Utah Personal Injury Blog - Medical Malpractice

New York State Bar Takes Stand Against Tort Reform

Bret Hanna — Sun, 15 Nov 2009 14:33:10 GMT

The New York State Bar Association took a strong stand against tort reform last Friday. President Michael Getnick issued a statement calling on the U.S. Senate to reject calls for caps on pain and suffering damages in medical malpractice cases as part of health care reform. Here is the press release:

ALBANY, NY (11/13/2009)(readMedia)-- New York State Bar Association President Michael E. Getnick (Getnick Livingston Atkinson & Priore, LLP and of counsel to Getnick & Getnick of New York City), in a letter today, called on the U.S. Senate to reject any proposals that would discriminate against medical malpractice victims while also jeopardizing public safety by capping the amount of compensation that victims could receive for pain and suffering. Such proposals have been raised in the debate over national health care reform legislation.

In his letter to U.S. Senators Charles Schumer and Kristin Gillibrand, President Getnick restated the State Bar's long-held position that the authority to change medical liability laws should rest with the states and not the federal government.

"As Senate activity on this topic continues, I want to reiterate our long standing objections to those tort and medical malpractice reform proposals that have resurfaced as part of the current debate," wrote Getnick. "We object to legislation to cap pain and suffering compensation for victims of medical malpractice. Such caps would unjustly discriminate against classes of accident victims who suffer devastating physical and psychological losses.

"For over 200 years the authority to promulgate medical liability laws has rested with the states, which are the repository of experience and expertise in these matters," Getnick noted in the letter. "I am pleased that the House, in passing Bill 3962, The Affordable Health Care for America Act, refrained from including provisions advocated by some members that would have resulted in federal tort laws encroaching upon the authority of the states."

Getnick noted that legislation recently passed by the House of Representatives would provide for incentive payments to states that adopt alternative medical liability laws without imposing caps on damages and other unacceptable measures. According to Getnick, providing such incentive payments to states is an appropriate alternative to proposals that would impair the ability of victims to seek remedy in the justice system.

"In assessing the current tort system, it is at least as important to consider the victims of malpractice in comparison to those who cause them personal injury," he said. "We have seen in the past that the attack of tort reformers is a movement that favors cost savings over quality and that emphasizes the corporate bottom line over safety of the public.

"As the health care debate progresses with you and your colleagues in the Senate we strongly urge Congress to focus on health care problems and to ensure that the individual victims of medical malpractice are not placed in a secondary position as compared to those who have created the very victims from which they seek protection in the name of tort reform," Getnick concluded.

A copy of the letter can be found here. This very public support for the civil justice system and the rights of those injured by medical malpractice should be applauded and endorsed by Bar Associations across the country. In addition, all citizens interested in preserving their rights should contact their senators and convey the same message.

Originally posted at InjuryBoard by Bret Hanna

Tort Reform Myth Debunked - Damages Caps do not Lower Malpractice Insurance Premiums

Bret Hanna — Thu, 12 Nov 2009 16:49:08 GMT

We've all heard the claims. Jackpot payouts in medical malpractice cases have caused malpractice insurance premiums to go so high that doctors are leaving certain specialties or leaving the profession altogether. To combat this, tort-reformers everywhere call for caps on non-economic damages as a magic bullet for fixing this "problem." Utah is no different.

The Utah Medical Insurance Association, or UMIA, bills itself as the "premier non-profit professional liability insurance in the Intermountain West." The UMIA website offers the following description of the company:

UMIA is a physician owned and directed medical liability insurance company. Practicing physicians are its foundation and strength. As UMIA enters its 28th year of service of the physicians of the Intermountain area, the vision of the future includes a dedication to:

Maximizing the value of the insured’s premium dollar

Reducing patient injury by improving patient care

Providing innovative leadership in fair patient compensation for culpable liability claims

Developing effective practice and risk management programs

The Utah Medical Association started UMIA in response to a loss of affordable and available medical liability insurance because the commercial multi-line insurers providing coverage at that time withdrew from the market or raised rates astronomically. UMIA is a reciprocal inter-insurance exchange providing liability insurance in Idaho, Montana, Utah, and Wyoming.

