on the site had in getting medical care.

In New Hampshire, Tim Coughlin, president of the New Hampshire Trial Lawyers Association, recalls an angry confrontation last fall with RickMiller, a neurosurgeon from Portsmouth, N.H. Miller told Coughlin, 40, that because Coughlin lobbied against limits on malpractice suits, Miller would refuse him treatment.

"I don't do medical-malpractice work. I'm just a basic urban lawyer," Coughlin says. "He told me he had made a decision. I told him I thought that was uncalled for. He and I disagree on political matters.

"He's known as the best neurosurgeon on the Sea Coast. If I had a brain situation, I would hope he would operate on me regardless of my position" on malpractice suits. "But he's told me he wouldn't."

Miller describes his position as "firing a shot across (the) bow" of the trial lawyers group. "If Tim Coughlin came into the emergency room with some life-threatening emergency, I wouldn't hesitate to treat him. But if he came into my office because he had a herniated disk and wanted me to take care of him as an elective patient, I would decline to see him."

Miller, who says he has not been sued for malpractice, says he pays $84,151 a year for malpractice insurance. He says that after he paid business costs and taxes last year, his take-home pay was $64,000.

"That's less than my malpractice premium," Miller says. "This puts in perspective how desperate the situation is. Attorneys who choose to speak out and try to derail efforts at meaningful tort reform do so at some risk — that they will not be able to come to the best neurosurgeon in New Hampshire. They'll have to go elsewhere, the same way that patients will have to go elsewhere if neurosurgery is no longer available on the Sea Coast."

The refusal-to-treat tactic has generated the most controversy in the conflict over medical malpractice. But more disturbing to many lawyers are the efforts to silence doctors from testifying as expert witnesses on behalf of plaintiffs:

In Florida, Tampa General Hospital announced plans in February to revise its employee "code of conduct" by prohibiting staff from testifying on behalf of plaintiffs. (They may testify as witnesses for hospitals and doctors.)

Also in Florida, three doctors who were sued unsuccessfully for malpractice urged the Florida Medical Association to investigate a California doctor's testimony on behalf of the plaintiffs to "prevent the medical profession from being terrorized ... by similar 'experts.' "

John Fullerton, a San Francisco internist, has responded by suing the Tampa doctors for libel. He claims that he was defamed by statements the trio made in urging a review of his testimony. His lawsuit also alleges conspiracy, witness intimidation and violation of state racketeering laws.

In Jersey City, the medical staff at Christ Hospital voted to remove George Ciechanowski as chief of staff, according to news accounts, because he backed malpractice legislation that many of his colleagues opposed.

Lawyers decry the refusal to treat lawyers and the efforts to silence physicians. The lawyers say doctors want it both ways: They want the legal limits on malpractice lawsuits, yet have no qualms about filing suits themselves.

When Hawk began his campaign against lawsuits, critics noted that he had filed one after his wife was in a car accident during the mid-1980s. Hawk's insurance company refused to pay the claim because he filed it three days after the legal deadline for doing so had expired, so he sued. A jury awarded his wife $525,000. But an appeals court threw out the case. It said Hawk's suit was moot because he had missed the filing deadline.

"I'm not saying somebody shouldn't have the right to sue," Hawk says. "I'm saying we should ... limit the awards, and in some way make the loser pay so that we don't have a lot of frivolous suits. An automobile accident is rarely a frivolous suit."

'I didn't do anything wrong'

In Texas, Leewright is considering whether to sue the Longview hospital for wrongful termination.

Leewright, 30, was hired on May 29, 2003, and assigned to work in the hospital's nursery. Leewright, whose fluent Spanish helped with Spanish-speaking patients, says she often was called to work extra shifts. "There was a nursing shortage. I wanted them to know I was a team player."

Leewright says she thought the job was going well. Then, on July 16, she was called in to meet with her bosses. She says they praised her nursing skills, but then told her that because her husband is a lawyer, she was being terminated.

A hospital spokeswoman, Victoria Ashworth, citing confidentiality, says "all personnel matters are private and not discussed with outside parties."

