Medical Malpractice News and Views

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

MRI With Contrast? Not So Fast.

October 16, 2017

Magnetic Resonance Imaging (MRI) is a wonderful tool for seeing what is going on inside the body.  Unlike CT scans, which use x-rays, MRI’s use magnetic fields and radio wave pulses to image the organs, joints, muscles, bones and soft tissues of the body.  About half of all MRI’s use a contrast material which contains gadolinium, a rare earth metal.  Many radiologists believe that MRI’s with gadolinium contrast allow them to see tumors, blood vessels and inflammation that would not be as clearly visible in the absence of contrast.

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Evidence has been mounting that some people have permanent problems as the result of the injection of this metal-based dye into their bodies.  Doctors recognize that the kidneys will be called upon to excrete the gadolinium and have cautioned against its use in patients with damaged or fragile kidneys.  In those patients it causes scarring of the kidneys and further reduces their function.  However, even some patients with perfectly healthy kidneys have reported suffering kidney damage due to the presence of the metal in their bodies.  Many of these people have been urging that patients be given specific warnings about these potential effects of gadolinium contrast and an opportunity to refuse them, if they are concerned about the extra risk.

Research on the subject has also identified a syndrome which is believed to result from the use of gadolinium.  The syndrome is called Gadolinium Deposition Disease (GDD).  It is believed to be an immune system response and can cause skin conditions, bone pain and brain or chemo “fog.”  Caucasian women of European descent are believed to be at highest risk for this response, which shows up within days of the administration of the contrast.

Earlier this month an FDA advisory committee voted almost unanimously to urge the agency to put additional warnings on the label cautioning that gadolinium may end up deposited in the brain and kidneys.  The committee also urged that more research be done into the problems presented by gadolinium contrasts.  Patient activists do not believe these recommendations go far enough as patients never see the label warnings, which are directed only to physicians.

As a careful patient, if you are going to have an MRI, have a conversation with the radiologist about whether contrast will be used and the risks and benefits of gadolinium contrast.  Don’t let the radiologist tell you that there is no risk, because there is.  That there is risk does not mean you should not get the contrast.  It only means that you should be able to have a frank talk with the radiologist about what benefits he or she expects from the use of contrast and whether the study can be as helpful or almost as helpful without the use of gadolinium contrast.

Posted in Defensive Medicine, Doctors, Informed Consent, science news |

Kudos Time Again.

October 09, 2017

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Every day I receive calls from patients who believe they have been the victims of malpractice and who would like me to bring a case on their behalf.  Many times I agree that they have been the victim of malpractice but am not able to take the case for reasons I have discussed in prior blog posts.  Sometimes I accept the representation and bring suit because the patient has gotten poor care and was injured by it.  I see a lot of medical malpractice.  Because of my work, I often write about malpractice issues and structural problems in the business of medicine.  It is important, however, for me and for all of us to keep in mind the many dedicated medical professionals who try every day to keep us safe and well.  Their readiness to help, their professionalism and their excellent training were on vivid display in response to the tragic events of Sunday evening in Las Vegas.

Las Vegas is not a large city.  It has only one Level I Trauma Center.  In fact that trauma center is the only Level I Trauma Center in the entire state of Nevada.  Arizona by contrast has 12 Level I Trauma Centers.  On Sunday night, Las Vegas was faced with a veritable tsunami of critically injured patients.  Over 500 patients needed care Sunday night, many of them in critical condition with ghastly wounds and in need of emergency surgery to save their lives.  Any city would be hard pressed to deal with such a crisis.  For a city its size and with its resources, it did an unbelievable job in saving lives and treating the injured.  To do the job it did required dedicated, well-trained personnel ready to respond at a moment’s notice and extensive advance planning by the health care community on how to respond to a mass disaster.  Without that planning and those dedicated medical professionals, a catastrophic situation would have been orders of magnitude worse.

For all its faults, and there are many, our medical system is made up of many caring professionals who stand ready to help us when we need them.  This is one of those times for us to especially recognize them and the entire health care community and say, “Thank you.” for a job well-done, for the many lives saved, for the many wounded who were healed and for the care and compassion with which you acted.

Posted in Doctors, Hospitals, Medical Malpractice, Medical Negligence, Nurses |

More On The House Malpractice Bill

October 01, 2017

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House Bill 1215 places the thumb of Congress squarely on one side of the scales of justice and, unsurprisingly, it is not the side of the patient.  Last week I wrote about the caps on damages found in the medical malpractice bill recently passed by the House of Representatives.  Caps were not the only things the bill did to make it harder for people injured by medical malpractice to be fairly compensated for their injuries.  The bill also injected itself into the attorney-client relationship.

It goes without saying that no victim of medical malpractice can take on the medical profession and navigate the court system alone.  The malpractice victim needs a lawyer’s help and not just any lawyer will do.  In addition to being a good trial lawyer, the successful malpractice lawyer needs to know medicine, medical terms, anatomy and how the doctor/hospital system works in order to adequately represent injured patients.  There are not many attorneys in Arizona or elsewhere who meet all of those criteria.

