California Personal Injury Blog - Medical Malpractice

Hospital Failed to Notify Patients Who Received Radiation Overdoses

Claude Wyle — Fri, 23 Oct 2009 12:30:50 GMT

While we have been conditioned to trust our doctors, recent developments at Cedars-Sinai in Los Angeles leave us wondering whether that is as prudent as it once was. The Los Angeles Times reported on October 6, 2009, that the hospital did not tell all 206 patients who received radiation overdoses during CT scans of its error. This according to the accounts from four people who said they only came to understand what happened to them through news reports. Hospital officials claimed that "all...patients had been contacted 'in the interest of keeping them informed.'" But, four individuals said "that although they were called and questioned by Cedars-Sinai radiologists last month, the doctors neither acknowledged any error nor explained that the patients had been exposed to eight times more radiation than necessary." The hospital "has said the overdoses stemmed from an error made when the hospital reconfigured a scanner to improve doctors' ability to see blood flow to the brain."

What we take away from this is to listen carefully to the doctor’s explanation if anything in your procedure is out of the ordinary and to ask questions if there is anything about the procedure you not understand. Do not be intimidated by technical explanations or jargon. If you feel you did not receive an adequate answer to your questions, or your doctor committed medical malpractice consult a malpractice attorney for a consultation. You should not be charged for this consultation and it is a small investment of time for substantial peace of mind.

Originally posted at InjuryBoard by Claude Wyle

Judge Approves $5.75 million in UC Davis Malpractice Suit

Rick Patterson — Fri, 16 Oct 2009 14:36:02 GMT

A Sacramento judge approved a $5.75 million settlement to the parents of a 4-year-old boy who filed a medical malpractice suit against the UC Davis Medical Center. The parents' attorneys claimed that the injuries sustained during childbirth on December 1, 2004 caused the plaintiff, Cannon Hoops, to suffer permanent neurological injuries.

Superior Court Judge David I. Brown endorsed the compromised agreement.

"As a result of the injury to his brain during his birth, the minor plaintiff has cerebral palsy and will require lifetime attendant care for his basic activities of daily living," Beverly Hills lawyer Dr. Bruce G. Fagel said in a declaration.

The settlement is the largest the university system has ever paid to settle a medical malpractice claim.

Originally posted at InjuryBoard by Rick Patterson

Micra Limits Everything

Steven Schultz — Tue, 18 Aug 2009 18:29:45 GMT

I recently spotted an article on the topic of MICRA (Medical Insurance Compensation Reform Act) and the need for reform. The article spoke at length about how MICRA limits pain and suffering damages to $250,000, and the need for reforms on that over 30 year old limitation.

The problem I had with the article is that it vastly understated the true extent of the limitations imposed by MICRA, and the devastating consequences those limits have on injured people. The $250,000 limit is just one of several limitations that was designed to keep money away from catastrophically injured victims, and in the hands of insurance companies.

The MICRA legislation limits the amount of economic damages that can be recovered as well. It does this by allowing doctors and hospitals to use evidence of health insurance payments to offset the amount of money victims can recover in medical bills and in lost income. It is important to note that doctors and hospitals are the ONLY group in the entire state that get this benefit, which vastly reduces the amount of money they must pay on the injuries and damages they cause. Once again private consumers are left with a less than complete recovery.

The MICRA laws also limits how the health care provider has to pay for damages they cause, even after they loose in trial. In every other type of case, the losing defendant has to pay the full amount for the past and future damages he/she causes. In a medical malpractice case, MICRA allows health care providers to periodicize the payments which means they can pay back the future damages they cause over the rest of the life of the victim, rather than all at once on the completion of the case. Even worse, in the event the victim dies earlier than expected, the balance of the future money awarded to the victim goes back to the doctor or hospital. It does not even go to the vicitm's family.

All of these limitations, and others, imposed by MICRA make it virtually impossible for injured victims to get a fair recovery for their loses. These same limits make it even more difficult for victims to find an attorney that will work on these types of cases.

It seems to me that MICRA has been around for more than 30 years. Interestingly, the problems that MICRA was designed to fix are still considered problems today (ie... high malpractice premiums; high health insurance premiums; good doctors leaving California). Maybe MICRA's ultimate effect of punishing the injured vicitms of malpractice was not the way to go, given that all of these problems still exist to this day.

