Articles Posted in Medical Malpractice News

You suffer an injury and need surgery. You have to rely on your surgeon to play it straight with you. Besides a second opinion, never a bad idea, what else can you do? Far down on your list of fears: not getting the surgery the doctor tells you that you are getting.

But, in massive numbers, that seems to have happened in New York. There are currently dozens of new lawsuits, alleging medical malpractice, pending against a New York based orthopedic surgeon, with about another 100 cases being discussed.

Ten of the current lawsuits filed allege that the doctor performed surgery, but intentionally did not treat, or improperly treated, his patients’ injuries. While those complaints stem from a surgery performed, there are yet other complaints that allege a surgery was never performed. In one particular case, a patient went to the surgeon because of shoulder problems. A “shoulder reconstruction” was performed, but when the patient’s pain and problems continued, she sought a second opinion from another doctor. After a battery of x-rays, it was determined that there was no evidence whatsoever that the surgeon performed a shoulder reconstruction, such as screws, anchors, or a fixation device. That patient further claims that the doctor injured her nerves during the surgery, and as a result, she now has permanent hand numbness, and problems grasping things.

The strict locality rule requires doctors to apply the standard of care specific to the community in which the medical care was given. This doctrine began after the Civil War where courts were loathe to apply the same standards to country doctors as they would to urban doctors that have access to the latest information.

Whatever may have justified the strict locality rule a hundred and forty years ago, that justification perished even before Al Gore invented the Internet. No lawyer would argue to a jury that medical standards change based on the community where the medical service is delivered. Still, doctors’ medical malpractice lawyers in Maryland have long claimed that the locality rule is codified by the Maryland Health Care Malpractice Claims Act. Thankfully, this notion was dispelled last month by a Maryland District Court judge.

The National Practitioner Data Bank (for short: NPDB) is an electronic repository containing doctors’ malpractice settlements and judgments that the feds have maintained for 15 years. It also includes adverse peer review actions against licenses, clinical privileges, and professional society memberships of physicians and other health care providers and Medicare and Medicaid exclusion reports of sanctions against doctors for fraudulent billing.

This database – while not as complete as it should be – has been a huge weapon on both sides of the malpractice debate to separate fact from fiction. Federal law dictates that all medical liability payments and certain adverse actions must be reported. The NPDB makes some of this information available to hospitals, state licensure boards, some professional societies, and other health care entities under certain prescribed circumstances.

The public also had access to the database until this month when the government shut down public access to this data. The public never had unfettered access, but the NPDB has long been providing access to its reports with the names of the doctors, patients, and hospitals redacted.

Unless you are in the health care profession or dealing with the health care profession, it is hard to appreciate the deference given to medical records. Doctors believe – correctly in most cases – that looking at a patient’s medical records can tell you exactly what should come next in the care and treatment of that patient.

In spite of this, the Indiana Supreme Court wants to impose liability on doctors and hospitals for losing medical records, rejecting the idea of a medical malpractice claimants’ tort for losing the records themselves.

This opinion was the result of a medical malpractice claim filed by a woman who had complications after her son’s emergency cesarean birth in 1999. The Plaintiff brought a separate damages claim against the hospital for losing the records, which made it difficult to bring a birth injury claim against her obstetrician.

Baltimore Washington Medical Center must pay a fine after giving a patient an improper dose of radiation last year. The Glen Burnie hospital was fined by the Maryland Department of Environment which, surprisingly, enforces radiation management regulations.

BWMC recently reached the $14,000 settlement agreement with the state for the improper dose of radiation. The patient was notified of the error, and officials also told the state about it through the required self-reporting system.

Good for Baltimore Washington Medical Center for confessing to the error. But this fine also underscores how important it is for state regulators to be on top of these types of infractions. No medical malpractice lawyer in Maryland will take the injured victim’s claim: it is just too small. Someone needs to stand up for people who suffered through this type of thing because they represent so many more that we (and maybe even they) never know about.

The number of Pennsylvania malpractice lawsuits dropped for the sixth – please think about that for a second: sixth – consecutive year in 2010. The total number of malpractice lawsuits crashed from 2904 in 2002 to 1,491 last year.

Of the malpractice cases that went to a jury last year in Pennsylvania, doctors, hospitals, and health care providers won 82% of the time (33 of 163).

Hysterically, the tone deaf Hospital & Health System Association of Pennsylvania took the moment to point out that additional reforms are needed. Really? Hire a PR department or something, guys. It is such a credibility killer.

I always like to point out that you don’t see lawyers trying to get lawyer specific dispensation to lower malpractice premiums for lawyers. I don’t like paying malpractice premiums but, unlike many doctors, I’m not suggesting special consideration. I think it is crazy doctors want a special exceptions – lawyers would never ask for such a thing.

Oops. Scratch that. I’ll take that arrow of superiority out of my quiver. A New Jersey State Bar is pushing its state legislature to reduce the statute of limitations in malpractice actions against licensed professionals, which includes, of course, lawyers.

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.

DEA agents tell a Maryland doctor he can no longer prescribe medication. As they are leaving he shouts:

Your mothers wanted you to become physicians and because you didn’t, they are mad at you. So you are mad at physicians and are arresting all physicians in the area.

Later, things get weird and the doctor’s wife puts him in a full Nelson.

Premises liability claims make up 8% of nursing home cases. So while these claims are “nursing home cases” in one sense, they are really premises liability cases in nursing homes. This may come with nursing home specific fact patterns, but they are still premises liability claims.

You can get an overview of premises liability claims on our website.