Leewright filed a complaint with the Texas Equal Employment Opportunity Commission, which did not make a finding on the merits of her case but issued a notice of her right to sue. Documents filed in that case outline the hospital's practices regarding spouses of lawyers.

The hospital, according to one document submitted by its attorney, has an "unwritten practice" not to employ spouses of lawyers who represent plaintiffs in medical malpractice or personal injury lawsuits "because of the perceived likelihood of a conflict of interest."

The profitability of Marty Leewright's law firm provides a financial benefit to his wife, the document says. "That gives her an incentive to pass on confidential information that she obtains as a Good Shepherd employee."

Leewright says the hospital never mentioned its unwritten practice regarding spouses when it interviewed her for the job. She says she did not violate hospital ethics.

"I didn't do anything wrong," she says. "They assume I'm going to be unethical. They assume that I'm kind of sneaky and will try to refer cases. That's absurd."

It took her until November to find work at Longview's only other hospital. Marty Leewright says his wife's experience has been difficult. "All the nursing students know about what's happened to her," he says. "It's just like a cloud that follows her around."

Source: USAToday

Medical Malpractice Question and Answer: Thumb Partially Amputated

2009-06-01T12:31:00.000-07:00

Question: I had surgery in 2007 on my thumb which was partially amputated. In 2008 I was told by my medical doctor that my thumb was infected because of sutures not fully removed. As of April 30, 2009, I had to go back to ER for another suture was discovered. Do I have a case on this matter?

Answer: Is it medical malpractice to fail to completely remove sutures? It might be. It also may be an accepted risk of the procedure you underwent. However, in either event, it is highly unlikely that the amount of compensable damages would make filing a "case" worth your while. If as a result of the infection arising from the suture's incomplete removal, you are required to have the thumb, your hand, or your arm amputated, then the chances would be better for your legal action to prove viable.

Answer provided by:
Jason A. Richman, Esq., Attorney at Law
402 Bloomfield Gardens
Bloomfield, NY 14469
Via lawguru.com

For Your Information

A suture is a medical device that doctors, embalmers, and surgeons use to hold skin, internal organs, blood vessels and all other tissues of the human body together after they have been severed by injury, incision or surgery. They must be strong so that they do not break, non-toxic, hypoallergenic (to avoid adverse reactions in the body), and flexible (so they can be tied and knotted easily). In addition, they must lack the so called "wick effect", which means that sutures must not allow fluids to penetrate the body through them from outside, which could easily cause infections.

Surgical suture on a needle holder. Packaging shown above.

Source: Wikipedia

Can You Win a Dental Malpractice Lawsuit?

2009-05-29T09:43:00.000-07:00

Any form of malpractice is a frightening prospect, whether it is legal malpractice, medical malpractice or dental malpractice. The providers of these services are expected to be qualified experts in their fields, exerting their considerable skills for the benefit of their patients. Dental malpractice is one of the most frightening aspects to contemplate, simply because most of us consider a trip to the dentist a routine procedure. Even routine procedures, though, can go horribly wrong if the dentist is negligent.

What constitutes dental negligence, though? Just as with medical malpractice, dental malpractice can come in almost any form. All it takes is a slip of a drill, the wrong gland removed during surgery or incorrectly diagnosing a tooth disorder. The number of delicate procedures performed by dentists, oral surgeons and orthodontists can easily result in negligence if the dentist does not perform at the top of their ability.

Image Source: US Navy

Dental malpractice can take the form of improperly extracted teeth, permanent nerve damage to chin, jaw, cheeks, lips and tongue, improper use of anesthetic, and even death. Fear of the dentist's chair is something that many people experience when they contemplate a dental visit. For most of us, this fear is completely unfounded. However, in some cases, a simple dental procedure can become a nightmare. If you feel that you have been the victim of dental malpractice, you should contact a malpractice expert or liability attorney. These professionals will examine your case in detail and advise you as to its merits.

