Michigan Personal Injury Blog - Medical Malpractice

Woman's Experience at Hospital Exemplifies Problems with Mistaken Identity and Wrong-Site Surgeries

David Mittleman — Fri, 13 Nov 2009 10:12:47 GMT

When Kerry Higuera started bleeding three months into her pregnancy, she instantly rushed to the hospital. Fearful that she was miscarrying, she knew that seeing her doctor would most likely give her the best chance to save her pregnancy. Unfortunately, that decision ultimately changed her life for the worse.

Upon arriving at Banner Thunderbird Medical Center in Glendale, Arizona in February 2008, a nurse lead Higuera to a room and was instructed to wait for a doctor. However, just a few minutes later, another nurse poked her head into the room and told Kerry that the doctor wanted her to undergo a CT scan of her abdomen. Kerry questioned the nurse, but followed along anyway, confident that her doctor knew the correct procedures to perform.

After the CT scan, the nurse led Kerry back into a waiting room. Soon, the emergency room physician, two radiologists, and a representative from the hospital’s human resources came to speak with her. With such large crowd, Kerry was positive that it was bad news that she had miscarried. In fact, it was much worse news. According to the group of doctors, there were two Kerrys in the hospital that night: Higuera and another, younger woman named Kerry who needed the CT scan. Immediately, the hospital staffers offered to purchase Kerry Higuera flowers and also offered her coupons for free meals in the hospital cafeteria.

No large studies have been done on the effects of CT scans on fetuses. However, experts say that a fetus exposed to radiation can, in some cases, develop physical and mental growth problems. Kerry is being represented by legal counsel in the matter and appears to be moving toward litigation against the hospital, according to a CNN report. Her child, Nathan, is now 15 months old and shows signs of delayed growth. Kerry feels guilty for going to the emergency room that night in February 2008. However, her story is not unfamiliar: patients trust doctors and other hospital staff to be informed and aware.

Indeed, the five wrong-site surgeries at Rhode Island Hospital exemplify the fact that it isn’t uncommon for a hospital patient to fall victim to hospital errors. However, according to Jim Conway, the senior vice president of the Institute for Healthcare Improvement, there are some steps you can follow to avoid falling victim to wrong-site surgery or mistaken identity blunders. For example:

1. Say: "My name is Mary Smith, my date of birth is October 21, 1965, and I'm here for an appendectomy."

You might feel like an idiot, but say this to every doctor, nurse, and technician who takes care of you.

2. Say: "Please check my ID bracelet."

Hospital staff is supposed to confirm your identity in at least two ways, according to Nancy Foster, vice president for quality and patient safety policy at the American Hospital Association. One of those ways is to check your ID, or scan it if it has a bar code. Another way is to ask you for your name and date of birth.

Of course, you should check your bracelet to make sure the information on it is correct.

3. Say: "Please look in my chart and tell me what procedure I'm having."

If a nurse states that you're having an appendectomy and she's right, that's not enough, because that nurse won't necessarily be there with you in the operating room.

"Make sure the nurse is looking at your chart when she tells you what procedure or test you're having," says Ilene Corina, president of PULSE, New York, a grass-roots patient safety organization.

4. Say: "I want to mark up my surgical site with the surgeon present."

Hospitals these days often hand patients a pen and ask them to mark where they're going to have surgery. Corina says you should do it in front of the surgeon who will be with you in the operating room, and not just in front of the person who hands you the pen.

"If you mark it and the surgeon doesn't know about the marking, what's the point of marking it?" Corina asks.

5. Be impolite.

Foster, the executive at the hospital association, gives this example.

"If the nurse comes in and says, 'Are you Mary Jones?' and you're really Miriam Jones, you might just nod your head and say yes because you're too polite to correct her," Foster says. "Don't be polite."

Higuera now wishes she'd been impolite and followed her instincts.