UMIA is financially strong with assets at 185.9 million and 43.1 million in surplus. The Company is rated (A-) Excellent by the AM Best Company and has held this rating for many years. A major strength is the leadership provided by the Board of Directors and Board of Governors, both comprised of practicing physicians who understand the needs, trends, concerns, and pressures of current medical practice. Competent and responsive service to policyholders had been and remains the essential element of the Association’s mission and success. Risk management and loss prevention activities remain a high priority.

The bulk of UMIA policies are written in Utah which has been "tort-reformed." Here is a list of "reforms" that have passed in Utah:

Shortened Statute of Limitations §78B-3-404

Statute of Repose (claims expire even if patient unaware of injury such as undiagnosed cancer) §78B-3-404

Abrogation of Collateral Source Rule (negligent care provider gets the benefit of insurance that the patient paid for or that taxpayers provide) §78B-3-405

Cap on Noneconomic Damages §78B-3-410

Periodic Payment of Future Damages Delaying by Years or Decades the Patient’s Receipt of an Award §78B-3-414

Arbitration Agreements §78B-3-421

Restriction on Informed Consent Claims §78B-3-406

Restriction on Warranty, Guaranty and Contract Claims §78B-3-408

Limits on Use of Admissions of Fault §78B-3-422

Governmental Immunity Act Time Limits for Claims against the University, residents and other trainees

Governmental Immunity Act total damages limits in certain circumstances §63G-7-604

Immunity for Emergency Medical Assistance (including paid services) provided by governmental employees §63G-7-302(5)(s)

Increased Burden of Proof for Emergency Room Care §58-13-2.5 et seq.

Notice of Intent Required Before Lawsuit §78B-3-412

Prelitigation Screening Mandatory Before Lawsuit §78B-3-416

Federal Tort Claims Act limits on Claims Against the VA Hospital

Absolute Immunity for 911 Calls §69-2-6

Prohibition on Access to and Use of Peer Review, Incident and Credentialing Materials §26-25-1

Limit on Attorney Fees §78B-3-411

Limitation on Therapist’s Duty to Warn §78B-3-604

Limitation on Damages for Loss of Consortium §30-2-11(7)

Good Samaritan Act §78-4-501

Extension of Good Samaritan Act and Health Care Providers Immunity from Liability Act to nurse practitioners §58-31b-701

Immunity for care provider who renders care at scene of emergency without duty to respond §58-13-2

Immunity (except for gross negligence or willful misconduct) for uncompensated care §58-13-3

Immunity for certain care providers during emergency declarations §26-49-501

Retired health care provider volunteers are immune from suit if care is uncompensated §58-81-104(5)

Separate prior trial on any statute of limitations issue §78B-2-114

Most of these "reforms" have been in place for years, if not decades, so there can be no argument that not enough time has passed to evaluate their effectiveness. This is particularly true when looking at the effectiveness of the caps on non-economic damages which injured patients have suffered with for a long, long time. Given that, let's look at 5 years worth of historical data taken from UMIA's 2008 Annual Statement:

In 2008, gross premiums written were $70,607,300, up $16 million from 2004.
In 2008, the total assets of UMIA were $230,718,580, up $64 million from 2004.
In 2008, the total losses paid were $26,601,949, up $13 million from 2004, but only $2.5 million from 2006.

These numbers demonstrate that UMIA took in almost 3 times more just in premiums in 2008 than they paid out in claims and a similar ratio applies for each year. Moreover, these numbers underscore that damages caps do not lower premiums. Just because tort reformers repeatedly claim a connection between damages caps and lower premiums does not make it so.