Can you win a dental malpractice lawsuit? You most certainly can, though it will require the help of skilled legal experts. The best representation is required for any NY medical malpractice lawsuit. If you are concerned that you do not have a case, or that the jurors will not believe your testimony and side with the dentist, you have only to look at some of the cases that have made news in New York.

Many cases of dental malpractice, including wrongful death and permanent nerve damage have been concluded in favor of the plaintiff in the city. Jurors are more and more willing to side with the plaintiff as more victims come forward to tell their stories. Without your vital testimony, though, many other victims may feel that their case lacks merit. Gaining recognition for dental malpractice is a concerted effort on the part of victims and their attorneys; only by working together can this terrible area be exposed to the light of justice.

Why should you seek recompense for your case, though? There is more than a single reason for seeking damages for your pain and suffering. The obvious reason is to help make up for the traumatic experience and the potentially permanent disabilities dental malpractice can lead to. Another reason is so that negligent dentists and oral surgeons can be punished for the harm they have done. Sanctions against a dentist or surgeon acts as a wakeup call for the rest of the industry, that subpar performances and negligent behavior will not be tolerated by the public.

About the Author:

Trolman, Glaser & Lichtman is New York's number one bilingual personal injury law firm. In practice for more than 30 years, the firm has a reputation for being a winner, a friend, a leader and an advocate. If you need a personal injury lawyer, look no further than Trolman Glaser & Lichtman.

Nevada Considers Lifting Cap on Medical Malpractice Suits

2009-05-25T09:49:00.000-07:00

Recently the State Assembly of Nevada passed a bill that will lift the $350,000 damages cap on medical malpractice suits when the jury finds that the defendant is guilty of gross negligence. The cap was put in place, so that intangible damages, such as emotional distress, pain, loss of enjoyment of life, disfigurement, loss of sexual organs, loss of a loved one, or a physical impairment will not result in exorbitant awards.

Image Credit: British Red Cross

Those who are in favor of such limits say that the limits keep doctors and surgeons from leaving the state of Nevada and help to control insurance premiums. However, many say that providing a condition, in which juries can find surgeons and doctors guilty of gross negligence, ensures that doctors will maintain high standards of care. IT also encourages those in the medical profession to report incidences of neglect.

The bill is currently being considered in the Senate. This will be the first time since 2001 that the reform of medical malpractice limits has been reconsidered. If it passes the vote in the Senate, it will not work retroactively. For example, those who were affected by the hepatitis outbreak in Las Vegas last year will not be able to sue for further damages.

How to Stay Safe and Avoid Medical Malpractice

2009-05-25T09:21:00.000-07:00

Medical errors and medical malpractice can subject patients to injury, frustration, illness, extra cost, pain and suffering, emotional trauma, time from work and loved ones, disfigurement, and even death. Given these negative physical, emotional, and financial consequences, the best thing you can do for yourself and your family is to learn what you can do to avoid medical errors and prevent medical malpractice in the first place.

What are Medical Errors

In order to prevent injuries that come as a result of medical malpractice, we must understand how malpractice happens in the first place – through medical errors. Healthy people don’t generally seek medical attention, so when a patient visits a doctor’s office, they’re usually already suffering from an illness or injury. If the patient’s health becomes worse, it’s often hard to recognize whether that was because of the existing condition or because of some mistake or medical error in the treatment provided.

To further complicate matters, just because a medical error has occurred doesn’t mean that error would be considered medical malpractice. Something called “standard of care” determines whether an error or series of errors reaches that level. “Standard of care” means the level of medical care that a person can reasonably expect from an average healthcare professional. Doctors are not held to the standard of an excellent doctor, or even to the standard of a good doctor. In other words, if a good or excellent doctor might have acted differently in a situation and prevented an injury to a patient but an average doctor might not have, the average doctor has not necessarily committed malpractice. Physicians are required only to perform in accordance with what is expected of an average physician in that field. It is important to note, though, that doctors who hold themselves out to be experts in a particular field are held to a higher standard than that of an ordinary physician.

