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Doctor Faces Manslaughter Charges in Death of Abortion Patient

Kyle Bachus — Tue, 22 Jul 2008 17:59:39 GMT

In a rare move, a Cape Cod grand jury indicted Dr. Rapin Osathanondh on a charge of manslaughter, following the October 13, 2007 death of 22-year-old patient, Laura Hope Smith. While, as Dan Slater noted, “it’s rare that even the most egregious instances of medical malpractice qualify as crimes,” Cape Cod District Attorney Michael O’Keefe told the Boston Globe that during Smith’s surgery, an abortion, “there was an inattention to the kinds of procedures of a lifesaving nature that one would expect in a place where an operation with anesthesia is being performed… There was nobody monitoring her, long enough to result in her death. There were a number of other shortcomings that make up the willful, wanton, and reckless conduct."

The litany of allegations brought by the Massachusetts Board of Registration in Medicine, claim that among these other shortcomings, Osathanondh failed to have someone present to administer and monitor sedation or to assist in resuscitative measures, failed to monitor Smith’s blood pressure, pulse, or heart rate or have oxygen available, failed to timely initiate a 911 call, and “failed to adhere to basic cardiac life support protocol.” Osathanondh is also alleged to have lied to the Board by stating he administered oxygen to Smith and monitored her pulse, that he and the other staff member present were ACLS certified, and that the procedure took place in a different, better equipped room. He is also alleged to have "fraudulently obtained renewal of his medical license by providing false information."

Osathanondh, a Harvard School of Public Health research associate who apparently left a previous hospital “under a cloud of threatened nurses,” is expected to plead not guilty. His attorney told the Globe that “this is a tragedy that sometimes happens in medicine, but it happens; patients die inexplicably in the course of even routine procedures . . . . This is not a matter that belongs in the criminal courts."

Whether it does or not is an extremely close call. That Osathanondh committed malpractice seems to be clear, but where’s the line between medical malpractice and criminal activity? As noted in the comments section at the Wall Street Journal’s legal blog, some facts regarding the type of anesthesia aren’t clear, neither is whether he is charged with voluntary or involuntary manslaughter. Other questions that come to mind: what differentiates this doctor’s conduct from similar egregious forms of medical malpractice? Did the fact that Smith’s death occurred during an abortion play any role in the decision to prosecute? Is the level of care generally lower for these types of procedures? The conclusion that this young woman’s tragic death was avoidable, however, is unquestionable.

Thomas Connell

Summer Intern 2008

J.D. Candidate 2010

University of Colorado

Originally posted at InjuryBoard by Kyle Bachus

Are You Paying For Your Doctor's Mistakes?

Linda Snyder — Wed, 05 Mar 2008 15:38:24 GMT

Imagine going to the hospital for a routine hernia operation. Imagine you wake up and find two incisions instead of one as expected because the surgeon operated on the wrong side and had to start over.

Imagine getting your insurance statement a few weeks later and find your insurance had been billed for both operations!

This is the true story of Kevin Baccam, a 33-year old school district controller from Urbandale, Iowa, who had his surgery in August 2005. He is suing Dr. Frederick S. Nuss and the Iowa Clinic. "It's the principle of the thing", said Baccum.

This is not an isolated case; there are many other medical billing horror stories, some with devastating results. And yet in many cases the patient is being billed for the doctors' or hospitals' mistakes.

Eleven states have adopted a policy of waiving the fee for the worst mistakes, which have been dubbed "never events", meaning they should never happen at all. The NQF (National Quality Forum) has identified 28 never events that include surgery on the wrong part, surgery on the wrong patient, wrong surgery performed on a patient, items being left behind in a patient and a baby sent home with the wrong mother.

There's a certain amount of finger pointing and liability issues that emerge when a doctor and/or hospital admits they made a mistake. For example, the hospital preps the patient correctly and the doctor operates on the wrong body part, should the hospital pay? Or, the hospital performs the blood tests on the wrong patient and the patient dies in surgery because he was given the incorrect blood type. Is that the doctor's fault? It certainly isn't the patients' fault, yet in many instances it's the patient who is paying for these mistakes.

In October 2008, Medicare will start hitting hospitals where it hurts. Medicare will no longer cover 8 of the most serious never events.

Other insurers are looking into this as well. All I can say, is it's about time.

Originally posted at InjuryBoard by Linda Snyder

Medical Malpractice Crisis Myths(2)

Darin Schanker — Fri, 20 Jun 2008 04:00:00 GMT

The Center for American Progress has a series of short articles on medical malpractice, and it is worth giving a read. As the election shifts into overdrive, you can expect to hear a lot about this issue, since health care is sure to be central this cycle and the canard about a medical malpractice crisis is one that gets trotted out every year.

Proponents of damage caps on personal injury like to use the myth of a medical malpractice crisis as a hammer, talking about how frivolous lawsuits and “jackpot juries” are bloating healthcare costs nationwide. However, they tend to ignore a few crucial facts: first, that medical malpractice costs hover around 2% of all healthcare costs, and second, that the systems is quite skilled at sorting out truly frivolous claims.

