The Injury Board Commentary - Medical Malpractice

Study Shows Doctors Often Distort the Truth with Patients

John Lowery — Fri, 10 Feb 2012 23:08:34 GMT

A study discussed in Friday's Tennessean shows that many physicians withhold the truth from patients to avoid being held accountable through a lawsuit:

"More than half admitted describing someone’s prognosis in a way they knew was too rosy. Nearly 20 percent said they hadn’t fully disclosed a medical mistake for fear of being sued. And 1 in 10 of those surveyed said they’d told a patient something that wasn’t true in the past year."

As a trial lawyer, I'm not surprised that this many doctors are cutting corners with the truth and/or outright lying to their patients about deadly mistakes. I would wager that, among the 5% of doctors who commit the most malpractice, the percentage is much higher.

Originally posted at InjuryBoard by John Lowery

What Constitutes Medical Malpractice?

Council Wooten — Thu, 09 Feb 2012 09:31:00 GMT

Medical malpractice is defined as a health care worker or provider failing to render proper care with accepted medical techniques or principles. This is a vague definition and is open to interpretation. You are entitled to receive adequate and safe care from medical professionals. Obviously, mistakes happen and some procedures are difficult and dangerous by nature, but when physicians don’t use reasonable caution, that’s when medical malpractice occurs.

If a patient is injured or killed due to negligence, the victim or the victim’s family is entitled to damages. Medical malpractice can often be difficult to prove, and the majority of the time it goes unnoticed and unreported by the patients.

If you think you have a medical malpractice case, you should not hesitate to contact an experienced attorney. There is a two-year statute of limitations from the time the injury occurs for when you can file a claim in Florida. The discovery process in these cases can be extremely long and complicated, and the longer you wait, the more difficult it becomes.

Do not take the word of physicians or a hospital when it comes to questions about medical malpractice. Contact an attorney who is looking out for your rights.

Wooten, Kimbrough & Normand, P.A.—Orlando personal injury attorneys.

Originally posted at InjuryBoard by Council Wooten

Allergan stops selling Lap-Band to 1-800-GET-THIN doctors

Paul Napoli — Wed, 08 Feb 2012 10:09:25 GMT

Allergan Inc., maker of the Lap-Band Adjustable Gastric Banding System, has announced it will no longer sell the weight loss device to troubled California surgical centers affiliated with the 1-800-GET-THIN marketing company, reports The Los Angeles Times.

The Lap-Band is a medical device approved by the U.S. Food and Drug Administration (FDA) for weight loss in obese patients. Doctors insert the Lap-Band laparoscopically and place it around the upper part of the patient’s stomach to create a small pouch that limits food consumption.

In a statement, Allergan Inc. said it had “made the decision to presently discontinue the sale of the Lap-Band … to all entities affiliated with 1-800-GET-THIN.”

Allergan’s action follows the launching of investigations by local, state and federal regulators into the practices of the surgical centers and 1-800-GET-THIN.

After becoming concerned that 1-800-GET-THIN’s billboards, bus placards, newspaper advertisements, website and other marketing was misleading consumers and failing to convey the risks, the FDA sent warning letters to these companies in December telling them to stop misleading consumers:

Marketing company 1-800-GET-THIN LLC
San Diego Ambulatory Surgery Center, LLC
Bakersfield Surgery Institute Inc.
Beverly Hills Surgery Center
Palmdale Ambulatory Center
Valley Surgical Center
Top Surgeons LLC
Valencia Ambulatory Center LLC
Cosmopolitan Plastic & Reconstructive Surgery

Some of the companies are also facing other allegations. Five patients who underwent Lap-Band surgery at clinics associated with 1-800- GET-THIN have died. California regulators are looking into the deaths and the families of some patients have filed lawsuits.

Medscape News reports that ex-employees and patients of the surgical centers have filed a lawsuit claiming the surgical centers performed Lap-Band and other medical procedures with staff personnel that were unqualified, in facilities that were unsanitary and utilized malfunctioning equipment.

Their lawsuit alleges:

Owners and staff at the Beverly Hills Surgery Center covered up the events leading up to the death of one patient;
Failure to maintain equipment and possess ventilators large enough for obese patients.
High incidence of post-operative infections due to substandard sanitation policies and inadequate equipment;
Unqualified nurses in operating rooms, nurses operating as surgeons and unsupervised administration of anesthesia;
Performing unnecessary procedures.

Owners of the surgery centers deny all the allegations.