Originally posted at InjuryBoard by David Mittleman

Michigan Medical Malpractice Claims Fraught With Obstacles

David Mittleman — Wed, 04 Nov 2009 15:58:00 GMT

Most of us know little or nothing about the practice of medicine. When we go to our doctors, for everything from a routine checkup to a serious emergency, we trust in them to conduct a proper and thorough examination and to formulate an adequate plan of care. Sometimes, as a result of the carelessness or inattention of the physician or other medical provider, a patient is harmed rather than healed.

Doctors and other medical providers have a legal duty to provide patients with treatment that meets the "standard of care." In layman's terms, the standard of care is what an ordinary and prudent doctor should do in a given situation. If a doctor breaches the standard of care, and the patient is injured as a result, the doctor has committed medical malpractice.

Medical malpractice is more than just a breach of duty, it is a betrayal of trust. However, Michigan law can make it very difficult and expensive for victims to hold the at-fault doctors accountable. There are numerous procedural requirements demanded by law that must be strictly followed. Failure to follow these rules precisely could (and often does) result in the dismissal of an otherwise valid medical malpractice claim. Injured victims have only two years to bring a claim for malpractice, while victims of other types of negligence have three years. Moreover, the victim is required to procure the testimony of other doctors in order to prove his or her case. This is an expensive requirement, and the injured person's doctors must have exactly the same credentials as the at-fault doctor or the claim may be dismissed.

In Michigan, even if a victim of medical malpractice can satisfy all the procedural requirements and prevail in court, their level of compensation may be limited. Medical malpractice damage caps operate to prevent severely hurt patients from fully recovering for their injuries.

Our office handles medical malpractice claims regularly, and our attorneys have extensive experience navigating Michigan's legal obstacle course. If you suspect that you or a loved one is a victim of medical malpractice, contact our office to see if we can put our expertise to work for you.

Originally posted at InjuryBoard by David Mittleman

Radiologists Reluctant to Admit Mammography Errors to Patients

David Mittleman — Tue, 03 Nov 2009 12:54:31 GMT

According to a new study released this month, radiologists may not be so honest when it comes to admitting their mistakes. Specifically, radiologists may not disclose mammography errors to patients, resulting in delayed treatment for progressive cancers.

The study, conducted by the departments of medicine and bioethics & humanities at the University of Washington, surveyed 364 radiologists at seven different Breast Cancer Surveillance Consortium sites located in separate geographical areas. The radiologists were given a hypothetical situation in which comparison screening mammograms were placed in an incorrect order, so that it appeared as if breast calcifications were decreasing in number in a patient when they had actually increased. The doctors were then told that there was an error, which resulted in a delay in treating the cancer. The radiologists were then asked to respond to three questions: 1) how likely they were to disclose the mistake, 2) what information they would share, and 3) what were their actual experiences and attitudes with malpractice.

The results of the study indicated that:

24% responded that they would “not say anything further to the patient”
31% responded that they would tell the patient that “the calcifications are larger now and are suspicious for cancer”
30% responded that they would tell the patient “the calcifications may have increased on your last mammogram, but their appearance was not as worrisome as they are now”
15% responded that they would tell the patient that “an error had occurred during the interpretation of your last mammogram, and the calcifications had actually increased in number, not decreased”

74% of the radiologists claimed that they were more reluctant to tell patients of mistakes because of fears over medical malpractice. Apparently, failure to report errors to patients was not an uncommon practice for many of the radiologists surveyed. In fact, 49% admitted that they had been sued for medical negligence. However, other factors also had an effect in the radiologists’ degree of honesty. For example, physicians have expressed concerns over increasing stress in patients after admitting a medical error. Furthermore, the study author also hypothesized that some physicians feel uncomfortable with their communication skills, and struggle to admit to a patient that they had mad a mistake. Despite these other factors, 15% is not a comforting amount of radiologists who say they would be completely honest about their mistakes. Hopefully, continued studies like this will help to improve doctor and patient communication.

Originally posted at InjuryBoard by David Mittleman

Kansas Supreme Court Called to Protect Patients From Tort Reform

David Mittleman — Mon, 02 Nov 2009 16:35:06 GMT

Kansas, like Georgia, will be visiting the problem of tort reform this year as it decides whether or not caps on damages in medical malpractice cases violates a patient's rights after he or she has been injured by a doctor's negligence.