All of these factors should illustrate the desperate need to reform the MICRA system and replace it with something that is fair to all sides, not just the health care providers and those who insure them.

Steve Schultz

Originally posted at InjuryBoard by Steven Schultz

Neglect on Nursing Board Dealt with Swiftly

Shanley Monroe — Sat, 25 Jul 2009 04:13:08 GMT

One of the hot button issues facing the nation is health care reform. Most public officials agree that health care reform is necessary. The question is not whether reform is needed, but rather how to reform the system. Patients who need emergency or long-term treatment in hospitals face more than the challenge of recovery; many also face the challenge of an over-inflated medical bill. This is just one of the many reasons you may prefer to keep your hospital visit as short as possible. You trust that your caregivers are doing their best to restore you to health and help you go home sooner rather than later. After all, they’re charging you $10 for an aspirin; one would hope that kind of price tag buys you quality care and puts you on track for a speedy recovery. Unfortunately, recent reports have revealed that the Nursing Board for the state of California may have been overlooking complaints about unfit or neglectful nurses.

The Nursing Board’s failure to address problems with the state’s health professionals caused Governor Schwarzenegger to fire three of the six board members, among them the president and vice president. The official reason for the firing was the “unacceptable time it takes to discipline nurses accused of egregious misconduct”, according to The Los Angeles Times and ProPublica. Investigations have revealed that nurses throughout the state have been allowed to continue working despite misconduct that harmed patients, criminal convictions, and incompetence. The California Board of Nursing allowed nurses accused of misconduct to continue practicing with clean records. Many who had been fired or prohibited from working in other states kept practicing without facing any disciplinary action from the board. On average, The Los Angeles Times’ investigation found that the board takes three years and five months to look into a given complaint. This is more than 6x the amount of time it takes for other state boards to address complaints in Arizona, Texas, or Ohio. This means that, since the board is also responsible for processing complaints to a nurse’s record and revoking licenses, mistreatment of patients in California hospitals has been essentially ignored by the Board of Nursing for years.

In one particular case, Laguna Beach resident Spencer Sullivan became a quadriplegic after a successful neck operation in 2001. State records allege that following the operation, a nurse gave Sullivan twice the amount of medication he was supposed to receive, causing him to suffer brain damage. The Sullivan family filed a complaint with the California Board of Nursing in the months following the operation. After suing the hospital, the incident was again reported to the board in 2005, this time by the family’s insurer. Not until April of 2008 did the board file a complaint against the nurse.

If you or a loved one has been a victim of neglect or misconduct by a health professional, you should consult an attorney as soon as possible for help filing a complaint and possibly recovering damages for injuries you have suffered. If you are sick or injured, the last thing you should have to worry about is neglect or abuse from your caregiver. An attorney with knowledge of official complaints and medical misconduct can help you through the process of protecting yourself, your family, and your rights.

Originally posted at InjuryBoard by Shanley Monroe

First Year Lawyer Discuss Medical Arbitration Agreements with First Year Doctor

Todd Slaughter — Wed, 01 Jul 2009 15:46:03 GMT

When Worlds Collide: First Year Lawyer talks with First Year Resident-Doctor about Arbitration Agreements

When it comes to personal injury and Arbitration Agreements, lawyers and doctors can share dramatically different views. These differences are evident in the conversation between a first year lawyer and a first year resident in general surgery.

Legal Training Is Scant: Looking at the curriculum of medical school it’s easy to see that legal training is at the bottom of the totem pole. Even a mere 3-hour course is a combination of legal requirements and medical ethics. Furthermore, even medical students and doctrs will tell you it's a generalized course as far as legal rights, documentation, and morality are concerned.

Do doctors even understand what Arbitration Agreements really entail?

L: “So Doc, do you understand what an Arbitration Agreement is?”

D: “I think it is a sentence in a binding agreement in which it is mutually agreed upon by two parties.”

L: “Okay, but do you understand what a person/patient sacrifices when they sign an Arbitration Agreement?”

D: “Yes, I believe that I do…it means they have to abide by the agreement they signed and can’t pursue other remedies.”

L: “Kinda...but it basically keeps the patient from being able to bring a medical malpractice suit against the doctor because they are waiving their right to a jury trial.”

D: “But I would think that the patient could still sue for negligence”

L: “How so?, because medical malpractice is negligence, so the Arbitration Agreement applies.”