“Our surgery centers are staffed with experienced bariatric surgeons, trained by Allergan on the proper procedures for implanting the Lap-Band,” a representative of the surgery centers said in a statement to KTLA News. “Patients interested in weight loss solutions have a range of options, of which the Lap-Band is only one. We will continue to work with our patients to find the best healthcare options for their medical needs.”

Allergan will continue to sell Lap-Band to other medical facilities and bariatric surgeons.

Originally posted at InjuryBoard by Paul Napoli

Friday's Legal & Safety News Roundup: Feburary 3, 2012

Brett Emison — Fri, 03 Feb 2012 17:14:50 GMT

Legal & safety news from around the internet that caught my attention this week:

The Demi Moore 911 Call: A Breach of Medical Confidentiality? [Daniel Solove at Concurring Opinions]
"Tort Reform" and the Symptoms of Insanity [The Pop Tort]
When, If Ever, Are Frequent-Flyer Miles Taxable [David Lazarus at LA Times HT Brian Wolfman at Public Citizen Consumer Law & Policy Blog]
Why Drunk Drivers File Lawsuits For Their Own Accidents [Max Kennerly at Litigation & Trial]
Facebook Timeline Blues [Ilya Somin at The Volokh Conspiracy]
"Tort Reform's" 800-Pound Gorilla -- The Insurance Industry [The Pop Tort]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

The Only Real "Medical Malpractice Reform" Is Prevention

Andrew Cochran — Mon, 30 Jan 2012 17:53:43 GMT

There's a great article in The Washingtonian magazine today titled, "Minor Mistakes, Deadly Results," about the thousands of deadly medical errors occurring annually and the measures taken by Washington-are hospitals to prevent them. Here's the beginning of the article, with a story that illustrates the cases and should break your heart:

When Frances Barnes had a stroke in August 2008, she was taken by ambulance to Howard University Hospital. The 80-year-old grandmother was there for about two weeks when she began complaining about pain in her legs. Her daughter Althea Hart pulled back her mother's blankets and noticed a strange odor. Hart thought the smell was coming from the compression stockings wrapped around Barnes's legs to help with circulation, so she took them off. She found that her mother's left foot had turned black.

Hospital staff had failed to follow physician orders, which required taking off the compression stockings after each shift for at least 30 minutes, according to a DC Department of Health investigation.

"We called a nurse right away, and they tried to heal her infection," says Patricia Moss, another of Barnes's daughters. "But they couldn't."

Barnes's family moved her to Providence Hospital in Northeast DC, where she had to have her lower leg amputated. Barnes moved to a nursing home, where she continued to get infections; she died at Providence in February 2009, five months after her foot turned black. Barnes left behind eight children, 15 grandchildren, and 16 great-grandchildren.

The facts are startling. Medical malpractice appears to be worsening. "In 2010, the federal government estimated that faulty medical care contributed to the death of about 15,000 Medicare patients per month. By these measures, faulty hospital care is one of the leading causes of death, behind heart disease and cancer." And surgery on the wrong location in body happens "as often as 40 times a week in US hospitals and clinics," according to the Joint Commission, which accredits American hospitals. All this despite the use of a universal protocol in accredited hospitals as a way to eliminate wrong-site surgeries.

On March 23 of last year, I wrote about surveys of operating room and critical care nurses that revealed shocking instances of medical malpractice. For instance, 85% of 2,383 nurses surveyed said they'd been in a situation where measures such as checklists and protocols warned them of a problem that would have otherwise harmed a patient. But 58% of the nurses said they'd been in situations where it was either unsafe to speak up or they were unable to get others to listen.

Tort reformers screaming for an unconstitutional federal takeover of state courtrooms and tort law should think a little more logically. The most important and successful way to institute valuable reforms in the medmal area is to institute cost-effective prevention mechanisms. State legislatures and Medicare should concentrate on requiring such protocols, not trying to limit the damage on the back end through limits on medical malpractice lawsuits. As the libertarian Cato Institute demonstrated last year, caps on medmal awards only hurt consumers, they don't reduce deadly medical errors.

Fix the problem at its source and you'll see real reductions in the number of medical malpractice lawsuits.

Originally posted at InjuryBoard by Andrew Cochran

A Harsh Reality: HR 5 Will Restrict Your Rights

Mark Bello — Mon, 30 Jan 2012 12:02:47 GMT

The HR 5 bill, known as the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act, aims to take away the legal rights of injured patients, remove any incentives to improve patient safety, and leave people at risk for more injures from negligent care. This bill would impose a $250,000 federal cap on non-economic damages; inadequate compensation for someone seriously injured due to the negligence of a doctor or hospital.