Image Credit: Jeff Oehmen

In some cases, medical errors occur but it’s not the doctor’s fault. A patient may give their doctor an incorrect medical history, for example, and that may lead to an incorrect diagnosis. A medical error has occurred, but it might be unfair to blame the doctor for the mistake.

Medical malpractice occurs when a physician turns away from the accepted standard of care for the medical community. Malpractice is really a kind of medical negligence, meaning that the doctor was responsible (or had a legal duty) to care for a patient, the doctor failed to live up to that responsibility (or breached that duty), and that failure (breach) was the cause of damage or injury to the patient. The United States has developed specific medical malpractice law to resolve these cases.

Common Medical Mistakes

Remember, not all medical errors are the result of medical malpractice and not all medical mistakes lead to an injury. However, there are several types of injuries that commonly result from medical errors and medical malpractice. InjuryBoard has compiled a list and description of common medical mistakes. If your physician commits these types of errors during treatment, you may consider investigating whether your doctor committed medical malpractice.

Wrong Medication – When a patient receives the wrong medicine, the error can occur during several different steps of the treatment process. For example, a pharmacist may give a patient the incorrect medication, or a doctor’s handwriting on the prescription could be illegible. Whatever the reason for the error, the ramifications of a patient taking the wrong medication could be serious. In the case of many heart medications, for example, the correct medication might be necessary to sustain the patient’s life. Another troubling scenario occurs when an incorrectly prescribed medicine interacts with other medications the patient takes and creates negative side effects. Allergic reactions cause some medications to be lethal to some patients. It’s absolutely essential that patients receive the correct medications.

Wrong Dosage – This kind of error also involves medication but now instead of getting the wrong medicine, the patient gets the right medicine but in the wrong amount. The consequences of a patient receiving the wrong dosage can be every bit as serious as receiving the wrong medication and sometimes even more so. If a patient receives a smaller dose than is necessary, the person may not experience any of benefits the medicine is intended to provide in the first place. If the patient receives a larger dose than is required, that patient could overdose leading to organ failure and possibly death. Receiving the correct medication is important. Receiving the correct dose is just as important.

Wrong-Site Surgery – A doctor performing surgery on the wrong part of the body, or worse – the wrong patient – is one of the most egregious medical errors imaginable. One study estimates that wrong-site surgery occurs between 1,300 and 2,700 times per year in the United States. One way of reducing the probability of wrong-site surgeries is requiring health care professionals to slow down, verify the patient’s name, confirm the procedure to be performed, and make sure that all the necessary equipment is in the operating room prior to surgery. Some health care professionals have now made it a practice to have the patient themselves draw a mark on the proper site before the operation.

Misdiagnosis – Misdiagnosis occurs when a physician incorrectly determines the cause of a patient’s illness. One study of autopsies reports that doctors seriously misdiagnose fatal illnesses in about twenty percent of cases. Although the incorrect diagnoses did not necessarily cause these deaths, it is clear that misdiagnosis is a serious problem. Misdiagnosis can lead to incorrectly prescribing medications, pain and suffering, emotional trauma, exacerbation of the condition, further injury, and even death.

Steps To Avoid Medical Mistakes

There are some medical mistakes that a patient has no control of, but there are many others which can be avoided with the proper care. Here are some simple but important steps to help you avoid medical mistakes and possible malpractice.

Recognize Medical Errors - To avoid medical errors, you have to first be able to recognize them. The section and the links above provides information on some of the most common errors. Take time to read through them before a visit or any medical procedure. If you have any questions about treatment, don’t be afraid to ask.

Get a Second Opinion - Before any major non-emergency medical procedure, or even a minor procedure you feel concerned about, it’s a good idea to get another doctor’s opinion. Getting a second opinion isn’t a matter of not trusting your regular doctor, it’s a matter of being as responsible as possible for your own health or the health of a loved one.

Avoid the Emergency Room for Routine Illness - When there’s an emergency, the ER is almost always your best option, but for a minor injury or a common cold, it’s better to visit your family doctor or a local walk-in-clinic. Emergency Rooms are designed to provide care for the critically ill, but the intense atmosphere and the possibility of exposing yourself to bacteria and other contagious elements makes it a place to go only when it’s absolutely needed.

