Injuryboard Commentary - Medical Malpractice

Are Malpractice Claims Running Doctors Out of Business?

Mike Ferrara — Tue, 08 Dec 2009 21:06:14 GMT

In an effort to cap or otherwise limit malpractice claims across the country, tort reformers tell us again and again how the high cost of malpractice insurance is running doctors out of business. They’re scarcely scraping by, we hear, and tort reform is the only answer.

There are a number of reasons why this is bogus (check out our Cherry Hill blog for more info), but here is the latest from Forbes Magazine’s Top 25 Paying Jobs in the US. The salaries speak for themselves.

No. 1 Surgeons

Average Annual Pay: $206,770

One-Year Change: +8.0%

Employees in Field: 47,070

Best-Paying State: Wisconsin

The Job: Treat diseases, injuries and deformities by invasive methods, such as manual manipulation or by using instruments and appliances

No. 2 Anesthesiologists

Average Annual Pay: $197,570

One-Year Change: +2.5%

Employees in Field: 34,230

Best-Paying State: Kentucky

The Job: Administer anesthetics during surgery or other medical procedures.

No. 3 Orthodontists

Average Annual Pay: $194,930

One-Year Change: +5.2%

Employees in Field: 5,500

Best-Paying State: New Hampshire

The Job: Examine, diagnose and treat dental malocclusions and oral cavity anomalies. Design and fabricate appliances to realign teeth and jaws.

No. 4 Obstetrician and Gynecologists

Average Annual Pay: $192,780

One-Year Change: +5.0%

Employees in Field: 19,750

Best-Paying State: Wisconsin

The Job: Diagnose, treat and help prevent diseases of women, especially those affecting the reproductive system and the process of childbirth.

No. 5 Oral and Maxillofacial Surgeons

Average Annual Pay: $190,420

One-Year Change: +6.7%

Employees in Field: 4,760

Best-Paying State: Michigan

The Job: Perform surgery on mouths and jaws.

No. 6 Internists, General

Average Annual Pay: $176,740

One-Year Change: +5.7%

Employees in Field: 46,980

Best-Paying State: Wisconsin

The Job: Diagnose and provide nonsurgical treatment of diseases and injuries of in

No. 7 Prosthodontists

Average Annual Pay: $169,810

One-Year Change: +0.3

Employees in Field: 370

Best-Paying State: New Jersey

The Job: Construct oral prostheses to replace missing teeth and other oral structures.

No. 8 Physicians and Surgeons, All Other

Average Annual Pay: $165,000

One-Year Change: +6.3%

Employees in Field: 26,850

Best-Paying State: Minnesota

The Job: All physicians and surgeons outside of the main specialties.

No. 9 Family and General Practitioners

Average Annual Pay: $161,490

One-Year Change: +5.1%

Employees in Field: 106,210

Best-Paying State: Wisconsin

The Job: Diagnose, treat and help prevent diseases and injuries that commonly occur in the general population.

No. 10 Chief Executives

Average Annual Pay: $160,440

One-Year Change: +6.0%

Employees in Field: 301,930

Best-Paying State: New Jersey

The Job: Determine and formulate policies and provide the overall direction of companies or private- and public-sector organizations within the guidelines set up by a board of directors.

No. 11 Dentists, General

Average Annual Pay: $154,270

One-Year Change: +4.9%

Employees in Field: 85,910

Best-Paying State: Alaska

The Job: Diagnose and treat diseases, injuries and malformations of teeth and gums and related oral structures.

No. 12 Psychiatrists

Average Annual Pay: $154,050

One-Year Change: +4.4%

Employees in Field: 22,140

Best-Paying State: Nevada

The Job: Diagnose, treat and help prevent disorders of the mind.

No. 13 Pediatricians, General

Average Annual Pay: $153,370

One-Year Change: +5.6%

Employees in Field: 29,170

Best-Paying State: Kentucky

The Job: Diagnose, treat and help prevent children's diseases and injuries.

No. 14 Dentists, All Other Specialists

Average Annual Pay: $142,070

One-Year Change: +18.0%

Employees in Field: 4,770

Best-Paying State: Oregon

The Job: Specialist dentists excluding oral and maxillofacial surgeons, orthodontists and prosthodontists.

No. 15 Podiatrists

Average Annual Pay: $125,760

One-Year Change: +5.0%

Employees in Field: 9,670

Best-Paying State: Idaho

The Job: Diagnose and treat diseases and deformities of the human foot.