But even that is missing the point.

The civil justice system generally, and medical malpractice specifically, is not about shifting money from one party to another; and one of the main things it is about is ensuring continuing care for those with medical needs. There is, all to frequently, no safety net for those who are injured. And if you were injured because of another, then nothing is more basic, more primal, more just then to ensure that the person who injured you does their level best to make you whole again. It is not for nothing that a former doctor and new lawyer framed the issue this way:

“When errors do occur, early and honest disclosure and offer of fair compensation should be the norm.”

It is not about the money, it is about responsibility. Keeping that in mind is the secret to parsing talk about the medical malpractice “crisis.” If the statement is not about how to care for injured people, if it instead talks about exploding costs, then you can bet it is a smoke screen. The first goal of everyone should be expanding protection to the injured, not to the bottom line.

Nathan T. Swanson

Summer Intern 2008

JD Candidate, 2009

University of Denver

Originally posted at InjuryBoard by Darin Schanker

Longer Stays in Hospice Cause Financial Problems

Linda Snyder — Tue, 27 Nov 2007 11:47:11 GMT

Numerous hospice providers nationwide are facing financial problems due to their patients living longer than expected. You would assume this would obviously be a positive development, yet the effects on hospices' aren't.

Over the last eight years, the federal government has had to demand that hospices exceeding reimbursement limits repay hundreds of millions of dollars to Medicare.

A 2006 report concluded that Medicare spent $6.7 billion on hospice care in the year 2004.

When the Medicare hospice benefit first went into act in 1983, it was designed for patients who were expected to live six months or less. Most of these patients were cancer victims. In recent years, hospice use has increased dramatically for a wider realm of patients with illnesses from Alzheimer's disease and dementia. This has cause the average stay of patients in hospice to rise to 86 days.

The Medicare Payment Advisory Commission, who analyzes Medicare issues for Congress, stated that 220 hospices (one for every 13 providers) had received repayment demands totaling to $166 million.

Medicare's spending on coverage of hospice has tripled from the years 2000 to 2005 to $8.2 billion and 40 percent of Medicare recipients now use this service.

A cap on how much hospice providers can be reimbursed each year cannot exceed the number of patients it serves and a pre-patient allowance has been set by the government each year. The longer lengths of stays have proven to cause problems with the cap, hospice's finances and even shutting down some facilities.

It has been almost 25 years since the Medicare hospice benefit has been in effect and it is about time that lawmakers make a revision, otherwise more hospices may face closing. Hospices remain to be extremely cost-effective for patients when you compare the average daily stay in a hospital to $5,036 and in hospice, $136.

Originally posted at InjuryBoard by Linda Snyder

Misdiagnosis Malpractice Lawsuit Settled

Staff Writer — Sat, 21 Jan 2006 08:52:36 GMT

The Department of the Air Force recently settled a malpractice lawsuit with a woman whose burst appendix was origianly diagnosed as a sexually transmitted disease.

Michelle Reed went to the Peterson Air Force Base medical clinic on September 15, 2003 complaining of abdominal pain. It wasn't until six days later that it was determined her appendix was the problem. By the time she had surgery, the rupture had so severly damaged her right fallopian tube and ovary were so severely damaged that doctors have advised her not to get pregnant. She spent almost a month in the hospital. Between the time of her initial visit and the eventual surgery, Reed was diagnosed and treated for PID, a disease caused by gonorrhea or chlamydia. Upon her discharge from the hospital after her surgery, she was informed tests for those diseases were negative.

Read the entire malpractice lawsuit article.

Originally posted at InjuryBoard by Staff Writer

Suits over hernia mesh patch on the rise

Staff Writer — Wed, 27 Dec 2006 09:33:24 GMT

Earlier this month a law firm out of Mt. Pleasant, South Carolina, announced that they are filing suit on behalf of their client against Davol, Inc., the manufacturer of Composix Kugel Mesh Patch, which as been used in a number of hernia repair surgeries. The defective medical device has been known to cause serious complications in patients who have undergone hernia surgery in which is was employed.

The patch was recalled in 2005, but many patients did not receive the information about the recall. A news release from the law firm of Motley Rice details the case:

The suit was filed in Superior Court in the State of Rhode Island on behalf of plaintiff Jimmy Warren of St. Charles County, Missouri, whose inserted Kugel Mesh Patch failed following a product recall, causing severe abdominal pain and resulting in necessary bowel dissection surgery to remove the failed patch. Additional defendants in the case include New Jersey-based C.R. Bard, Inc., the parent company of Davol, Inc.
On January 6, 2004, Mr. Warren underwent hernia repair surgery, during which he received a Kugel Mesh Patch developed by Davol, Inc. The following year, Davol recalled many of the Kugel Mesh Patches under an FDA Class I recall - a recall issued for medical devices that are potentially life-threatening or could cause a serious risk to a patient's health. In 2006, this recall was expanded to include the patch inserted in Mr. Warren. Following his surgery, Mr. Warren developed abdominal tenderness, and according to the complaint, another hernia had developed in Mr. Warren in April 2006.
During surgery to repair the second hernia, a piece of the failed Kugel Mesh patch was discovered adhered to Mr. Warren's bowel. Mr. Warren was subjected to a prolonged bowel dissection to release the mesh from his bowel, leaving him with chronically inflamed bowels, as well as ongoing physical pain and mental anguish. It is alleged that the manufacturers of the Kugel Mesh Patch were aware of the high degree of complication and failure rate of the product.

