Articles Posted in Medical Negligence

It is getting worse.

Healthgrades reports that the number of errors in our nation’s hospitals rose 3% over the years 2002 – 2005.  From the press release:

The HealthGrades study of 40.56 million Medicare hospitalization records over the years 2003 to 2005 … found:
• Patient-safety incidents continue to rise in American hospitals, with 1.16 million preventable
patient-safety incidents occurring over the three years studied among Medicare patients in the
nation’s hospitals, an incidence rate of 2.86 percent.
• 247,662 deaths were potentially preventable over the three years, and Medicare patients who had one or more patient-safety incidents had a one-in-four chance of dying.
• The excess cost to hospitals was $8.6 billion over three years, with some of the most common
incidents proving to be the most costly.
• Ten of the 16 patient-safety incidents tracked worsened from 2003 to 2005, by an average of
almost 12 percent, while seven incidents improved, on average, by six percent. Patient-safety
incidents with the greatest increase in incident rates were post operative sepsis (34.28 percent),
post-operative respiratory failure (18.70 percent) and selected infections due to medical care
(12.23 percent).
• Patient-safety incidents with the highest incidence rates were decubitus ulcer, failure to rescue
and post-operative respiratory failure.

Amercicans for Insurance Reform have released a report that demonstrates that the "insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed."

Rather, this report concludes as follows:

 "Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.

Part of the case evaluation process is a review of appropriate literature.  A literature review is not enough – you still need as expert to testify that the protocols set forth in any given piece of literature represent the standard of care.  But the existence of literature on point can help you persuade experts to testify and, indeed, can even help you identity experts (by contacting the authors).

The American College of Emergency Physicians (ACEC) has issued a list of documents which "describe the College’s policies on the clinical management of presenting symptoms, specific illnesses or injuries."  The ACEC’s Clinical Policies Committee drafts each protocol and and each protocol is approved by the ACEP Board.

Here is the list:

The Kansas Supreme Court has stated that a patient injured as a result of alleged medical negligence can file suit under the state’s consumer protection act.

The patient , Williamson, alleged that the defendant doctor "represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where [defendant] Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced ‘bad results’ for a majority of his patients."

The Court reviewed the Kansas Consumer Protection Act and the law from other states interpreting similar statutes in other cases and ruled that "the language of the KCPA is broad enough to encompass a claim regarding the providing of medical care or treatment services brought by a patient against a physician for a violation under the KCPA."

It takes a tremendous amount of time and money to screen medical malpractice cases.  Our office reviews over 700 cases per year and rejects over 95 percent of them over the phone.  Of the remaining 5 percent most are rejected after review of the medical records and, if appropriate, consultation with one or more medical experts.  In short, we spend a significant sum of money every year trying to take only claims that are valid and have sufficient damages to justify the significant investment of time and money necessary to prosecute one of these cases.

One way to save a little money and time reviewing cases and to help win a case that is actually filed is to use practice guidelines developed by the health care industry.  Practice guidelines are consensus statements of good medical practice.  The phrase "standards of care" immediately jumps to mind when one reads the last sentence – and that is what practice guidelines are.  However, practice guidelines are not called standards of care because the people who write and use them seek plausible deniability if ever confronted with them.

No bother.   You can use practice guidelines to evaluate the care your potential client or client received.  You can use practice guidelines to prepare for depositions of health care providers.  Your expert can point to practice guidelines as evidence of the standards of care, disclaimers notwithstanding.  In short, they are potentially useful in litigation and, more importantly, very helpful in standardizing and improving the quality of care given to patients.

The Tennessee Department of Commerce and Insurance has released the "2006 Tennessee Medical Malpractice Claims Report"" which, in fact, is based on 2005 data.  Read the entire report here.

Some highlights:

*  There were  5 – that’s right – 5 – claims were resolved by judgment for the plaintiff in the entire state.  There were 6 verdicts for the plaintiff in 2004.

The Georgia Supreme Court was confronted with this question:  "In what circumstances, if any, is evidence of a nurse’s failure to pass a licensing  examination admissible in a medical malpractice action against the employing physician?"

Plaintiffs’ son Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia. Plaintiffs claimed that Luke’s pediatrician and his employees should have picked up on the symptoms given the information provided in a series of contacts.   Plaintiffs  introduced expert testimony that the pediatrician, Dr. Basilio, violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician. To support that  testimony, the Sniders showed that Nurse DeVera was not licensed. However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.

The Georgia Supreme Court agreed.  It said as follows:  "Simply put, the issue in this case is not whether Ms. DeVera was generally competent, but whether Dr. Basilio breached the standard of care in hiring her because she was unlicensed. On this issue, the plaintiffs’ experts were able to testify that Dr. Basilio breached the standard of care by hiring an unlicensed nurse and allowing her to answer weekend calls without supervision. The fact that Ms. DeVera was unlicensed was key to resolving this issue. Why she was unlicensed was not."