Medical Malpractice News and Views

Welcome to our blog where we discuss current issues in medicine and law. We welcome your comments.

Beware Lasik!

June 20, 2018

If you have been following our blog for any period of time, you know that one of the things we often discuss is the fact that medicine is a business and the patients are its customers.  Like almost all other businesses, the sellers are looking to make a profit and to do so will sometimes exaggerate their products strengths and downplay its weaknesses.  Lasik surgery is a prime example.

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The New York Times had a recent story about lasik surgery and its risks.  It is worth your time to read it.

Lasik surgery is one of the most popular of the elective surgeries.  It is used to correct vision in otherwise healthy eyes.  Importantly, there is nothing wrong with the eyes of people who undergo lasik surgery that a good pair of glasses cannot fix.  In this way, lasik surgery is unlike surgery we undergo to fix a broken body part.  For that reason, the risks should be few and small before the FDA approves the procedure.  According to the Times story, that has regrettably not been the case.

Many doctors who do lasik surgery make a lot of money doing it.  My partner had lasik surgery and swears by it.  So do many others.  There are, however, a lot of lasik patients who have problems following lasik.  If you have lasik, you will sign an informed consent document attesting to the fact that you have been advised that lasik can cause problems and that you agree to accept the risk of those problems.  It is the contention of the activists quoted by the Times that problems are far more common that the lasik industry admits, are often more severe than disclosed, and last far longer than most people realize.

Posted in Fraud, General Health, lasik, medical research |

Pay More, Get Less

June 11, 2018

The United States spends more per person on health care than any other developed country.  At the same time, our life expectancy is less than that in other developed countries.  What is going on?

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Let’s start with the cost of health care.  According to this story from the New York Times, our cost of health care was not much different from the rest of the developed countries until about 1980.  From that point, our costs began to go up compared to the others.  Some of the factors which played a part are the role of government in controlling costs.  Other countries rely more on governmental policies to control health care costs while we rely more on market forces.  Normally, the market works well to keep costs down through competition.  But markets have to be free and open to get the maximum advantage.  Because of consolidation reducing the number of providers of care, secrecy about costs, political interference in the market and arms races among hospitals, the market in the United States does not function well in keeping costs down.  We also have a lot of inefficiencies in the system which increase costs.  For example, different insurers may require different submissions to justify payment.  Drug companies use patent protections to keep prices up and sometimes conspire to keep generics from the market after their patents expire.  Middlemen, called Pharmacy Benefit Mangers, play a role in the supply process and take a cut of each transaction.

On the issue of life expectancy, we can see that there is no clear relation between health care spending and overall health or life expectancy.  It starts at the beginning:  We rank 29th in the world in infant mortality.  That is just stupid.  In the Scandinavian countries, the rate of infant mortality is half of ours.  Almost all of the Western European countries have a longer life expectancy than do we.  Eighteen countries have a life expectancy at least three years longer than that of the average American.

Of course, very few of us are “average Americans.”  We differ greatly in many ways, one of the most important of which is income.  Being poor is hazardous to your health.  The difference in life expectancy has been described as “staggering.”  The highest earning men live on average 15 years longer than the lowest earning men.  For women the difference, 10 years, is still large but not quite as pronounced as for men.  Geographically, the lowest life expectancies are in the Midwest Rust Belt.  The best advice for living long is to move to San Francisco and make a billion dollars in tech.  If that is too far out, try moving to New York and becoming and investment banker.

Seriously, good exercise and diet habits contribute greatly to longer life expectancy.  Try also to be an informed consumer of medical care so you don’t get more than you need and you pay fairly for what you do need.

Posted in drug companies, General Health, health, Health Care Costs, Health Insurers, healthy living, Hospitals, Medicare, Obesity, obesity epidemic |

What Makes a Medical Malpractice Case “a Case?” – Part 2

June 04, 2018

So, you think you might have a medical malpractice claim.  About 8-10 folks contact our firm each day wondering if they have been harmed by the negligence of a health care provider.  Because we only take about 1 out of every 250 cases, we need to be able to quickly and efficiently assess when a claim might actually be a viable malpractice case.  How do we do that?

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The first thing to keep in mind is that the litigation of medical negligence claims takes place in an alternate reality.  Most of the potential claims I look at involve malpractice.  Plain old common sense tell us something bad happened which should have been avoided or prevented.  Proving a medical negligence claim in court, however, involves more than a common sense understanding that negligence occurred.