The legal battle surrounds a wrongly removed ovary. Amy Miller of Eudora, Kansas, went to have her right ovary removed. Dr. Carolyn Johnson unfortunately removed the left ovary instead. Ms. Miller filed a lawsuit and a Kansas jury comprised of her peers returned a verdict for $759,680.

However, because of laws in Kansas that place limits on damages for pain and suffering (noneconomic damages) in medical malpractice, the Judge in the case stripped $150,000 of the verdict that had to do with future noneconomic loss.

Attorneys for Ms. Miller argue that Kansas's law on medical malpractice caps violates Kansas's constitutional guarantees to a jury trial.

In addition to the Constitutional violation, her attorney argues that it violates the seperation fo powers by allowing the Legislature to unnecessarily take away a power vested to the judiciary and juries.

Most important, however, is the fact that caps on noneconomic damages do nothing but place the greatest limitations on the people who have been injured the most. Follow us as we let you know how these pivotal cases are decided across the country.

Originally posted at InjuryBoard by David Mittleman

The Doctor Is In and He Says Tort Reform Isn't the Cure

David Mittleman — Wed, 28 Oct 2009 16:26:12 GMT

Even doctors are starting to speak out about our insurance crisis. I recently read a post online by Rahul K. Parikh, M.D. that had me nodding my head. Dr. Parikh went straight to task and took on the proponents of "tort reform" (Crooked Justice) with the following line:

"There's nothing "sure or quick" about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare's price tag, and rising malpractice premiums have had very little impact on access to care."

Why does he get it? It's because he's willing to look at the facts and put people first, not profit, not even his own profit. First, he noted that no matter how you look at it, malpractice lawsuits aren't the major factor in rising health care costs. As Dr. Parikh put it:

malpractice costs account for less than 2 percent of healthcare spending. Saving 2 percent of the over $2 trillion we spend on healthcare isn’t going to bend the cost curve.

Second, malpractice lawsuits are not frivolous. By and large, if you're willing (both as a client and a lawyer) to go through the incredible expense of suing a doctor or hospital, something truly significant has probably happened to you. Dr. Parikh reviewed a Harvard study published in the New England Journal of Medicine. He nails it on the head when he says:

Most of the suits were not frivolous: Almost two-thirds of cases involved errors by doctors.
Seventy-three percent of injuries in which a doctor committed an error resulted in payments. Seventy-two percent of cases in which there was an injury not due to physician error did not result in payment. Those conclusions do not paint the picture of a medical-legal system burdened by ambulance-chasing lawyers and their litigious clients.

Yes, that's right. Lawsuits were more likely to result in payment when the doctor made an error. Lawsuits were more likely to result in no payment if there was no error. Where's the frivolity? It's PR propoganda.

What isn't propoganda is the following. Tort reform will not save lives. Giving doctors and hospitals less incentive to improve practices and maintain care at high levels only puts us in jeopardy. Maybe that's what the doc meant when he wrote:

So for those who push tort reform as a panacea for a sick healthcare system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper.

Originally posted at InjuryBoard by David Mittleman

Rhode Island Hospital Operates on the Wrong Site for Fifth Time Since 2007

David Mittleman — Mon, 26 Oct 2009 09:20:25 GMT

A surgeon at a Rhode Island Hospital committed malpractice by mistakenly operating on the wrong part of a patient’s hand. Now, health officials are investigating how this mistake could have occurred. But even more alarming is that this isn’t the first time this happened: the same Rhode Island Hospital has a history of operating on incorrect body parts. In fact, this is the hospital’s fifth wrong-site surgery since 2007.

According to Timothy Babineau, the hospital president, the surgeon operated on the wrong finger last Thursday. The patient was meant to have surgery on two fingers, but instead underwent a procedure on the joint of a different finger. So far, the hospital has not released the name of the patient or the surgeon involved in the incident. The hospital also says that it will investigate what went wrong alongside the Rhode Island Department of Health.