D: ----Silence---

Do doctors have the ability to meet full disclosure requirements when it comes to Arbitration Agreements?

L: “Moving along, what’s your view on these clauses so far then?”

D: “So far, all I know is that anything the patient signs off on I have to inform them of. Nothing gets signed off on unless there is a witness, like a nurse, resident, or attending."

L: “Well if you have to inform them, where do you get your information for explaining what it means? Does it come for the insurance company, the overseeing doctor or nurse?”

D: “That’s a good question. I am not 100% sure but I assume it’s based on hierarchy, but they are usually standard forms.”

L: “Did you know that most Arbitration Agreements are signed without the doctor present and without explanation?”

D: “As far as that is concerned, I don’t see how because I can’t do a procedure without the patient knowing everything. I don’t think that an Arbitration Agreement would hold any water b/c in the hospital it is mandatory for us to make sure the patient understands everything, even if that requires bringing in an interpreter.”

L: “Then would you say a physician’s failure to explain something is a more common occurrence in office of a primary care physician than that of a surgeon?”

D: “Ethically the patient should know, regardless of whether it’s surgery or everyday treatment by a primary care physician. But, it’s risk vs. nature of the interaction. I have more of a risk as a surgeon for medical malpractice suits.”

Are doctors willing to take a stand against mandated Arbitration Agreements?

L: “If your insurance carrier required you to have your patients sign an Arbitration Agreement before operating then would you do it?”

D: “That’s a sticky situation because if they will only ensure me if I have patients sign it then I am in a hard spot; but for surgery, if it’s the only way I can get insurance, then absolutely. I just don’t think anything good comes out of medical malpractice lawsuits.”

L: “You don’t think that the system helps ensure the right people are practicing medicine, operating, and holding their services out to the public?”

D: “No, because 90% of the time these suits are frivolous and accomplish nothing.”

L: “But if they are frivolous then wouldn’t a jury be able to determine that? Why should a person be relegated to arbitration?”

D: “Sure, 1 in every 100 suits has merit, but the jury always looks to penalize the doctor no matter what. Don’t get me wrong; I don’t think that insurance companies should require doctors to have their patients sign off on Arbitration Agreements because I think it should be between the patient and the doctor. However, there has to be a way for me to do my job without paying absurd premiums and without having to be a doctor and an attorney at the same time.”

Note from the Editor: Interesting perspectives! However, in 30 years of practice I have never seen a jury "penalize" a doctor. Rather, juries are generally protective of the doctor, the field of medicine that is practiced, and the doctor's reputation. Also, arbitration clauses do not afford any greater protection against so-called frivilous suits than judicial proceedings. Finally, the standard of care for medical doctors is not set by attorneys, as Newt Gingrich repeatedily espouses. Rather, it is set by the doctors themselves. A doctor does not have to be a doctor and an attorney at the same time. The doctor only needs to follow the standard of care set by other similar doctors in the community.

Originally posted at InjuryBoard by Todd Slaughter

Before Rendering Critical Care Is It Ethical for a Physician to Insist that Patient Sign an Arbitration Clause?

Todd Slaughter — Tue, 30 Jun 2009 19:41:18 GMT

So you’ve been injured. You have some scrapes and bruises, a dislocated shoulder, perhaps a broken bone or two. We are all familiar with the process of getting those things fixed. After arriving at the hospital, we must first deal with the ceremonial paperwork. Do you have any insurance? Do you have any allergies? What medications are you currently using? Most of these questions are fairly self-explanatory and can be answered yes or no. And then, as you work your way down through the stack of paperwork, you come to what is often called a medical malpractice arbitration agreement. As this is probably less familiar, let’s take a look at what it means. Further, we will ask, and try to answer the question; can a doctor ethically deny emergency heath care to a patient who declines to sign a medical malpractice arbitration agreement?

In essence, this document asks, that in the event that the doctor harms you, that you give up your right to a jury trial. Instead, if you agree, any malpractice claim you might have will be heard by a panel of arbitrators. Arbitration is a form of non-judicial dispute resolution. Arbitrators are not judges in the legal sense and the verdict of a panel of arbitrators is binding only because you sign a contract promising to abide by it. Exactly what this panel looks like will vary from doctor to doctor and state to state. Generally however, your doctor would like any complaints against him to be heard by a panel of other doctors, not a jury of your peers.