The negligence needs to be exceedingly clear and easily understood by an unsophisticated juror.  Complicating factors like other significant health conditions, age, timing, multiple negligent health care providers, and plausible alternative explanations for the cause of an injury can quickly muddy the waters.   The defense uses the antiseptic and controlled environment of litigation and the courtroom to highlight these complicating factors in order to distract jurors from the truth and cast doubt in their minds on issues which might otherwise seem obvious.  And, they do it well.  Irrelevant issues are a defense lawyers best friend.

An injured person also must establish medical negligence by a preponderance of the evidence (the burden of proof), meaning there is a 51% chance that a health care provider was negligent.  It may seem like a low bar, but juries almost always hold plaintiffs to a higher standard.  Arizona juries will generally look to give a health care provider every benefit of the doubt, meaning that they need to be 100% sure that negligence occurred.  That’s why defendants win at trial more than 85% of the time and those loses often involve what I consider to be good cases being tried by good lawyers.  Because any lack of clarity will make it difficult for a person harmed by medical negligence to meet their burden of proof, the case for negligence needs to be nearly indefensible to obtain a favorable jury verdict.  Jurors essentially need to be rolling their eyes at defense arguments, and even then that might not be enough.

Lawyers must also carefully assess the amount of harm that someone has suffered.  The injury needs to be significant because litigating medical malpractice cases is risky and expensive.  The harm needs to justify the costs of bringing a case from the investigative stage to trial which can be over $100,000 before considering for attorney’s fees.  Generally this means someone must have died or suffered a permanent and debilitating injury.  If an injury occurs, but the victim gets all or mostly better, there probably is not a viable claim to be made, even if the negligence is clear.  If a death is involved, there needs to be a sufficient number of survivors qualified to bring a claim.  The loss of an adult child by an elderly parent or the loss of an elderly parent by an adult child are probably not going to be sufficient to justify a medical malpractice claim given how Arizona juries value those injuries.

The answers to questions of viability are not always clear.  If it seems possible that the negligence may be strong and the damages are sufficient on an initial case review, then the time and expense of additional investigation is usually warranted.  This includes obtaining and reviewing medical records and consulting with experts.  Getting to this point efficiently, however, requires a lot of experience and a lot of patience.

It also requires deep compassion for folks who just want to know what happened to them or a loved one.

Posted in Uncategorized |

Third World Medicine

May 29, 2018

“Third world medicine” is how a local doctor described to me the quality of the care he is routinely seeing delivered at urgent care centers in the Phoenix area.  In his practice, he is often asked to review patient charts from urgent care centers.  He says most of the care he is asked to review is being delivered by physician’s assistants, who are theoretically operating under the supervision of a licensed physician.  In practice, however, he says that the doctors are not adequately supervising the assistants and the care being delivered is nothing less than malpractice.

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He was also critical of the conduct of some of his fellow surgeons who are being paid on a fee for service basis and who are recommending surgery to patients which this doctor believes is either too risky for the patient or is not appropriate for the patient’s situation.  He attributed the willingness of these surgeons to recommend risky and inappropriate surgery to their desire for the income such surgeries produce.

Risky surgery, unnecessary surgery, third world care, money-hungry doctors – these are problems that have been ignored or swept under the rug by the medical profession for years and their root cause is greed.  I was frankly surprised to hear a doctor remark upon them.  No one else seems to care.

Posted in Arizona Medical Board, Doctors, Fee for Service, Fraud, Medical Costs, medical ethics, Medical Malpractice, never events, Secrecy |

What Makes a Medical Malpractice Case “a Case?” – Part 1

May 28, 2018

Many of our medical malpractice clients come from referrals made to us by other lawyers and law firms.  I am grateful for the trust and confidence these lawyers have in our ability to evaluate a situation, identify a claim and litigate it to a successful conclusion.  Most folks, however, are surprised to learn that we look at about 8-10  potential cases each day and are only able to take about 1 out of every 250.  That does not mean there was no medical malpractice in the other 249.  Quite the contrary.  Unfortunately, most of the time the malpractice is there, but something else is missing.   So, what makes a case a case and how do we go about figuring that out?

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Today, a very good personal injury lawyer who regularly refers us potential clients asked me that very question.  He was wondering what we look for and how we can tell when a claim is not likely to be successful. He wanted to know how he could identify a case that was worth investigating further earlier in the process so he wouldn’t bother us with frivolous referrals.  That’s no easy task.  The image above should really read “How Good Lawyers Evaluate Medical Malpractice Cases.”