Originally posted at InjuryBoard by Mike Ferrara

Senator Delay, Senator Defend, And Senator Defend: Do The Job For Insurance Companies

Mike Bryant — Mon, 07 Dec 2009 23:17:14 GMT

We have talked about the insurance company strategy of Deny, Delay, Defend many times here at the Injurboard. A couple of companies have almost come right out and admitted that is their strategy. Say no. Some people will go away. Say you need more time. Some people will die or give up. Say Hell No! Some people will not have the resources or the help to fight. It is the way to push the unrepresented around.

Well should we be surprised the tactic is at the heart of what the Republicans are doing in the Senate with the Heath Care Bill? How do we know? They told us.

Here is the whole letter and supporting documents.

If you think maybe they are doing what's right for the consumer. Keep in mind, many of these same Senators had the chance to do something about health care in the past. They didn't. Just like insurance companies could pay the bills they are responsible for.

Originally posted at InjuryBoard by Mike Bryant

Consequences of Dental Negligence

Jim Lewis — Mon, 07 Dec 2009 19:32:54 GMT

Dental care and treatment mostly consist of non-invasive procedures and for the most part your visit to the dentist is usually routine and injury free. However, a small percentage of dental visits aren’t so kind. In fact, there can be certain complications that could arise as a result of simple procedures gone horribly wrong and that could bring life-altering changes in one’s oral health.

Examples of dental malpractice cases of which a patient can claim for compensation are:

-Nerve injuries affecting a patient’s ability to taste
- Nerve injuries causing paresthesia or permanent numbness in the tongue
- Complications arising from improperly completed crowns and bridges
- Dentists’ failures to take a patient’s relevant medical history into account before acting
- Certain complications from anaesthesia, even when releases are signed
- Unnecessary extraction of multiple teeth
- Extraction of wrong teeth

The examples listed above can be accountable as negligence on the part of the dentist. A dentist can also be sued for failure to do something which they could have done, such as failing to diagnose oral cancer and other serious oral problems. This is an act of omission by a dentist which could result in substantial harm to the patient. If you have been a victim of a dental negligence and malpractice, you should seek a competent personal injury lawyer who can help you in this matter.

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono service to consumers.

Originally posted at InjuryBoard by Jim Lewis

Malpractice Trial of James Woods' Brother (Michael): The Power of Apology in Litigation

Mark Bello — Mon, 07 Dec 2009 12:18:12 GMT

I am certain that I am not telling you something you don’t already know; an apology goes a long way to beginning to repair a damaged relationship or righting a wrong. Knowing that someone is truly sorry for the hurt he/she has caused is an important step in moving forward. An apology also serves to acknowledge a mistake, intentional or unintentional, and, further, serves as notice, even if unstated, that a person will try his/her hardest not to repeat the offending conduct.

However, the apology must be sincere; a “phony” apology will have an effect that is opposite of what the apologist may truly intend. If one says “I’m sorry”, one must mean it.

As you may or may not know, the family of Michael Woods, brother of actor James Woods, has settled a high profile, hotly contested medical malpractice lawsuit against Kent Hospital in Rhode Island. Yes, there was an undisclosed financial settlement, but that is not the point. There were two additional aspects of the resolution of the case; without them, the trial would, likely, have continued to a contentious verdict and endless appeals. The two additional features of the settlement, you ask? The first was a sincere apology from hospital president Sandra L. Coletta who had dinner with the actor the evening before the settlement and offered the apology for the hospital’s role in his brother’s death. The second important feature of the settlement was a promise from the hospital to invest $1.25 Million over the next five years into the creation of the “Michael J. Woods Institute” at Kent Hospital. A separate board (which will include a Woods family member) will run the institute which will assist in developing new procedures and training for hospital staff members. Coletta said:

“We know we’re not perfect at Kent Hospital… Mistakes were made. We can do better.”

The Woods lawsuit was filed two years ago, alleging that Kent staffers missed or ignored signs and symptoms of Michael Woods’ impending heart attack. Staffers allegedly left Woods unattended, in a hallway, on a hospital gurney, until the heart attack occurred and killed him. The highly publicized and contentious lawsuit included harsh public words of criticism for the hospital from James Woods. At a news conference announcing the settlement, James Woods praised Coletta and called her “very gracious”. This is quite a change in rhetoric; it is amazing what a sincere apology can accomplish. James Woods said that Coletta had apologized to his family and, further, admonished the press:

“Let’s not rub anyone’s nose in anything,” he said. “They did do it (the apology) and people don’t do it…I don’t want to put her in the position of saying it twice.”

He indicated that the apology was the framework for the settlement. The process started with a phone call from the hospital president; during the call, Woods said, he heard something he had been waiting to hear for over two years: Someone from Kent Hospital was saying “I’m sorry” for his family’s tragic loss.