Rhode Island Hospital was fined $50,000 after brain surgeons operated on the wrong side of the brain in three separate cases in 2007. The fourth case of wrong-site surgery involved a child who needed a cleft palate surgery. In that case, the wrong side of the child’s mouth was operated on.

http://www.youtube.com/watch?v=cUMgyoVIqNE

Our office has recently and successfully handled a case in which the wrong finger was operated on and received a substantial settlement for our client in the matter. If you feel a doctor has committed malpractice in a similar fashion against you, do not hesitate to contact us to discuss your case.

Originally posted at InjuryBoard by David Mittleman

Mayo Clinic Study Finds Doctors' Medical Mistakes Increase When Fatigued or Distressed

David Mittleman — Thu, 24 Sep 2009 09:15:58 GMT

Mayo Clinic researchers aren’t the first to discover some of the main causes of medical errors among medical residents, including fatigue and distress. However, a recent study by The Mayo Clinic also found that financial woes, family concerns and other elements of distress contributed to medical mistakes by medical residents.

The researchers surveyed 430 internal medicine residents, posing questions that specifically asked about medical errors, as well as the residents’ quality of life, fatigue, burnout, depression, and sleepiness. Of the 378 doctors who responded to the survey, 39% reported having made a medical error. Moreover, the link between fatigue and errors was evident: for every point increase in the fatigue score, doctors were 14% more likely to make a medical error. Similarly, for every point increase in the sleepiness score, doctors were 10% more likely to make a mistake.

The report, published in the Journal of the American Medical Association, outlines how each specific type of stressor in medical residents contributes to mistakes. In fact, according to the report, fatigue, lower quality of life, burnout, and depression all independently led to medical errors among internal medicine residents. Unfortunately, thus far, physician training has emphasized fatigue as the main factor contributing to medical errors. However, from the research, The Mayo Clinic researchers were able to recommend training guidelines to combat the impact of other outside stressors on medical errors. Specifically, the researchers emphasize that physician training should continue to address resident fatigue, but other distress factors should also be addressed to help improve patient safety.

Nearly 100,000 people in the U.S. die each year from preventable medical errors. Currently, no mechanism exists to deal with the distress residents experience, or to monitor whether a hospital is complying with regulations to keep doctors from working for too many hours. The Mayo Clinic research is an important step in helping put theory into practice to create a safer medical environment for doctors and patients alike.

Originally posted at InjuryBoard by David Mittleman

South Florida Man's Family Wins $14 Million in Medical Malpractice Lawsuit

David Mittleman — Tue, 22 Sep 2009 13:37:26 GMT

Prior to an emergency room visit to a South Florida hospital, Francis Ziadie was an optometrist and father of four. However, he is now a shadow of the man he once was—paralyzed and bedridden for life. However, Ziadie’s family won a $14 million malpractice verdict last week, including $5 million for his medical care, $8 million for pain and suffering, and $250,000 for each of his minor sons.

One day in 2002, Ziadie began experiencing dizziness and slurred speech. He immediately went to Memorial Regional Hospital in Hollywood, Florida. Luckily, his symptoms began to improve after doctors gave him aspirin and the anti-platelet medication, Plavix. Later, tests revealed that Ziadie had not suffered a stroke, but radiologist Dr. Hoang Dinh Doung placed a mesh stent in Ziadie’s carotid artery to help improve the blood flow anyway. However, during the procedure Dr. Doung punctured Ziadie’s blood vessel. After waking from the procedure, Ziadie still complained of slurred speech and weakness on his right side. Nevertheless, nurses sedated him instead of addressing his complaints. As a result, Ziadie suffered major bleeding in his brain, which also caused massive pressure on his brain stem, damaging his brain tissue and causing paralysis.

Ziadie now lives with his 76-year-old mother and gets around the house in a wheelchair, although he spends most of his time in bed. Ziadie also requires round-the-clock care, which he will continue to need for the rest of his life. Mr. Ziadie’s attorney successfully argued that homecare is the best option over care in a nursing facility, which Mr. Ziadie’s mother has vowed to provide.