First, I told him there is no such thing as a frivolous referral.  One of the most important parts of my job is telling a prospective client, with a very high degree of confidence, that they do not have a viable medical malpractice claim.  I suspect that 50% of the folks who come to me want to hear that.  They don’t want to sue their doctors and they don’t want to to think a bad outcome happened which could have been prevented because someone screwed up.  They often come to me because don’t want to be left wondering whether they should have done something after the statute of limitations has run and its too late.

Unfortunately, all too often I meet with folks who have already spoken with a reputable lawyer who says they have a great case, but the lawyer is too busy to handle it.  That is just bald lie which causes folks more harm than they have already suffered.   It is not helpful or polite.  If a lawyer is meeting with a potential client, that lawyer has time to take a good case.  Lawyers do not turn down good cases – period.  “Too busy” = bad case = a lawyer too afraid to tell a potential client the truth.  A prospective client has a right to the unvarnished truth, even during a free consultation.  If you can’t tell, this all too common practice is more than a pet peeve of mine.

Second,  I told him the ability to efficiently and correctly evaluate a medical malpractice case only comes with experience.  Each case is unique and many variables must come into alignment for one to be viable.  In my view, only someone with many years of experience litigating medical negligence claims can understand why a case is likely or not likely to be successful in the early stages of investigation.  It is not something that can be taught or explained in an hour to two.

Prospective clients often come to me with a story of how an experienced personal injury lawyer, often one I respect, spent many months and thousands of dollars investigating a case, only to decide it was not something they were willing to pursue.  Many times I am able to conclude the same case is not worth pursuing right away simply based on what the prospective client has to say.  A lawyer’s inexperience in medical malpractice case evaluation often leads to an unnecessary waste of time and money for the lawyer and a source of needless anxiety for the prospective client.

Early and accurate medical malpractice case evaluation is simply not so simple.  Like a former partner of mine used to say, “If it were easy, everyone would do it.”  Unfortunately, many lawyers do not know enough to know when they don’t know enough.

In my next blog, I’ll explain the process we go through in the early evaluation of a case and try to provide a few examples of what we look for – what makes a case a case.

Posted in Uncategorized |

Walkers Watch Out!

May 21, 2018

If you follow this blog, you know that it is largely devoted to discussing health issues in the context of medical malpractice claims, which is a significant part of our law practice.  However, we also help the victims of other more pedestrian types of negligence as well.

For example, I just settled a case for an older gentleman who was hit by a car while walking to a restaurant in a parking lot.  He was badly injured as you might expect when someone does battles with a giant moving piece of metal.  Fortunately, the money we were able to obtain for him and his family will ensure that he makes the best recovery possible.  More importantly, it will help provide all of the help he needs managing the permanent disabilities he suffered as a result of the accident.

So, it was with some interest that I recently read and article discussing statistics related to pedestrian fatalities resulting from motor vehicle deaths in the United States.  Since 2009, pedestrian deaths have increased 46%, with nearly 6000 killed in 2016 alone.  The number of pedestrian deaths as percentage of all motor vehicle deaths also increased from 11% to 16% during the same time.  Why?

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Well, no one knows for sure, but the Institute for Highway Safety thinks the increased popularity of the already ubiquitous SUV may play a large role.  While there is not direct evidence of a correlation between the number of SUVs on the road and increased pedestrian deaths, the cause of motor vehicle-related pedestrian fatalities has not changed much over the last few years.  Darkness, alcohol, and the failure of walkers to use an intersection are all culprits.  Therefore, it makes some sense that higher profile vehicles, which are likely to cause more harm to a pedestrian than a car, might be to blame.  And, with recent reports of the demise of the sedan, things might worse before they get better.

Of course, cell phone use by drivers and pedestrians, the movement to walk more and drive less, and other factors probably play some role.  Distracted walking might appear to be just as big a problem as distracted driving, at least of you are paying attention.

The statistics should be especially disturbing for walkers in Arizona, which, among its other dubious distinctions, saw the highest rate of pedestrian deaths in the country, and the 5th highest total overall, despite having a relatively small population.  Watch out!  The good news is that our communities recognize the problem and are making progress to make pedestrian travel safer by improving walking-related infrastructure.

Whether its big vehicles, distractions, or a lack of pedestrian-friendly corridors that are harming those who travel on foot, the lesson is clear.  Walking is getting more dangerous and like most things in life, the best defense is a good offense.  At least for now.  Stay alert and stay safe!