Ironically, the definitive book on the subject of the effect of an apology to patient or a patient’s family who believes to have been wronged by a hospital or physician was written by someone named (I kid you not) Michael Woods; the book is called “Healing Words: The Power of Apology in Medicine”, by Michael Woods, MD. In the book, "the other Michael Woods" opines that the words "I'm sorry" do not seem to be in the average doctor’s playbook when conversing with patients or their families. Dr. Woods offers his colleagues his "four R's of apology", to help assuage patients and reduce the incidents of malpractice lawsuits. The “four R’s” are:

· Recognition - Knowledge that an apology is in order. Read the feelings of the patient and family.

· Regret - Respond with appropriate empathy. Express regret for what the patient or his family is going through. Acknowledge their feelings. Expressing regret is not an admission of guilt or fault.

· Responsibility - Own up to what's happened and be accountable, even if it was unforeseeable. Disclose and explain details that led to the outcome.

· Remedy - Do what it takes to make it right. Explain corrective measures to the patient and his family. Make them realize that you will not to abandon them.

Here is more from Dr. Woods:

"No matter what role you play (in the health care field)…at one time or another you've been a consumer of medical services. Try to remember the last time a doctor apologized to you, even for a relatively minor infraction like keeping you waiting. Can you recall a single instance? If you're a clinician, consider these questions: When was the last time you told a patient I'm sorry? When did you last hear another physician apologize to a patient?”

As an attorney with 33 years experience in handling personal injury and medical malpractice lawsuits as a litigator and, over the last 10 years, as a litigation funding specialist, I have never had the experience of hearing an apology from a medical professional to any client of mine. Lawsuit Financial has provided lawsuit funding for legal professionals all over the United States; not a single one of these professionals has ever reported that the impetus for settlement was a sincere apology. I invite legal professionals who are reading this post to comment on whether they have been involved in litigation where an apology was given and assisted in resolving the case.

Most medical professionals, I presume, are afraid that an apology will serve as an admission of liability. However, much litigation is conducted in anger; I submit, as does Dr. Woods, that fostering a less contentious legal environment, one of increased cooperation, should result in an improved, less adversarial, atmosphere for case resolution. Dr. Woods proposes an appeal to our basic humanity, an appeal to our capacity to forgive. A patient’s relationship with his/her doctor, positive or negative, will have a substantial impact on whether that patient will institute litigation for a medical mistake. And, an already positive relationship will only be enhanced by a sincere apology for a medical mistake. “Bedside manner” is an important tool for any physician. As Dr. Woods says:

“…when a doctor's interpersonal and communication skills are as good as his or her technical abilities, the results are good for everyone: better patient outcomes, more patient referrals, lower employee turnover, and better risk management."

Lawsuit Financial, the pro-justice lawsuit funding company, congratulates the Woods family and Kent hospital on sensibly resolving a contentious medical malpractice lawsuit. We sincerely hope that this resolution model becomes more prevalent in medical-legal litigation resolution.

Originally posted at InjuryBoard by Mark Bello

Neuromuscular Blocking Agents Wrong-Drug Errors at PA Medical Facilities

Paul Napoli — Mon, 07 Dec 2009 11:20:59 GMT

December 6, 2009

The Pennsylvania Patient Safety Authority released a report in its December 2009 Patient Advisory regarding wrong-drug errors of neuromuscular blocking agents at Pennsylvania medical facilities.

Patients are administered neuromuscular blocking agents (NMBAs) in emergency departments, intensive care units, interventional radiology areas and medical and surgical units to paralyze skeletal muscles during surgery conducted under general anesthesia and for patients requiring intubation for airway management. The drug renders patients unable to move or breathe and can be especially dangerous if administered to a patient not properly ventilated. They do not affect the patient’s level of consciousness, anxiety or ability to feel pain.

NMBAs are considered high alert medications because their misuse has the potential to cause catastrophic injuries or death. They should only be administered in a facility with proper equipment for intubation and oxygen administration and personnel trained to perform respiratory support and airway maintenance.

The Authority received 154 reports of medication errors involving NMBAs from Pennsylvania healthcare facilities between June 2004 and June 8, 2009. 77.9% of these reported events actually reached the patient and 9.1% resulted in harm to the patient, which rate of occurrence is nearly 13 times greater when compared to the rate of 0.7% for all medication errors reported to the Authority in that time period.

