Articles Posted in Hospital Malpractice

Amazing story here from Argentina.

After prematurely giving birth, the parents of a newborn baby, deemed stillborn, found the baby still breathing in the morgue after twelve hours. Shocked, I’m sure, to say the least.

The infant was taken directly to the morgue, after apparently being declared dead. When the parents went to the morgue to say good-bye, they opened the casket (already nailed shut), and uncovered the baby’s face. The baby let out a cry. Can you imagine?

One obvious malpractice claim in some hospital cases is negligent credentialing. These claims typically allege the hospital should have suspended or revoked the doctor’s privileges or should have monitored and supervised the doctor more closely. This is also known by its legal term, “Why did you let this idiot in your hospital, anyway?”

Maryland law arguably gives hospitals some leverage to fight these claims with its medical review committee privilege. Maryland’s statute, enacted in 1976, provides that “proceedings, records, and files of a medical review committee are not discoverable and are not admissible into evidence in any civil action arising out of matters that are being reviewed and evaluated by the medical review committee” in any civil action.


The hospital uses this privilege as a sword, claiming that it can’t defend itself because it cannot use this evidence at trial. But almost every state has a medical review committee privilege and, still most states allow for negligent credentialing claims. Ultimately, it is a false argument because the vast majority of negligent credentialing cases, the issue is “what did they know and when did they know it?” So the parties are on a level playing field in a medical malpractice lawsuit: the privilege prevents the introduction of what the peer review committee saw but the information that was presented – assuming it was available elsewhere which it must have been if it is at issue, is fair game. What the peer review committee thought does not really matter either way. In other words, if the jury question was whether the batter was safe or out and you have video, it does not matter what the umpire’s call on the field was at the time.

Tragic story here about a lieutenant from a Sheriff’s Department who was severely incapacitated after he underwent bariatric surgery in 2007. The details of his care and treatment are appalling.

After being told that a weight-loss surgery would be “less risky” than continuing to live in his physical state (he was 6’1″ and 375 lbs), a once active and contributing member of society now remains confined to a wheelchair, brain damaged and blind, but completely aware of what he once was and what he is now.

How could this happen you might ask? Well, when your surgeon is unaccredited and has performed less than half of the required number of surgeries to become accredited, you find yourself with a major case of malpractice. Furthermore, the surgeon was required to have at least twenty hours of bariatric education courses, yet he had only taken one.

One frequent emergency room complaint is abdominal pain of unknown origin. The challenge for the ER doctor is to diagnose the source of the problem, or at least narrow the problem, and rule out life threatening aliments. Three big potentials for problems are appendicitis, volvulus, and ruptured abdominal aortic aneurysm and intussusception – all can lead to misdiagnosis and wrongful death malpractice lawsuits. Today, we will look at appendicitis misdiagnosis claims.

Failure to diagnose an appendicitis is a common failure. It is critical to immediately remove an inflamed appendix before it ruptures. If a patient walks in with an inflamed appendix and walks out before getting the proper treatment – usually removal – they are put at risk of death. Particularly at risk for an appendicitis and a missed diagnosis is our youngest and oldest. The classical appendicitis presentation includes patients with low grade fevers with crampy, intermittent abdominal pain that gets worse with movement that migrates to the right lower quadrant of the stomach within 12–24 hours of the onset of symptoms.

Some emergency room doctors miss even the obvious diagnosis in patients most at risk. There are medical malpractice cases where the patient could just have well come in the emergency room with an “I have an inflamed appendix” shirt and the ER doctor still blows it. But the standard of care also requires ER doctors to catch more than just the fly balls. For moderate risk patients that have some, but not all of the classic appendicitis symptoms, doctors really do need to order more follow-up diagnostic testing. Call it defensive medicine, call it whatever you want, but if it looks like it could be an appendix problem, it’s worth getting a CT scan.

Do electronic records decrease malpractice?

Electronic medical records are all the rage. The potential benefits are not hard to see. Doctors can access a patient’s entire medical history from one chart. Allergic reaction to penacilin in 2003? Got it. Equally helpful, the system has built-in alerts of the potential dangers of drugs interactions.