Posted in Uncategorized |

Palliative Care Good for Everyone

May 14, 2018

When facing a serious or complex illness, patients and their loved ones want to know they are getting the best care possible.   They want a plan that is geared to achieve their treatment goals, whatever they may be, and one that will maximize their comfort while those goals are pursued.  Developing such a plan can be challenging in any environment, but it is especially so where multiple health care providers are involved in making treatment decisions for a variety of different and sometimes competing problems.  Communication between providers can sometimes be spotty, or worse, and patients can be left out of the treatment decision-making process entirely.   This can have a substantial negative impact on a patient’s quality of life and that’s not good for anyone.

However a recent study published in the Journal of the American Medical Association Internal Medicine revealed that early palliative care consultations, addressed this issue and greatly improved patient outcomes.  Not only that, it reduced costs associated with hospital stays by over $3,000.  Palliative care is an interdisciplinary approach to pain and symptom management which brings the patient and his health care providers into the treatment decision-making process together.

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While it makes sense that an additional layer of care might benefit seriously ill patients, is seems counter intuitive that  it would also reduce costs.  It’s a true win-win.  The study adds to a growing body of research demonstrating the substantial benefits palliative care provides for patients and the health care system.

While the study does not specifically identify why palliative care works in the ways it does, the findings are consistent with experiences in health care institutions elsewhere around the world.  Countries such as New Zealand and Australia have successfully integrated palliative care strategies into their treatment programs.  In the U.S. as well, there is a growing awareness that palliative care is good for patients and good for those who pay for their care.  So now we are beginning to see a change in the way health care is delivered to seriously ill patients.  But it’s just a start.  Continuing  to expand the scope of the early palliative care paradigm will require more research and education, as well as incentives for health care providers to develop and implement palliative care protocols in their practices.  Hopefully, the inertia will continue building so we can maximize good outcomes – good form the patient’s perspective

Posted in Uncategorized |

Health and Wealth Go Hand in Glove

May 07, 2018

Numerous medical studies link all sorts of things to good health.  Lots of exercise.  Fresh air.  Health insurance and access to health care.  A good diet.  Ample rest.  Low stress.  Happiness.  Family support.  The list goes on and on and it makes perfect sense.  Surely, it would come as a pretty big surprise if a study found watching cute kitten videos while eating fruit after a 10 mile bike ride in the desert was potentially lethal (at least during the winter months in Arizona).  Now, what’s the one thing all of these factors associated with good health have in common?  Generally, they are a lot easier to achieve if you are not economically disadvantaged.

Unfortunately, a health lifestyle and good health come at a price.  For many a significant price relative to income.   It takes money to eat good food.  It takes money to have enough time to rest and exercise.  It takes money to support a  family.   And, while money can’t buy happiness (at least after  you earn $75,000 a year) it can go a long way toward making a healthy lifestyle and a healthy life possible.  Of course, earning that kind of money generally requires a good education which, again, depends on many factors related to wealth.

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It’s no wonder then a recent study by the Arizona Partnership for Healthy Communities found a direct correlation between health and zip codes.  It demonstrates that wealthier zip codes have healthier residents.  Significantly healthier.  According to the study, life expectancy in the Phoenix metro area varies by as much as 14 years between some zip codes.  Not surprisingly, in this regard, folks in North Scottsdale appear to be very well off…ahem… I mean healthy.

It may sound snarky, but “Duh!”  We need to better recognize the correlation between social and economic advantage and a healthy population.  It’s a synergy that benefits any community.

Perhaps the biggest barrier to good health for many is the cost of medical care and it’s getting less and less affordable.  As a percentage of GDP, health care costs have nearly doubled since 1980.  In view of these exploding costs, we need to do more to give everyone a chance at a healthy lifestyle and good health.  Not everyone will take advantage of such opportunity, but everyone deserves a chance and the better health of those that do will benefit everyone in meaningful and measurable ways.


Posted in General Health, Uncategorized |

Medical Errors: A Leading Cause of Death in the U.S.

April 30, 2018

We like to tell ourselves that we value life.  When a tragedy occurs, we often search for solutions to try and prevent it from occurring again.  Highway safety is a good example.  Around 40,000 people die in highway accidents each year.  We rightly concluded that we must take action.  We legislated safety features for cars to reduce the chance that someone will die in a car accident.  Cars are so much safer today that the number of auto deaths last year was almost the same as in 1950, even though our population is more than double what it was in 1950.  Sadly, our response to deaths caused by medical malpractice is feeble by comparison.  Frankly, it is feeble whether in comparison or not.