One instance of a NMBA wrong drug error included in the Authorities report:
A patient was admitted for a planned surgery. While in holding area of the OR prior to surgery, anesthesia staff started an IV [intravenous] infusion and administered what they thought was midazolam [Versed®] 1.6 mg IV. The patient immediately began flailing and reaching up to her face, and she became apneic. Ambu bag ventilation was initiated, and pulse ox was placed and was 90%. The patient was taken to the OR to be ventilated and monitored until patient awoke (approximately five minutes). The patient described being awake and paralyzed with vivid recollection.

Wrong drug errors involving NMBAs or any other medication may have contributing factors such as unsafe storage, similar product labeling or packaging, look-alike drug names or unlabeled syringes. The Authority outlined several risk reduction strategies to prevent wrong drug errors involving NMBAs including separate storage, warning labels, limiting access by dispensing NMBAs only from the pharmacy and computer reminders for the pharmacy to verify ventilatory assistance before dispensing the drug.

Some of the most common forms of hospital negligence include wrong-site surgeries, medication errors, surgical errors, development of hospital-acquired infections, improper use of anesthesia, improper treatment of a diagnosed medical condition, failure to monitor or stabilize a patient, or improper use of a medical device. Hospital negligence can result in serious injuries and even deaths. If you have been injured as the result of negligence while you were a patient in a hospital, or if a loved one died due to hospital negligence, you may be able to file a claim and collect compensation for pain and suffering, lost wages, medical expenses and other losses. Call Napoli Bern Ripka, LLP at 888-529-4669 today to discuss your legal options.

Originally posted at InjuryBoard by Paul Napoli

Where Do The Doctors Go?

Mike Bryant — Mon, 07 Dec 2009 09:56:00 GMT

There has been an going mantra from fans of tort reform that the main reason you need medical malpractice change is that doctors are quitting and fleeing states because of premiums. Many of the writers here at the Injuryboard have looked at this issue. There really doesn't seem to be support for the claim.

But, there are areas that are seeing reduced numbers of doctors. The question is why? A special report may have found some of them. The report found:

Doctors have been flocking to the area and surrounding Westchester County since the 1970s, drawn in part by an upper-class clientèle who demand top-notch medical care and have the means to pay for it.

The answer was that money is what drove doctors to an area. Is that why Texas , with it's high medical costs, is seeing more doctors in the area? As TortDeform recently pointed out:

Ask a doctor if they’d rather practice in White Plains, where everyone has health insurance and the doctor risks being sued, or if they’d rather practice in the California central valley (or any other poor, uninsured area) and be completely immune to malpractice lawsuits. Most doctors are going to pick White Plains because money matters.

It's time that we get beyond the myths and into what, not only makes sense, but also is the reality of what is going on. Minnesota doesn't have damage caps and it has medical facilities continuing to sprout up all over.

Originally posted at InjuryBoard by Mike Bryant

Heath Insurance Coverage Shouldn't Be A Deterrent To Rape Reports

Mike Bryant — Sun, 06 Dec 2009 19:51:00 GMT

Interesting series in the Huffington Post last week, which looked into the issue of what happens to women who make certain kinds of medical claims. Spotlighted were the cases of women who, after being raped, needed to go through courses of HIV protection measures or who needed post-traumatic care.

Imagine even having to consider whether to report the brutality of being raped because you might later be denied for a preexisting condition. This is just an almost unthinkable deterrent.

It is the quandary that so many insurance companies profit from. The reason for the ongoing fairy tail that there is a litigation explosion out there. They profit from getting as many people as possible to buy more and more coverage. You never know when you will be sued, get sick, suffer a loss. Alternatively, they scare the heck out of people from ever using their coverage. Rates will go up, I will be denied, and I won't be able to get future care.

Just another reason why the health care debate needs to be about the consumer. That real issues , involving real people have to be at the center of any debate. This is not a time for profits over people. It is also most likely the reason why, just like in auto claims, the insurance companies have gone to the old Delay, Deny, and Defend policy.

Originally posted at InjuryBoard by Mike Bryant

The Senate Health Care Debate Continues To Be About Money Instead Of Consumers

Mike Bryant — Sun, 06 Dec 2009 17:05:22 GMT

I've written a number of times about what the issues should be at the heart of the health care debate: making sure more people have insurance, helping businesses that are being crushed by insurance costs, and most importantly, making sure we have good care. Of course, to do these things we have to talk about how to pay for them. But, I've been watching the debate for a week now, and continue to see opposition speakers get up and ignore the consumer. You can't be surprised, considering so many of them have been there for a long time and for the most part never even brought up the health care issue.