HR 5 is a terrible deal for the American people. I have written post after post about the corporate fleecing of our civil justice rights and the trampling of the 7th Amendment by corporate interests and the politicians whose campaigns are profiting from these interests. It is a horrible fate to be a victim of negligence especially in the operating room by someone whose hands you placed your life or the life of a loved one. If my message is not getting across to you, maybe this video will.

http://www.youtube.com/watch?v=4N0Dk7MUB_Q

Ma rk Bello has thirty-five years experience as a trial lawyer and thirteen years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Mississippi, Connecticut, Texas, and Tennessee Associations for Justice, and Consumers Attorneys of California, member of the American Bar Association, the State Bar of Michigan and the Injury Board.

Originally posted at InjuryBoard by Mark Bello

Medication Error In Allentown Causes Tragic Death

Gregory Spizer — Mon, 30 Jan 2012 11:52:24 GMT

On Friday, the Allentown Morning Call addressed a Pennsylvania Department of Health report which indicated that on three separate occasions in 2010 and 2011, nurses at St. Luke's Hospital in Allentown improperly programmed patient-controlled pumps which delivered pain medication. As a result, 3 patients overdosed themselves.

One of the patients, a 38 year man who had undergone a hernia repair, received five times the amount of morphine prescribed to him. Tragically, this man died a day after surgery with what the Lehigh County Coroner's Office described as natural causes.

Unfortunately, medication errors in hospitals is not an unusual occurrence. A study by Dr. C.A. Bond was published in Pharmacotherapy in 2002. According to Dr. Bond, medication errors occurred in 5.22% of patients admitted to hospitals each year or a dispensing error took place every 22.04 hours.

With these alarming statistics, it is imperative that our hospital's pharmacies, nurses and other staff members are properly trained to avoid medication dispensing errors. It is also vitally important to make sure that quality control measures and safety nets are in place so when errors inevitably do occur, they will be caught before tragedy strikes.

Originally posted at InjuryBoard by Gregory Spizer

Gall Bladder "Misadventures"

John F. McCormick Jr. — Mon, 30 Jan 2012 08:52:53 GMT

Gall bladder removal (“cholecystectomy”) is one of the more common surgeries in the U.S. One estimate places the number of these procedures in excess of 750,000 annually in the United States. Until the late 1980’s/early 1990’s, surgeons removed the gall bladder through a three to four inch incision in the patient’s abdomen. The procedure (“open” cholecystectomy) required a three to four day hospital stay after surgery and a recovery period of several weeks. In the late 1980’s/early 1990’s, surgeons in the U.S. began removing gall bladders “laparoscopically.” The laparoscopic method does not require a large incision; usually is an outpatient procedure, which allows the patient to return home the day of surgery; and has a two or three day recovery period. Now, the vast majority (approximately 90%) of cholecystectomies are laparoscopic.

The gall bladder is at the bottom of the liver and is just beneath the rib cage on the right. The cystic duct exits the gall bladder and connects the gall bladder to the common bile duct, forming a “T” junction. The common bile duct, in turn, connects the liver to the intestines. At the entry point to the liver, the common bile duct divides in two, forming the left hepatic duct and the right hepatic duct.

In removing the gall bladder, the surgeon clips the cystic duct in two places. One is near the cystic duct ‘s juncture with the gallbladder, and the second is at the cystic duct’s juncture with the common bile duct. The surgeon similarly clips the cystic artery. The surgeon then transects (cuts) the cystic duct and artery between the two clips. By transecting the cystic duct and artery, the surgeon frees the gall bladder for removal.

The surgeon must find and identify the cystic duct’s juncture with the gall bladder and the cystic duct’s juncture with the common bile duct before transecting the cystic duct. The surgeon accomplishes this by finding the gall bladder and the cystic duct juncture; and then meticulously tracing the cystic duct to its junction with the common bile duct. The objective is to identify the cystic duct conclusively. The surgeon must not clip the cystic duct or transect it before making conclusive identification of the cystic duct.

Unfortunately, laparoscopic cholecystectomies (LC’s) do not always go as planned. The most common mistake is that the surgeon clips or cuts the patient’s common bile duct instead of the cystic duct (an injury caused by a physician is an “iatrogenic injury.”). The medical literature places the frequency of this mistake at 0.1% to 0.5%, and describes the consequences as “severe” and a “dreaded complication.” Even though the overall mortality of LC is 0.45%, it can be as high as 9% after a bile duct injury. The injury usually requires extensive, complicated, painful and expensive ($250,000 plus or minus) surgery (Roux N Y) to reconstruct the patient’s biliary anatomy. Once the patient’s biliary anatomy has been reconstructed, there will be a long period of convalescence; and the reconstructive surgery does not always result in the patient’s being ”out of the woods.” After reconstructive surgery, the patient is at risk for scarring and stricturing of the reconstructed biliary tract and further reconstructive surgery. In the worst case scenario, the patient can develop liver failure and die.