Originally posted at InjuryBoard by Bret Hanna

Tort Reform and Unintended Consequences

Bret Hanna — Thu, 15 Oct 2009 20:15:40 GMT

Medical care providers are people and people make mistakes - that's it, plain and simple, and the facts can't be disputed. An editorial which appeared this week in the Salt Lake Tribune offers the following statistics:

The other side of the coin is that doctors and hospitals regularly kill people through their negligence. In 1999, the Institute of Medicine of the National Academies reported, "Based on the findings of one major study, medical errors kill some 44,000 people in U.S. hospitals each year. Another study puts the number much higher, at 98,000. Even using the lower estimate, more people die from medical mistakes each year than from highway accidents, breast cancer, or AIDS."

Tort reformers, however, love to sweep such statistics under the rug and focus on things like so-called defensive medicine." MedicineNet.com defines this as:

Defensive medicine: Medical practices designed to avert the future possibility of malpractice suits. In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient. Doctors may order tests, procedures, or visits, or avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability. Defensive medicine is one of the least desirable effects of the rise in medical litigation. Defensive medicine increases the cost of health care and may expose patients to unnecessary risks.

A debate rages about whether defensive medicine is a statistically significant problem but if it is, the doctors who practice it should be hiring lawyers - not medical malpractice defense lawyers, criminal defense lawyers. If they are ordering tests, procedures or care visits to reduce their exposure to malpractice liability, they are violating the Hippocratic Oath and committing insurance fraud because they are being reimbursed for unnecessary care.

In any event, tort reformers have successfully sold their "we need caps on damages to reduce malpractice insurance premiums and to reduce defensive medicine" bill-of-goods to a number of legislatures including the one here in Utah. We have a draconian Governmental Immunity Act, with a one-year notice of claim requirement and a total damages cap that shields every governmental medical provider and facility, from the smallest rural county hospitals to the giant University of Utah Health Care system. For those medical providers not so protected, we have a short two year statute of limitations, a mandatory pre-litigation review process that can add up to a year to the litigation process, and caps on general damages.

There is no evidence that these "reforms" have had the intended effect - malpractice insurance premiums are dictated by how well insurance companies are doing in the stock market, not how much they pay out in claims. And doctors still claim that they worry about being sued and practice medicine in response. So much for the intended effects, but what about what may not have been intended?

Again, people are routinely injured and killed by the negligence of medical providers. These people, who could be you, your family members or your friends, are entitled to recover for the real economic, physical and emotional losses associated with such deaths and injuries. Not surprisingly, people who have been victimized by medical negligence focus first on grieving the loss of a loved one or, for those not killed, getting better if they can. Figuring out how to deal with their losses by examining potential remedies often comes down the road.

In many states, such as Utah, that natural time lapse can pose real problems that may undermine those remedies. Medical malpractice cases are complex and time intensive. And they are expensive - very expensive. Attorneys who help the families of the dead and the injured only get paid if there is a recovery. And they can invest tens of thousands of dollars of their own money on costs associated with getting a case to resolution. These economic realities dictate that only meritorious cases be pursued, but it takes time to figure out which cases have merit and which do not. Medical records must be gathered which can take months. Once gathered, records must be reviewed by a qualified expert to determine if there was negligence which caused an injury for which a legal remedy is available.

With such short time lines for pursuing claims, however, lawyers representing the injured are often forced to file notices of claims and other documents to initiate claims before a full detailed analysis of all of the potential players and elements of various claims can be completed. If they don't, the claims of their clients may be barred. The result is that some cases may be dismissed voluntarily down the road, or individual providers may be let out of a case, because after there is time for a full vetting it turns out there is not a good case against them.

Medical providers complain all the time about a "shotgun" approach to medical malpractice cases - pursue everyone in sight for everything under the sun and sort it out later. But that is not what is happening. Attorneys representing victims are making the best decisions they can and taking the steps necessary to protect the rights of their clients before they are lost. If they are forced into initiating a claim because of deadlines and they later determine that they don't have a strong case, they do the right thing and end the process. Such unintended consequences of tort reform should not be replicated with the imposition of additional limitations on access to justice.