Instead it has been a stream of classic Bush/Rove attacks against the lawyers. Today, Sen. Ensign offered an amendment which would limit contingency fees in medical malpractice lawsuits to 33% of the first $150,000 of the total amount recovered by judgment or settlement, and 25% of any amount recovered in excess of the first $150,000 recovered by such judgment or settlement. The amendment also calls for the periodic payment of successful judgments.

Who does this bill help? Less people would be able to bring meritorious claims and the liability insurance companies would save money. Bad doctors could keep making money or at least feel safer in their malpractice work. The defense could spend all the money they want and delay more claims. And when a jury says they are supposed to pay, they get more time and a payment plan to do it. How does this make sense to anyone?

This idea doesn't even directly save the system money. The proponents argue indirect savings, but every such argument has been shown to be inaccurate:

Saving through the reduction of defensive medicine:

Tort Reformers Ask: "What? You asked for an X-ray!" Bah! Humbug!,Steve Lombardi, October 19, 2009 10:14 AM

Saving of reduced junk law suits:

I sn't Tort Reform Only About Frivolous Cases?, Wayne Parsons , October 25, 2009 2:08 PM

Savings through better care:

Health care Reform Must Put Patients First Because Medical Errors Happen All Too Often, Christopher Nace, November 16, 2009 10:00 AM

The shining example of Texas:

Straight Talk on Tort Reform from Texas, Bret Hanna , November 23, 2009 11:20 PM

The contingent fee system is only way that many Americans have any chance of being allowed the "key to the courtroom." People who have already suffered an injury, have medical bills and no income can only fight when they have the backing and support to do so. It is a protection that helps fulfill the basics of the 7th Amendments and protects vital consumer protections.

93,000 people die each year from medical errors. This amendment does nothing to make things safer. It does nothing to insure people have a remedy when wronged. Most of all it does nothing to deal with the real issues of the health care debate.

When the amendment comes up this afternoon, it needs to be stopped.

Originally posted at InjuryBoard by Mike Bryant

Study Finds 51% of Patients in ICUs Suffer From Infections

David Mittleman — Sat, 05 Dec 2009 10:00:00 GMT

According to a new study, more than half of intensive care unit patients suffer from infections, increasing their risk of dying. The lungs were the most common site for infection, followed by the abdomen and bloodstream.

The study researchers analyzed data collected from 13, 796 patients, aged 18 or older, from 1, 265 ICUs from 75 different countries during one day (May 8, 2007). From their research, they found that 51% of patients were classified as infected with 71% on antibiotics for the treatment or prevention of infections.

Overall, the study found that the longer a patient stayed in an ICU, the more likely they were to acquire an infection. In fact, the infection rate for patients that had spent a day or less in the ICU was 32%, compared with those who had spent more than seven days in the ICU, who had an infection rate of 70%. Moreover, infections contributed greatly to the death rates of patients in the ICU. For example, the ICU death rate for infected patients was twice that of patients who acquired no infections. Most importantly, the study sheds light on the fact that infections are still a problem in most hospitals, and that it is important to provide infection prevention and management.

Originally posted at InjuryBoard by David Mittleman

Delay in Diagnosis: Failure to Timely Diagnose Stoke

Jean Martin — Fri, 04 Dec 2009 10:30:02 GMT

Caroline Monaghan was seen by her primary care physician, who determined that she possibly had blockage in her carotid arteries. Such a blockage, also known as stenosis, carries a great risk for a stroke. Monaghan then had an ultrasound, which found that she had 70% blockage in her left carotid artery. She was referred to a vascular surgeon who ordered an MRA/MRI. Based upon an incorrect interpretation of the MRA/MRI results, another doctor determined that Monaghan had only 50% blockage.

A carotid artery with 50% blockage is treated with aspirin therapy and monitoring. A test revealing 70% blockage can actually understate the amount of blockage, which could be as high as 99%, requiring emergency treatment.

Unfortunately for Ms. Monaghan, the incorrect reading of her MRA/MRI prevented her from having immediate surgical treatment. Days later, Ms. Monaghan suffered a massive stroke causing severe brain damage.

A Pennsylvania jury found the doctor who incorrectly read the MRA/MRI negligent and awarded over $5 million in damages. Recently an appeallate panel upheld the award.

Failure to timely diagnose and treat symptoms of a stroke can have dire consequences, as is evidenced by this case. When stroke victims are not treated quickly, they can suffer brain injury, paralysis, memory problems, and death. Quick diagnosis and treatment can prevent serious injury and death.

Know the warning signs and seek immediate treatment if you start experiencing any. And never be afraid to ask for a second medical opinion. You owe it to yourself and your family.

Originally posted at InjuryBoard by Jean Martin