There is much written about iatrogenic biliary tract injury during gall bladder surgery. There also is a considerable amount of litigation as the result of these mistakes. The basic rule is that the surgeon must conclusively identify the cystic duct before clipping or transecting; if, in fact, the surgeon makes the conclusive identification, the injury will not occur. The resulting litigation focuses on that one rule: the surgeon failed to conclusively identify the cystic duct. As the result, the surgeon placed clips across common bile duct, obstructing the flow of bile; or transected the patient’s common bile duct, resulting in the flow of bile into the patient’s abdomen and consequent sepsis.

Originally posted at InjuryBoard by John F. McCormick Jr.

When Clarence Thomas & John Roberts Defended The 7th Amendment

Andrew Cochran — Mon, 30 Jan 2012 08:12:07 GMT

The Seventh Amendment provides that " [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved... Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages... The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recognized that "by the law the jury are judges of the damages.'' Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C.P. 1677). Thus in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), the Court stated that "the common law rule as it existed at the time of the adoption of the Constitution'' was that "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.''

So wrote Justice Clarence Thomas in his opinion for a unanimous Supreme Court, when it ruled in a 1998 copyright infringement case that the Seventh Amendment requires the right to a jury trial where the copyright owner elects to recover statutory damages. InFeltner v. Columbia Pictures Television, Inc., the Court overruled the Ninth Circuit Court of Appeals, which had affirmed a district court's ruling denying Feltner's motion for a jury trial. Justice Thomas' opinion included a discussion of the applicability of the Seventh Amendment to copyright infringement cases and, in effect, a terrific defense of the right to a civil jury trial and the role of local juries. Justice Thomas noted that even before adoption of the Constitution, in England and in the American colonies, "copyright suits for monetary damages were tried in courts of law, and thus before juries." And he wrote that the Copyright Act of 1790 didn't change that practice.

Ironically, the attorney asserting Mr. Feltner's Seventh Amendment rights was John Roberts, now the Chief Justice of the Supreme Court, and during oral argument before the Court, he eloquently noted the historical role and significance of civil jury rights enumerated under the Seventh Amendment:

In light of clear historical practice on both sides of the Atlantic prior to 1971, Feltner had a right under the Seventh Amendment to have a jury make that finding and others on which the award was based and determine the amount of damages to be imposed within the statutory limits.

The idea that... when Congress fixes the amount of the penalty it can therefore delegate that task to judges ignores the whole purpose of the Seventh Amendment.

The Seventh Amendment is to protect against judicial bias and corruption and overreaching and, while that's not implicated when Congress fixes the amount because Congress is doing that, the judge is just applying it, when you give that task to the judge the whole reason for having the Seventh Amendment comes into play...

As someone who has criticized the Roberts Court for decisions denying civil jury trials in a number of preemption and arbitration cases, I was surprised to learn of this defense of the Seventh Amendment by Justice Thomas. My thanks to Bob Peck of the Center for Constitutional Litigation in Washington for pointing it out. Now if only the Roberts Court would only take a realistic view of the practical and harmful impacts of federal preemption and forced arbitration clauses on our right to a civil jury trial.

Originally posted at InjuryBoard by Andrew Cochran

Boston Dentist Used Paperclips in Patients' Mouths for Root Canals

David Mittleman — Fri, 27 Jan 2012 10:00:00 GMT

A Boston area dentist recently pled guilty to defrauding Medicare for $130,000 between August 23, 2003 and June 2005. He also pled guilty to assault and battery of his patients after placing paperclips in his patients’ mouths instead of stainless steel posts used for root canals. He faces the possibility of decades in prison.

Michael Clair, age 53, filed false claims to Medicaid for the cost of standard stainless steel posts used for root canals and also submitted claims using other dentists’ identification numbers. He also pled guilty to prescribing powerful painkillers to his staff, such as Hydrocodone and Percocet. However, his staff gave back all or a majority of the painkillers. He entered the guilty plea on Friday, reversing an earlier not guilty plea he made in 2010.

A single count of Medicaid fraud carries a penalty of up to 5 years and each count of illegal prescribing of a controlled substance carries a sentence of up to 10 years in prison. Authorities say that Claire used paperclips as a cheaper remedy for root canals, and while paperclips can be used as a temporary solution, they can lead to pain, infection and discomfort in the long run.

Originally posted at InjuryBoard by David Mittleman