Bring a Loved One or Friend - When undergoing a serious medical procedure, bring a loved one or friend that can be your representative, help you think through important decisions, and ask questions that you might not occur to you. During these important times, having a “second pair of eyes and ears” and a second perspective may help keep you out of harm’s way.

Read and Understand for Yourself - Whenever you’re given a new prescription or the results of a medical test, it’s a good idea to read that information for yourself and then ask whatever questions are necessary for you to have a reasonably good understanding of what’s going on. Your health and well-being is your responsibility first, so don’t be embarrassed to ask for a doctor, nurse, or pharmacist to help you understand the medical choices you’re making.

Get the Best Care Possible - Perhaps the most effective way to avoid medical error is to avoid visiting substandard physicians who may not give you proper medical treatment. The best way to prevent this is to research potential doctors before committing to just one. If you ask the right questions, perform the right research, and consider the most important factors, you will be well on your way to finding the right doctor for your condition and reducing your chances of suffering the consequences of a medical error.

Sources: Wikipedia - Medical Malpractice
Wikipedia - Medical Error
InjuryBoard
WrongDiagnosis.com

House Judiciary Subcommittee Approves Hinchey's Bill to Reverse Military Medical Malpractice Injustice

2009-05-20T11:30:00.000-07:00

The Carmelo Rodriguez Military Medical Accountability Act of 2009, authored by Congressman Maurice Hinchey (D-NY), was approved by The House Judiciary Subcommittee on Commercial and Administrative Law.

One can remember the case of Sergeant Carmelo Rodriguez, who died due to skin cancer, was misdiagnosed several times by military medical personnel. The bill will enable the family of Sgt. Carmelo Rodriguez and others to hold military accountable for medical malpractice. Below is the official press release from house.gov site;

Washington, DC - The House Judiciary Subcommittee on Commercial and Administrative Law today approved a bill that Congressman Maurice Hinchey (D-NY) authored, which would enable armed service members and their families to hold the military accountable for negligent medical care. Current law prevents any such malpractice lawsuits from being filed against the military regardless of the egregiousness of the situation. Hinchey's bill, the Carmelo Rodriguez Military Medical Accountability Act of 2009, is named after the late Sgt. Carmelo Rodriguez of Ellenville, New York, who died of skin cancer in 2007 after a series of extraordinary mistakes made by military medical personnel.

"Congress took an important step forward today toward lifting an unfair policy that has denied members of the military and their families any recourse when they are the victim of medical negligence," Hinchey said. "For far too long this country has denied its servicemen and women, the very people who risk their lives to protect our freedom, some of the most basic legal rights afforded to every other American, including prisoners. This legislation provides members of the military and their families with a way of holding their medical providers accountable for negligent care. They will no longer have nowhere to turn should something terrible happen."

The full House Judiciary Committee is expected to take up the bill before the end of July. Earlier this year, the subcommittee held a legislative hearing on the bill. Hinchey testified before the subcommittee on the merits of the bill as did Sgt. Rodriguez's sister, Ivette, who highlighted the impact the tragedy has had on her family. The congressman first introduced the bill last year, and he reintroduced the measure in the current session of Congress in March.

Rodriguez, a Marine who served in Iraq, died in 2007 at the age of 29. Upon enrolling in the military in 1997, Rodriguez received an initial medical exam that revealed melanoma on his buttocks. The doctor making the diagnosis, however, failed to tell Rodriguez or refer him to a specialist. While serving in Iraq in 2005, Rodriguez was bothered by the area on his buttocks, which was constantly bleeding. A different military doctor repeatedly misdiagnosed the skin cancer as a birthmark or wart.

As the skin cancer worsened, Rodriguez's family was unable to receive a copy of his medical records from the Marines to give to other doctors. The family then asked Hinchey's office for help, but by the time the congressman's office received the medical records from the Marines it was too late. Carmelo Rodriguez had three surgeries and received radiation and chemotherapy, but it didn't save his life. The cancer had spread throughout his body and weakened him to the point that he went from being an athletic 190 pound man to weighing less than 80 pounds. He left behind a loving family, including a son who was seven years-old at the time.