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Heart disease and cancer are the two leading causes of death in the United States.  We have national campaigns to reduce these deaths.  We spend billions on medical research and public education to address heart disease and cancer.  In third place is death due to medical error.  Think of that.  Fully one-third of all the people who die in the United States die because of a medical error.  Why isn’t the public up in arms?  Why are we not addressing this?  The answer is that the medical profession is not eager to let the public know about the number of medical errors and the deaths they cause.

As the article to which I linked states, there is no general agreement on the number of deaths due to medical error.  A study by Johns Hopkins puts the number of annual deaths at approximately 250,000.  Other reports put the number as high as 440,000.  Either number is a scandal which calls out to be addressed.

Neither hospitals nor doctors are required to report when a patient has died due to a medical error.  Members of the medical profession decide on the cause of death which appears on the death certificate.  Members of the medical profession tell the family of the patient what happened.  It is not in the professional or financial interest of doctors or hospitals to admit when mistakes have been made.  On the contrary, it is much better just to sweep the death under the rug and attribute it to something other than a mistake.  The medical profession is not going to admit its mistakes until forced to do so.

So why do our elected representatives allow them to get away with keeping these secrets?  As usual, it’s the money, stupid.  The medical profession has deep pockets and many lobbyists.  It is unlikely that politicians for whom campaign donations are life’s blood are going to offend the medical profession by requiring it to admit its mistakes.  Rather than forcing the medical profession to admit its mistakes, politicians are anxious to make it harder to find out about mistakes and harder still to get justice when a patient or the patient’s family discover medical malpractice.  Just take a look at the Republican malpractice bill that passed this Congress last year.

It is up to us to ask questions and be informed consumers of medical care.  That is a tall order because doctors and hospitals hide behind walls of secrecy and medical mumbo-jumbo.  We also have to push our elected officials to act to reduce the toll of medical errors and the best first step is to require honest reporting of medical errors, when they occur.

Most doctors and hospitals are trying to do the right thing.  Notwithstanding that, medical errors will occur.  We have to get them out in the open and learn from them.  Medical errors swept under the rug are guaranteed to happen again and again.


Posted in Autopsy, Cancer, disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, Secrecy, Surgical Errors, tort reform |

It Shouldn’t Be A Whisper.

April 23, 2018

When a patient in a hospital has been the victim of medical malpractice, many people often know about it.  The one person who is usually not in on the secret is the patient who has been injured.  Sometimes the medical personnel, often a nurse or other non-physician, is so upset by the mistake and the cover up that they go to the patient or the patient’s family and quietly tell them about the malpractice or suggest that they see a lawyer.  It shouldn’t be this way.

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Common sense tells us that mistakes should be admitted and corrected.  Medical research has confirmed our common sense over and over again.  When mistakes are admitted, they can be corrected and people can learn from them.  When mistakes are hidden in a shroud of secrecy, or even worse behind a wall of lies and falsified medical records, justice is not done, no one learns from the mistake and the mistake is likely to happen again.

Of course, it is human nature not to want to admit that we made a mistake.  For doctors, many of whom are somewhat insecure in the first place, to admit a medical mistake is to threaten the very core of their competence.  It just can’t be done.  There are other reasons doctors and hospitals want to keep medical malpractice secret and many of them come down to our old friend: money.

A doctor or hospital who admits a mistake may face a claim arising out of that mistake.  They may find themselves involved in a lawsuit in which their conduct is a mater of public record.  They may have to pay money to resolve the claim.  They may be reported to the Arizona Medical Board or to some other regulatory agency.  Their malpractice insurance rates may go up.  The best course, as far as they are concerned, is just to deny, deny, deny.

From the time physicians first began to think about medical ethics, a cardinal principle has been to do no harm.  Hiding mistakes by either ignoring them, covering them up, or just plain lying about them harms patients.  It may or may not harm the patient who has been the victim of the malpractice.  It may be too late to fix the problem but it may not.  If the mistake is not acknowledged, the doctors and nurses treating the patient may go off on a wild goose chase, misled by the effects of the mistake.  Future patients are almost certain to be harmed by hidden mistakes because new procedures or training were not put in place to prevent the mistake from happening again.  Hidden mistakes also undermine the public’s trust and confidence in medicine and those who practice it.  If you can’t trust your doctor not to lie to you, whom can you trust?

Medical mistakes should not be the subject of a quiet whisper in the elevator, they should be shouted out, confronted and prevented.

Posted in Arizona Medical Board, Defensive Medicine, disclosure of medical mistakes, Doctors, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, Secrecy |