Originally posted at InjuryBoard by Bret Hanna

Goal of Standardized Care is to Reduce Medical Mistakes

Bret Hanna — Thu, 08 Oct 2009 22:06:28 GMT

According to an article in the National Journal Online, the local medical behemoth/monopoly, Intermountain Healthcare (IHC), has stumbled onto a concept that can help reduce infant mortality rates. The American College of Gynecologists and Obstetricians (ACOG) issued a statement to physicians indicating that births should not be induced before a fetus reaches 39 weeks. IHC was one medical provider that heeded the suggestion and then it reviewed its electronic medical records to determine if it could identify a drop in the number of newborns sent to the ICU or who died. IHC estimates that for the review period, between 400 and 500 newborns were not sent to the ICU and, accordingly, IHC adopted a system-wide policy to not induce births before 39 weeks.

IHC says that the lesson to be learned here is that routines and consistency are very important in delivering quality and effective medical care:

"It's our belief that most of the problems that happen in health care are not because the right thing isn't known, but because the right thing isn't done consistently," said Greg Poulsen, senior vice president of Intermountain.

Administrators at these hospitals preach "evidence-based medicine," where the best practices are analyzed, identified and then made the norm. Standardizing care, they say, can reduce mistakes that keep patients in the hospital longer than needed. "Last I heard, no pilot intentionally landed with the wheels up, but that used to happen all the time before they had checklists and automated routines," Poulsen said. "What we've discovered is the thing that was most likely to keep people alive was being very routine in care."

Now the concept has developed to the point that it is being included in the various health care reform plans circulating through Congress. The idea is that the secretary of Health and Human Services (HHS) will be required to set up standards for electronic records systems that medical providers will have to utilize under the threat of a financial penalty or decreased funding.

David Blumenthal, a representative of HHS, has indicated that ease of use will be key for physicians and that cost concerns need to be addressed:

Administrators at these hospitals all warned that legislation can be designed to encourage electronic records, but the system has to be one doctors will actually use. David Blumenthal, national coordinator for health IT at the Department of Health and Human Services, is being tasked with overseeing the switch to electronic records and certifying new records systems. Blumenthal said that one basic capability he was looking for was computerized order entry, a system to centralize doctor recommendations for the next step in care, from a drug prescription to referrals to a specialist.

"Basically, if you want to do anything to a patient, you have to find that patient's record on the computer and launch a program that prompts you to type in the order," Blumenthal explained. The computer could then alert you to a generic drug option, any negative drug interactions, allergies or other complications. He also said the better systems would have pre-formed sets of recommendations to eliminate oversights.

Blumenthal said he expected health IT systems will soon be the standard in hospitals, despite the fact that only 13 percent of doctors currently use even a basic electronic system, according to a survey in the New England Journal of Medicine. (Four percent report having a full e-records system.) Doctors' slow adoption is largely a factor of cost concerns and a lack of financial incentives. The health care bills would offer bonuses to providers using an electronic system and even some penalties for not using one.

Finally, Blumenthal noted that uniformity across the country will be critical to the success of a comprehensive electronic records system:

Another concern was that the system had to be uniform across the country so that data could be shared with hospitals across city or state lines. Blumenthal said he was enlisting states in that regard and that his team was working on the Nationwide Health Information Network, which would be a secure "network of networks" for sharing health information across the country.

So while IHC can be criticized for many things, many things, given the nature of its domination of the health care market in Utah and southeastern Idaho, it should be praised for embracing the notion of standardized health care. Let's hope that any health care reform that passes embraces it as well.

Originally posted at InjuryBoard by Bret Hanna

House Judiciary Committee Votes to Undermine Feres Doctrine

Bret Hanna — Thu, 08 Oct 2009 17:36:22 GMT

The Feres Doctrine, derived from a 1959 U.S. Supreme Court decision, precludes active duty military members from suing the government for medical malpractice regardless of where or how the malpractice occurred. Yesterday, in a 12 -14 vote cast along strict party lines, Democratic committee members voted to remove the ban allowing active duty military to sue for malpractice in non-combat situations. If the bill passes into law, the ban will remain in effect for malpractice which occurs in combat situations. It is expected that the full House will pass the bill.