Originally posted at InjuryBoard by David Mittleman

Tort Reform Revisited: Why It Isn't the Answer to All Our Healthcare Cost Woes

David Mittleman — Mon, 21 Sep 2009 09:24:12 GMT

Yesterday I wrote about the curious case of McAllen, Texas and how putting caps on medical liability payouts wasn’t the magical cure for reducing the rising cost of healthcare. Nevertheless, doctors and Republicans seem to have a one track mind when it comes to this issue. For decades, these two groups have argued for tort reform, despite studies and real life case studies that show that capping jury awards in malpractice cases does nothing to lower health care costs.

Unfortunately, now President Obama wants to follow the same path. Deemed an “olive branch” to bring together Democrats and Republicans on this sensitive issue, the President recently directed the Health and Human Services Department to spend $25 million to help states and health care systems find alternative ways to resolve medical malpractice claims. Nevertheless, he has declined to put a national cap on malpractice awards, much to the chagrin of some doctors and Republican lawmakers.

Tort reform advocates like to argue that putting caps on malpractice awards will help decrease medical costs for doctors, which also means reduced costs for patients. Indeed, recent studies by the nonpartisan Congressional Budget Office showed that putting caps on medical malpractice awards would reduce doctors’ insurance liability payouts, which, in turn, would reduce medical fees for patients. However, the reduction in costs is extremely modest—in fact; national healthcare spending would go down by a meager .2 percent. Medical errors cost 44,000 people their lives each year: that’s more than the number that are killed by highway accidents, breast cancer, or AIDS annually. In light of those daunting statistics, it hardly seems worth the .2 percent savings in national healthcare spending to take away patients’ legal remedies for medical injuries that were caused by no fault of their own.

Michigan has some of the nation’s toughest caps on medical malpractice payouts: $410,800 for non-economic damages such as pain and suffering. So patients aren’t getting a windfall payout when they do sue, despite what some tort reformers would like you to believe. Instead of always blaming the lawyer or the “sue-happy patient”, maybe it’s time to point our fingers at the malpractice insurance industry that charges astronomical amounts simply because they can. More importantly, let’s focus on improving patient safety to being with.

Originally posted at InjuryBoard by David Mittleman

Georgia Supreme Court Considers Whether "Tort Reform" Equals Crooked Justice

David Mittleman — Wed, 16 Sep 2009 16:04:16 GMT

The Georgia Supreme Court heard oral arguments on a case that could invalidate the insurance industry's attempts to provide immunity to the most negligent doctors and deny recovery to the most devastatingly injured patients.

When 75-year-old Betty Nestlehutt's skin on her face started to die after her plastic surgeon cut off blood flow to her face, the gaping wounds from her temple to her chin paled in comparison to the permanent scarring endured in her heart. Surely, a jury would do their very best to fully compensate her for her pain and suffering.

A Fulton County jury did, in fact, award her a substantial $1.15 Million verdict for non-economic damages (including $900,000 for her own pain and suffering) along with $115,000 for past and future medical expenses. This was precisely the type of result that juries spend hours deliberating, missing days of work, hearing evidence, determining the facts of the case. Little did they know that their decision would be undercut by Georgia's "Tort Reform" law.

Under Georgia's law, which mirrors the laws in many other states and which Republicans in Congress are all too ready to impose nationally, the role of the jury is unilaterally undermined because no matter what their findings are for noneconomic pain and suffering, Georgia had a maximum damages cap of $350,000 ($550,000 less than what this jury thought Ms. Nestlehutt merited).

Courts all over the country are handcuffed by the laws, which often conflict with Constitutional protections for the right to jury trials. Lawyers are challenging a similar law in Indiana where the cap is higher than in Georgia.

Ultimately, these "tort reform" caps are really nothing more than Crooked Justice for insurance companies and negligent doctors. As the lawyers for Ms. Nestlehutt argued, the most injured patients are blocked from gaining their full compensation, and the most egregiously negligent doctors will never have to full pay for their negligence. In a country that values the right to a trial by jury, we should not let insurance lobbyists devalue that time honored and cherished tradition.

Originally posted at InjuryBoard by David Mittleman