So there you are, with your broken arm. You would probably like to get that fixed. But do you have to sacrifice your legal rights in order to get patched up? Does your physician have the right, either under the law or the code of ethics governing physicians to deny you treatment should you opt not to sign an arbitration agreement? The short answer to that question is…it depends.

Medical malpractice arbitration agreements are generally governed by the law of contracts. This means several things. First, if a court determines that the patient signing the contract was incapable of consenting to it the contract may be held to be invalid. Second, if the healthcare provider used fraud or coercion to compel the patient to sign, the contract will probably be held invalid.

However, many states have enacted statutes governing arbitration agreements in general, and medical malpractice agreements specifically. One example of such a statute comes from Utah. Utah State code, section 78B-3-421(3) states that a patient may not be denied health care on the sole basis that the patient refused to sign an arbitration agreement. Moreover, many other state courts have found these kinds of agreements to be innately coercive. In 1992, the Arizona Supreme Court held a contract invalid because it was presented to a patient as a condition of treatment and did not explicitly advise the patient that she was waiving her right to a jury trial. Broemer v. Abortion Services of Phoenix, Ltd., 840 P. 2d 1013 (Ariz., 1992).

It is almost impossible to argue that a patient seeking emergency care, in pain and afraid, is fully competent to assess the long-term legal consequences of signing documents the hospital requires. And yet, in many courts, in many different jurisdictions, these sorts of contracts have been upheld. So too, some medical ethics organizations feel it is ethical to deny a patient care if he or she declines to sign away legal rights. (see page 2, at lower right).

So, what should you, the hypothetical injured party, do as you sit, awaiting your health care? In large measure that depends on the nature of your injuries. Obviously if you need emergency care right now, you should get it. If your need is less urgent, you may wish to seek competent legal counsel to advise you prior to signing any contract.

One thing is clear however. Your legal rights regarding arbitration agreements will vary from state to state. Should you be injured by a doctor’s malpractice you should immediately seek legal advice from a medical malpractice attorney familiar with the legal climate in your jurisdiction. If you have signed an arbitration agreement, you may or may not be bound by that contract, depending on the circumstances of your particular case.

Originally posted at InjuryBoard by Todd Slaughter

Are There Ethical Standards for Medical Arbitration Agreements?

Todd Slaughter — Mon, 29 Jun 2009 19:24:04 GMT

Doctors can refuse to see patients who object to signing an Arbitration Clause. However, if the situation is a medical emergency the doctor cannot ethically refuse treatment where the patient will not agree to the clause. The American Medical Association (AMA) Principles of Medical Ethics states: “A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate....”. American Medical Association, Principles of Medical Ethics, 2001, available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.shtml. Yet, other principles within the same canon are directly adverse to the argument that a doctor can refuse to treat patients not presenting an emergency and who refuse to sign an Arbitration Agreement. The following principles from the AMA canon are relevant to this analysis:

“A physician shall support access to medical care for all people”. Id.

“A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient”. Id.

With regards to the first section, requiring patients to sign an Arbitration Agreement certainly conflicts with the concept of open access to medical care. These agreements close access; they limit medical care to only those that agree to relinquish certain constitutionally guaranteed rights. As more and more providers demand arbitration clauses in their service agreements, patients unwilling to sacrifice their legal rights have fewer and fewer providers available to them.

Concerning the second principle, requiring patients to give up legal rights before offering treatment reflects an aversion to, rather than a respect for, the law. This canon also imposes a responsibility upon the doctor to seek changes in the law if necessary to preserve the "best interests of the patient." This is intuitively contrary to a doctor's efforts to change his legal relationship with his patient by requiring mandatory arbitration agreement that lessens the patient's rights. Of course, doctors have argued that lower malpractice premiums serve the interest of the patient by keeping medical costs down. However, these minor cost savings are of small solace to the patient that suffers serious injury or death from the physician's malpractice. For that patient or the loved ones, the loss of the full remedies recognized by law is monumental in comparison.

It is important to note that the AMA principles are not laws themselves and only serve as standards of conduct. They guide physician behavior rather than govern it. In light of the increasing number of physicians and medical providers that are incorporating arbitration clauses into their service agreements, greater ethical guidance is needed from the AMA. Otherwise we may be vexed with a loss of physician accountability combined with a continually decreasing level of care.