The bill was debated for an hour before the vote, with opponents claiming that passage will increase health care costs by 2.9 billion over 30 years. Republicans also claimed that the bill is simply a boon for trial lawyers.

Supporters of the bill highlight that allowing the suits at issue to move forward is simply a matter of fairness. Family members of active duty military can currently sue if they are the victim of malpractice by a military doctor or at a military facility, but this bill confers that right, enjoyed by every other American, on those who are actually serving the country when they are vicitimized by medical negligence.

The bill was filed by U.S. Rep. Maurice Hinchey, D-N.Y., because of the tragic case of Marine Sgt. Carmelo Rodriguez. Sgt. Rodriguez's cancer was misdiagnosed as a boil by several military physicians. He died at his upstate New York home in 2007. But there are other cases which highlight the inherent unfairness of the Feres Doctrine. I recently blogged about the case of Sgt. Adele Connell, a Utahn who is the victim of a botched breast cancer surgery at Walter Reed Army Medical Center. The conclusion I reached after I looked at Sgt. Connell's case is the same I would reach today - basic notions of fairness dictate that the Feres Doctrine disappear into the annals of military history.

Originally posted at InjuryBoard by Bret Hanna

New Ad Running Against Medical Malpractice Caps

Bret Hanna — Fri, 02 Oct 2009 15:03:42 GMT

Seven consumer groups have joined together to run an ad urging Congress to oppose including medical malpractice limits as part of health care reform. The groups include Alliance for Justice, Public Citizen, Consumer Watchdog, National Consumers League, Center for Justice & Democracy, National Research Center for Women & Families, National Women's Health Network and National Research Center for Women & Families.

The ad, which ran yesterday, can be found here http://centerjd.org or http://centerjd.org/archives/spotlight/jpg/ConsumerGroupAd.jpg.

The groups offered a variety of comments in support of running the ad:

"America is suffering from an epidemic of medical errors," said David Arkush, a program director at Public Citizen. "Reducing medical errors is not difficult, and it would save scores of thousands of lives and billions of dollars. If Congress wants to serve the American public rather than special interest groups like doctors and insurance companies, then it should focus on improving patient safety, not stripping patients of their legal rights."

"Innocent Americans injured by cost-cutting hospitals and negligent doctors should not be a political sacrifice in the quest for health care reform," said Carmen Balber, Washington Director for Consumer Watchdog. "State malpractice damage caps and other limits on liability for negligent health care providers have locked injured patients out of court, degraded the quality of health care and denied justice to too many families."

Joanne Doroshow, Executive Director of the Center for Justice & Democracy, said, "The arguments used to support liability restrictions are unfounded. Medical malpractice insurance claims and premiums have both been trending downward for years. Premiums and claims are each less than one percent of health care costs. The best way to reduce malpractice deaths, injuries, claims and lawsuits is to reduce medical malpractice."

In Utah, injured patients suffer with a general damages cap but it is not as onerous as some. Over time, the cap has adjusted to an amount which is better than many that stay at shockingly low amounts such as $250,000, That said, the caps have not achieved the stated goal of reigning in insurance premiums. Here, as everywhere, premiums are driven by how insurance companies do in the stock market, not by how much they pay out on claims. Let's hope Congress gets it right on this issue.

Originally posted at InjuryBoard by Bret Hanna

'Candy Man' Going to Prison

Bret Hanna — Sat, 25 Jul 2009 12:30:00 GMT

Dr. Warren Stack, the so-called 'Candy Man,' is off to prison to serve the eight year sentence Judge Tena Campbell handed down in federal court in Salt Lake City. The charges against Stack stem from his practice in Murray where he was doling out prescription drugs to as many as 80 patients a day. He would take cash for the drugs and then charge insurance companies for examinations never performed. Stack pleaded guilty to possession and distribution of a controlled substance, money laundering and health insurance fraud, but he did not plead guilty to causing anyone's death - although he is clearly responsible for doing so.