Hinchey's bill would legislatively reverse the U.S. Supreme Court's 1950 ruling in Feres vs. United States in which the court ruled that military members and their families have no right or ability to sue the military for negligent medical care given to them during their service. The ruling, which has subsequently been referred to as the Feres Doctrine, has left families such as the Rodriguez's with no recourse for addressing the loss of a loved one due to obvious medical malpractice by military doctors and other medical personnel.

Definition of Medical Malpractice and The Four Elements

2009-05-12T07:26:00.000-07:00

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

The Medical Malpractice Claim

The party

The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient's estate. The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Source: Wikipedia

The Four Elements of a Medical Malpractice Case

Source: Yale New Haven Medical Center: Issues in Risk Management.

In order for a medical malpractice suit to be successful, a claimant must establish the presence of all four of the following elements:

A duty was owed.
A duty was breached.
The breach caused an injury.
Damages occurred.

Given the importance of medical malpractice in the risk management landscape, and the centrality of the four elements to any malpractice case, an in-depth look at each of the four elements is warranted.

A duty was owed:

A legal duty is established whenever a hospital or health care provider undertakes care or treatment of a patient. This duty commences when a health care provider begins any service to the patient (e.g. in the Emergency Department), enters into a contractual relationship with the patient (e.g. when contracting with a HMO or other intermediary), or even answers questions from a patient (e.g. during telephone conversation). A claimant unable to demonstrate the presence of an active physician-patient at the time of alleged injury has no basis to make a malpractice claim.

A duty was breached:

A breach of duty here refers to a failure of a health care provider to meet a relevant standard of care for the time and place of the alleged injury. The standard of care is established by expert testimony or, in such cases as retained surgical instruments after operations or burns from improperly applied surgical electrocautery pads (i.e. obvious errors) the doctrine of res ipsa loquitor (literally, "the thing speaks for itself") is invoked thus alleviating the need for expert testimony.

The breach caused an injury

The claimant must demonstrate that the failure to conform to the relevant standard of care was a proximate cause of the damaged sustained. Stated another way, it must be established that the physician's negligence led the stated injury. However, proving causation is a tricky business, whether in medical or law, and if a claimant is able to establish association, that maybe interpreted as causation by a sympathetic jury. For example, a physician who refuses to continue caring for a woman who is six months pregnant because of failure to pay may have problems convincing a jury that the baby's birth defects were not caused by lack of prenatal care in the final trimester.

Damages occurred

Unless damages of some sort are sustained by the patient, there is no basis for a claim - regardless whether or not the physician was negligent. However, demonstrating some degrees of "pain and suffering" or "emotional distress" in cases claiming non-economic damages leaves much latitude for the claimant to claim some harm. Finally, as a practical matter, damages are usually defined as the estimated monetary equivalent to compensate the injured person for the loss or injury sustained. Damages (there were damages sustained by the patient) can be divided into direct, indirect and punitive. Direct damages include lost earnings, as well as current and future medical expenses. Indirect damages may include pain and emotional distress, and loss of "consortium" (those services performed by a domestic partner including companionship, homemaking, etc., and future reproductive capabilities of either sex). Punitive damages are awarded when conduct is intentionally harmful or grossly negligent (i.e. the intentional or wanton omission of care that would be proper to provide, or the doing of that which would be improper to do).

Welcome to Medical Malpractice Information blog!

2009-05-12T07:13:00.000-07:00

Medical Malpractice Information blog is focused on delivering information regarding medical malpractice, news, medical updates, legal articles, videos and podcasts. Please remember that everything that can be read in this blog is not a substitute to legal attorneys or lawyers, which are the experts in the field of law. The intention of this blog is to help readers be more informed about medical malpractice and to be aware of their rights. If you are seeking professional advice or a lawyer, it is best to find a reputable law firm near your area.