Originally posted at InjuryBoard by Todd Slaughter

Do You Sign Your Doctor's Arbitration Agreement

Todd Slaughter — Thu, 25 Jun 2009 20:30:33 GMT

There is an increasing trend in the medical community to have patients sign off on a Doctor's Agreement that includes an Arbitration Clause. When a patient signs such an agreement he/she is waiving their right to sue the doctor, which means giving up the right to a jury trial and the guarantees of due process of law. By signing, the patient agrees to have any dispute with the doctor submitted to a binding arbitration, usually with no right of appeal. The Agreement also pre-selects the arbitrator or arbitration procedures, and the patient has no ability to change these clauses.

So far it appears that most courts are willing to enforce these Arbitration Agreements. Clearly, the doctor and the patient do not share the same bargaining position, and the doctor undoubtedly has a superior position of knowledge as to whether he/she has the skill and experience to deal with the medical issues presented by the patient. Presumably, circumstances will arise where a court will be compelled to find that these disparities have left the patient in an unacceptably vulnerable and dependent position, and the court will deem the agreement unconscionable and void. However, the courts to do not seem to be exercising a great deal of scrutiny regarding these agreements at this time, as more and more physicians and health care facilities incorporate them into their practices.

This is a silent type of so-called "tort reform" where the party in the greater financial and power position is preventing the injured party from having their "day in court." I doubt that any physicians would be willing to sign an arbitration clause with pharmaceutical companies to protect the companies if they provide bad advice or warnings about the their drugs/devices, and the doctors get sued. Arbitration clauses are usually a one-way street and they invariably compromise the position of the party in the weaker position.

Originally posted at InjuryBoard by Todd Slaughter

President Obama: Look at the Medical Malpractice Facts.

Lawrence Knapp — Mon, 15 Jun 2009 19:35:50 GMT

I have commented on this before. It is a fact that the medical malpractice insurance industry managed to blackmail California into passing caps on medical malpractice cases in 1975. It is a fact that the insurance industry lied when the said that a cap would significantly reduce insurance premiums. It is a fact that California's cap has not changed in 30 years. It is a fact that civil filings have decreased in California over the years, while the population has dramatically increased. It is a fact that it is harder now for a person injured by medical malpractice to find representation than ever before. It is a fact that premiums have skyrocketed over the last 30 years. It is a fact that the doctors have been fooled into believeing that they should put their efforts toward tort reform as opposed to insurance regulation.

As a senator, President Obama advanced legislation aimed at reducing malpractice suits. And Dr. J. James Rohack, the incoming president of the medical association, said Mr. Obama told him at a meeting last month that he was open to offering some liability protection to doctors who follow standard guidelines for medical practice. A bill that would set out a way to protect doctors who are sued if they have followed professional practice guidelines. But that is the law in California now. If a doctor follows professional guidelines, he has not breached the standard of care.

I have to believe that if President Obama truly knew the facts, he would never entertain this type of legislation that historically only benefits the insurance industry.

Originally posted at InjuryBoard by Lawrence Knapp

Caps on Medical Malpractice undermine the Civil Justice System

Larry Knapp — Wed, 03 Jun 2009 17:31:24 GMT

A radiology practice and hospital were negligent in the treatment of a woman whose bowel was damaged during surgery to remove an ovarian cyst. Following 9 years of legal wrangling, a Shiawassee County jury awarded $2.9 million to Sue Apsey in her lawsuit against Owosso Memorial Hospital and Shiawassee Radiology Consultants. However, the jury's decision was completely undermined by State caps on damages. That's because the caps will likely reduce the award to $1 million less, according to attorneys familiar with the matter. Why bother to have a jury system if the decision of a jury is unreasonbly capped. In California, there has been a cap on non-economic damages in medical malpractice cases that has not changed for 30 years! That's because the insurance industry through threats and fiction managed to get the California government to institute this archaic unfair law. No one in the legislature or anywhere else has done anything to change this sad reality. This despite that fact that most will acknowledge the inherent unfairness of the situation. Health insurers aren't driving 30 year old cars or using 30 year old computers. But, people injured by medical malpractice are subjected to a 30 year old cap. Its the worst kind of injustice.

Originally posted at InjuryBoard by Larry Knapp