Matters came to a head on May 16, 2007, when he was arrested at his office and about a week later, the Utah Physicians Licensing Board suspended Dr. Stack's medical license. That December, a grand jury issued an 18-count indictment . Two of Stack's employees where also charged with conspiracy for their roles in peddling the pain pills. Counts 2 through 6 of the indictment relate to deaths:

Counts 2 through 6 of the indictment charge Stack with knowingly distributing and dispensing drugs without a legitimate medical purpose and outside the bounds of medical practice that resulted in the deaths of five individuals, including the April 9, 2007, death of Tyler Lugo; the October 23, 2005, death of Thomas Brandon Scott; the May 4, 2007, death of Kaydie Winters; the August 23, 2006, death of Thaison Roark; and the March 10, 2005, death of Michael Barker. The drugs included Oxycodone and Methadone Hydrochloride.

The dangers of prescription drugs are well known and the abuses are many - all the more reason to throw the book hard at those who are in a position of trust when they violate that trust and become part of the problem. Is eight years enough?

Originally posted at InjuryBoard by Bret Hanna

Endoscopic Vein-Graft Harvesting for Bypass Surgery: Is it Safe?

Mark Williams — Tue, 21 Jul 2009 19:55:17 GMT

In the earlier days of coronary bypass surgery, patients would not only have to endure the intense pain originating from the chest incision and chest cracking necessary for the surgeons to get to the heart, they also complained bitterly about the pain caused by the open surgical removal of a saphenous vein in their leg used for grafting purposes. These could leave the heart surgery patients with long incisions- at times running from the groin to the toe. Open grafting scars would add to the recovery time, cause unnecessary increased pain, and increase risk of infection. As the techniques improved over the years, the heart surgeons began to find more humane and less invasive and painful ways to harvest grafting veins. Endoscopic harvesting was developed to reduce the pain, the size of the scar, and infection risk. In the endoscopic approach, small cuts are made and a small scope and tools are used to locate and pull the veins through the small incisions. Less invasive is always better- so they thought.

The New England Journal of Medicine recently published a study that called into question the safety and advisability of such less invasive endoscopic graft approaches. The study compared outcomes for patients who had endoscopic graft harvesting with those that had open harvesting (where the vein was actually seen "under direct vision." The following surprising results were found:

Results The baseline characteristics were similar between patientswho underwent endoscopic harvesting and those who underwentopen harvesting. Patients who underwent endoscopic harvestinghad higher rates of vein-graft failure at 12 to 18 months thanpatients who underwent open harvesting (46.7% vs. 38.0%, P<0.001).At 3 years, endoscopic harvesting was also associated with higherrates of death, myocardial infarction, or repeat revascularization(20.2% vs. 17.4%; adjusted hazard ratio, 1.22; 95% confidenceinterval [CI], 1.01 to 1.47; P=0.04), death or myocardial infarction(9.3% vs. 7.6%; adjusted hazard ratio, 1.38; 95% CI, 1.07 to1.77; P=0.01), and death (7.4% vs. 5.8%; adjusted hazard ratio,1.52; 95% CI, 1.13 to 2.04; P=0.005).

This study should cause surgeons to reconsider, or at least question, the advisability of always using endoscopic grafting approaches for coronary-artery bypass surgery in every case. Certainly, the risks and benfits should be discussed in detail with patients prior to any surgery, rather than leaving that issue to default. The study points out the need for further trials to evaluate the "safety and effectiveness" the endoscopic grafting techniques.

Once again, we are reminded of the need to question our health care providers in order to maintain, as much as possible, our control over our own bodies and our health. Unfortunately, it also demonstrates the true lack of understanding medicine has of the mechanisms of disease.