It is a bipartisan idea in Washington, D.C., a town where bipartisan ideas are as common as Indianapolis Colts wins without Peyton Manning. President George Bush first championed Health Information Technology as a national priority for the U.S. in 2004. President Obama then threw $36 billion in stimulus money from the American Recovery and Reinvestment Act (ARRA) – earmarked to facilitate implementation of electronic health records (EHRs) – just what the doctor ordered to speed things up. Since then, the EHR implementation machine has churned away in an effort to improve efficiency in patient care. By broadening access to patient information, creating a consistent system for reminders and alerts, offering important safety features such as clinical decision-making support, and automating prescription filling and re-filling, EHRs have the potential to change the landscape of medicine in the U.S. and across the world.

Most hospitals have three categories of doctors practicing medicine in their hospital: (1) a doctor who has privileges at that hospital; (2) salaried employees and (3) independent contractors. In emergency rooms in Maryland, most of the doctors that are providing treatment are independent contractors.

Of course, patients don’t know this. In fact, if you polled members of the Maryland State Bar Association, I think you would find the average Maryland lawyer does not know this either. So the question is can the hospital hide behind its independent contractor relationship with the ER group? The question hinges on whether malpractice lawyers can hold hospitals vicariously liable for its contractors’ negligence under the theory of ostensible/apparent agency. Certainly, hospitals argue for the application of the rule that it should be absolved of liability because the ER doctors are independent contractors over who it has no control.

Maryland follows the apparent agent theory set forth in the Second Restatement of Agency. Section 267 says that:

Medical malpractice is largely a zero sum game. If it helps the defendant’s lawyer, it helps the plaintiff’s lawyer. We all pretend from time to time this is not so. But it is almost invariably true.

The question of whether to name doctors in a hospital malpractice case is one of those situations where it is best for everyone to keep the doctors out of the lawsuit. (Sure, maybe the public censure of a doctor through a civil lawsuit has value. But, ultimately, our job is to do right by our clients by maximizing the value of their malpractice case.) Plaintiffs’ lawyers prefer to name a hospital which is far less sympathetic than an individual doctor. It gives juries the opportunity to award fair damages without the pain of directly blaming a specific doctor (even in cases where obviously it was a single doctor’s fault). The doctor’s lawyer – even if the lawyer also represents the hospital – gets that a doctor does not want to have her name in the lawsuit.

Everyone’s happy. One problem: the general release of a doctor operates as a matter of law to release defendant from liability. And you don’t want to use the procedural leverage you have with defendant doctor in terms of reading deposition testimony at trial, etc.

This is not a space to praise the virtues of malpractice insurance companies. But let’s give credit to Crico/RMF a malpractice insurance company which insures Harvard-affiliated hospitals. Crico/RMF, according to the Wall Street Journal, put on an emergency medicine leadership summit to identify the critical factors that cause missed or delayed diagnoses of patients in the emergency room.

How did they do this? They looked at settled malpractice lawsuits and tried to breakdown what went wrong. They found that doctor-nurse communication breakdowns often happen at a critical juncture in a patient’s treatment. From this, they put together a list of best practices that hospitals can use to prevent misdiagnosis.


One problem focused on at this ER summit was the concept that doctors have a hard time changing their initial diagnosis when facts are uncovered that should take the doctors in a different direction. Doctors are stubborn to change their diagnosis. But it is not just doctors. It is a cognitive bias we all have. (I’ve written before about how before lawyers use anchoring at trial.) But the key for doctors is identifying the bias so they can confront it before it leads to the wrong diagnosis.

I’m reading a book called Why We Make Mistakes by Joseph T. Hallinan. The premise of the book is that we, as a species, have shortcomings that make us prone to mistakes. It is a pretty decent book.

In a footnote on page 193, Hallinan makes reference to a study that was done that asked pilots the question: “Even when fatigued, I perform effectively during critical [times].” Only 26% of pilots agreed with that statement. Yet 70 percent of surgeons agreed with that statement.

People wrestle hard with the question of whether to contact a malpractice lawyer about their potential claim? They might like their doctor, fear retribution… there are a whole host of considerations people undertake.

You would expect the malpractice lawyer’s answer to be pick up the phone and find out if you have a malpractice case. But we get that it is not that easy. Nor should it be. A lot of very reasonable people have viable malpractice claims that they choose not to bring. This is not necessarily a bad choice. It is a deeply personal choice.

CNN provides today some balanced insight on the decision of whether to file a malpractice lawsuit.