Originally posted at InjuryBoard by Staff Writer

Surgeons Fail to Report When Stuck With Needles

Jenny Albano — Fri, 29 Jun 2007 11:47:51 GMT

A study being published in the New England Journal of Medicine found that most surgeons who have accidentally stuck themselves with needles while performing surgery, failed to report their injuries. This is a major problem because this lack of reporting is putting many patients and doctors at risk for blood-borne illnesses, such as AIDS and hepatitis.

Most surgeons say the main reason for needle stick injuries was because they were being rushed. Also, many surgeons did not believe that immediate medical attention could prevent infections. But these thoughts are untrue, timely treatment with antiviral drugs can prevent chronic infections.

Julie L. Gerbeding, director of the CDC, thinks this study shows further evidence that protection measures need to be strengthened. Trainees need to be given more instruction on safety techniques and what to do if they become injured.

An estimated 800,000 needle stick injuries occur each year among health care workers in this country. Of the participants in Dr. Makary's confidential survey, 99 percent had experienced at least one needle stick injury by the end of the fifth and last year of surgical training (the average was eight such injuries). Of these, 51 percent failed to report their injuries to an employee health service as some hospitals require.

Of the health care workers that did report, more than half of them did so because they were working with a patient that was at high risk for infections. Many surgeons reported when they were stuck by needles if someone else was aware of the injury.

If you feel you have been injured due to a surgeon's negligence, please contact an attorney.

Originally posted at InjuryBoard by Jenny Albano

Medical Malpractice and Good Samaritans

Staff Writer — Sat, 07 Jan 2006 07:31:07 GMT

Rep. Josh Penry, R-Grand Junction has plans to introduce a bill to the Colorado Legislature (Good Samaritans in Health Care Act of 2006) which would protect doctors who volunteer their services from medical malpractice lawsuits.

The bill is viewed among its supporters as a way to protect health care providers such as nurses, doctors, physical therapists, etc. from lawsuits when they are volnteering their services to help low-income families as well as those without health insurance.

Several states have passed legislation similar to what Penry proposes. Florida, for example, frees medical volunteers from costly insurance concerns by granting immunity from medical malpractice liability.
One version of the Good Samaritan concept calls for medical volunteers becoming temporary state employees. If patients decided to later bring malpractice claims, they would end up suing the state. A liability trust fund created to offset litigation expenses would then cover any payout.

Read the entire volunteer medical malpractice article from GJSentinal.com

Originally posted at InjuryBoard by Staff Writer

New bill to help health care workers

Staff Writer — Tue, 06 Feb 2007 11:03:06 GMT

An interesting article in The Denver Post yesterday addresses administrative problems in hospitals that could be to the detriment of health care workers and patients, possilby leading to medical malpractice.

The article tells the story of a hospital cleaning crew supervisor who was fired after repeatedly asking for more staff members to help them do a better job. Nurses and others complained that they were not doing an adequate job of cleaning, while the workers said they did not have enough people to get the job done.

Rep. Morgan Carroll, D-Aurora, is proposing a new bill to the Colorado Legislature protecting health care workers for whistle-blowing. There are currently no OSHA standards in place for these issues. On Thursday, the bill passed the House Health and Human Services Committee.

Originally posted at InjuryBoard by Staff Writer

Court Denies Medtronic's Motion for Summary Judgement

Staff Writer — Fri, 15 Dec 2006 10:37:54 GMT

Defibrillator manufacturer Medtronic asked the US District Court of Minnesota to consider a motion for summary judgement. Their request was based on the claim that federal preemption barred the plaintiffs' claims. The plaintiffs' main complaint sites state law product liability claims sounding in negligence and strict liability. Other claims include violations of state Consumer Protection Statutes, violations of Minnesota false advertising and deceptive trade practices statutes, and misrepresentation by omission. The plaintiffs' seek damages for personal injuries that resulted from their use of Medtronic devices.

The Supremacy Clause of the US Constitution establishes the premise for federal preemption. The clause indicates that any state law conflicting with a federal law or regulation is preempted. Any court considering a preemption challenge is not to pass judgement on the state policy's reasoning, but rather must decide if the policy conflicts with or stands in the way of the purpose and execution of a the federal law.

After thoroughly investigating Minnesota state law, FDA approval requirements, evidence brought forth by the plaintiffs, and other preemption cases, the US District Court of Minnesota found Medtronic failed to show that the plaintiffs' claims were preempted by federal law. Medtronic's motion for summary judgement was denied on November 28, 2006.

Originally posted at InjuryBoard by Staff Writer