Originally posted at InjuryBoard by Mark Williams

Utahn Champions The Demise Of The Feres Doctrine

Bret Hanna — Thu, 25 Jun 2009 11:59:16 GMT

The "Feres Doctrine" was created by a 1950 U.S. Supreme Court decision that, for the most part, precludes U.S. military service members from pursuing damages for injuries or death caused by non-combat related medical negligence. Unfortunately, this doctrine hits too close to home for one Utahn.

Col. Adele Connell, 57, of Stansbury Park, has been an active member of the military for more than 30 years. She is speaking out now because she does not want other service members to go through what she has for the last eight months. Last November, Connell was diagnosed with cancer in her left breast. The treatment plan included removal of both breasts as well as one lymph node suspected to be involved. A surgeon at Walter Reed Army Medical Center did remove a lymph node on the cancerous left breast but although no cancer was found on the healthy right breast, the surgeon went ahead and erroneously removed 17 additional glands. The result is that Connell is afflicted with lymphedema and she has a compromised immune system.

There is a movement afoot to address what many characterize as an injustice against military service members who do not enjoy the same rights to address acts of medical negligence that the general public and even prison inmates enjoy. The U.S. House Judiciary Committee is considering the Carmelo Rodriguez Military Medical Accountability Act named for a 28 year old Marine whose developing skin cancer was repeatedly misdiagnosed as a wart. Sgt. Rodriguez died last year.

If passed in its current form, the bill will be retroactive to 1997 which will potentially benefit another Utah family. Alexis Witt is the widow of Sgt. Dean Witt. In 2003, Sgt. Witt was 25 when he developed severe abdominal pains. He was diagnosed with appendicitis and he had his appendix removed in 2003. He was then left in the care of a student nurse and two hospital interns who failed to recognize signs of trouble. His family claims that when problems were identified, the medical staff used improper breathing equipment to help him breathe and that he ended up in a vegetative state. Sgt. Witt died three months later.

Basic notions of fairness dictate that the Feres Doctrine disappear into the annals of military history.

Originally posted at InjuryBoard by Bret Hanna

Recent Utah Swine Flu Death May Have Been Preventable

Bret Hanna — Wed, 24 Jun 2009 20:34:34 GMT

Francine Rushton, 47, lost her life to the H1N1 swine flu on June 13th, and her death may very well have been preventable. Prior to her death, Rushton had twice visited the Jordan Valley Medical Center and both times she received a rapid diagnostic test to determine if she had swine flu. Both tests came back negative.

The rapid diagnostic tests, however, have a very high false negative result rate. But since she did not test positive, she did not qualify to receive Tamiflu treatment under state and federal guidelines, despite the high false negative rates and even though she had flu like symptoms and she lived with her mother who had tested positive for swine flu.

Rushton's mother tested positive for swine flu on May 30th. Within 24 hours, Rushton was exhibiting the same symptoms so she went for her first test on May 31st. She was not getting better so she returned for her second test three days later. According to Rushton's brother, Craig Whitehead, family members begged for Tamiflu therapy despite the results of the second test because of Rushton's symptoms and because the therapy helped Rushton's mother. Doctors at the hospital refused and sent Rushton on her way.

Another three days passed and Rushton's health continued to decline. She returned to Jordan Valley and although she tested negative a third time for swine flu, doctors admitted her to the hospital. On June 9th, Rushton was transferred to Intermountain Medical Center (IMC) in critical condition. There she was tested for swine flu yet again and this time, the result was positive. But despite the heroic efforts of those at IMC, treatment at that point could not save Rushton.

The rapid flu antigen tests have an accuracy rate of between 50 and 70 percent as opposed to the laboratory completed virus tests. The low accuracy rate is one reason that some suggest doctors should not rely on the antigen tests alone when deciding whether to treat patients as if they have swine flu. Dr. Robert Rolfs, Utah state epidemiologist, has indicated that since the swine flu is now so prevalent in the state, anyone who exhibits flu like symptoms (sore throat, cough, fever), should be presumed to have swine flu until there is concrete evidence to the contrary. Had such a course been followed by doctors treating Francine Rushton, she may very well still be alive.

Originally posted at InjuryBoard by Bret Hanna