Medical malpractice cases are expensive.   Every case requires expert witnesses to testify on standard of care, causation and damages.  It is unusual to find an Arizona doctor who is willing to testify against an Arizona colleague.  This means that the patient’s attorney has to look out of state.  This usually means travel expenses to go to the experts or to bring the experts to Arizona for trial.  It is not unusual for an attorney representing a patient to write checks to expert witnesses or for related discovery expenses and travel in an amount well over $75,000.00.

The cases also require a great deal of legal time due to their complexity.  The typical fee is contingent, which means that the attorney does not get paid unless he or she makes a recovery for the client.  The attorney also does not get back the money spent on experts and discovery expenses unless he or she makes a recovery for the client.  The typical contingent fee in medical malpractice cases is 40%, a percentage which reflects the necessary additional expertise and the risk of not getting a recovery.  Here is where the House bill has injected itself.

In a section of the bill the authors ironically describe as “maximizing patient recovery,” they limit the amount a patient can pay his or her attorney by way of a contingent fee.  The successful lawyer can recover 40% only on the first $50,000 recovered for the client.  The percentages go down from there to only 15% of any amount in excess of $600,000.  For a recovery of $1,000,000, the attorney’s fee would be capped at a little over 20% of the total recovery.  Far from intending to maximize patient recovery, the authors intend to make it more difficult for a patient to find a lawyer to take his or her case.  Many injured patients who were not forced out of the system by having their non-economic damages capped, will be forced out because their total recovery will not be enough to pay for the time a skilled malpractice attorney will have to spend on their case.

Of course, nothing in the bill limits the amount doctors, hospitals and malpractice insurance companies can pay the attorneys they hire to prevent injured patients from making a recovery and nothing limits the amounts doctors and hospitals can charge their patients for medical treatment.  We have to respect the free market, after all.  If you think this is the load of horse pucky it is, let your Congressman and Senators know.

Posted in arizona certified medical malpractice lawyers, Doctors, Finding a Medical Malpractice Lawyer, Hospital Negligence, Hospitals, Lawsuits, Malpractice caps, Malpractice costs, Medical Costs, medical errors, Medical Malpractice, Medical Malpractice Case Value, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, medical negligence lawyers, tort reform |

What Is Your Family Worth Under The Republican Malpractice Bill?

September 25, 2017

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The Republican-controlled House of Representatives recently passed a bill intended to make things much worse for people injured by medical malpractice.  While there are many provisions that hurt victims of malpractice, today I am going to discuss only damage caps.  Regardless of whether you live in Arizona, where our state constitution forbids caps on damages, or some other state where they are permitted, the new law imposes a cap on “non-economic damages” in the amount of $250,000.00.  Non-economic damages are those which cannot be computed in dollars and cents.  They include the death of loved ones whose loss does not translate into dollars and cents.

See that picture of a happy family?  If one of those two lovely children were killed by a drunk driver in an automobile accident, the jury would be allowed to award the grieving mother and father whatever amount it deemed reasonable for the loss they had suffered.  It could be hundreds of thousands of dollars.  It could even be a million dollars or more.  Certainly here in Arizona, there would be no limit to the award, so long as it was reasonable.  The jury could even award punitive damages against the drunk driver.  The story would be different under the new House bill, however, if the child was killed during surgery because the surgeon was drunk and made a fatal mistake.

To what other losses would this hard-hearted limit apply?  We have covered the death of a child.  The jury, which is never to be told that its award will be reduced to $250,000.00, will have any award it makes reduced to $250,000.00 because the child was not working and not bringing money into the family.  How about a stay-at-home wife?  Conservative Republicans claim to like it when a mother stays home to raise and guide her children. While an argument might be made that the family will suffer an economic loss when it has to replace all the work Mom did before she died, the loss of her love, her guidance to her children and her bond with her husband must all cap out at $250,000.00 total.  Too bad if she had a large family with many children.  It will be a good lesson in sharing for them.

If the doctor cuts off the wrong leg, you will get money to buy a prosthetic leg but no more than $250,000.00 for the inconvenience of being on one leg for the rest of your life.  God gave you two kidneys.  One of them can’t be worth more than $250,000.00.  I could go on but I won’t.  I am sure you get the idea.

These caps are supposed to be part of a “tort reform” to address “frivolous” malpractice suits.  Any time politicians want to take away some of your rights, they call it “reform.”  That these caps address frivolous suits is clearly a lie.  The caps only come into play when the jury decides that the doctor or the hospital has done something wrong, in other words, when the jury has found that the suit is not frivolous.  Whom do the caps hurt worst?  It is not the person with a minor injury but the most seriously injured people who are hurt the worst by having politicians in Washington decide what a jury in Phoenix ought to do.  And they decide that without ever knowing any of the facts of the case.  The facts of the case are irrelevant to the actual purpose of the imposition of caps on damages.

So why are those most seriously injured by proven malpractice required to have their non-economic losses capped at $250,000.00, an amount surely never to be increased as long as the Republicans control any part of Congress?  Who benefits when doctors and hospitals are given special treatment at the expense of the regular people whom they have injured?  You do the math.  Campaign contributions in, restrictive laws favoring donors out.  Believe it or not, Republicans used to care about people.  Not anymore.

Posted in Doctors, Health Care Costs, Hospital Negligence, Hospitals, Lawsuits, Malpractice caps, medical errors, Medical Malpractice, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, medical mistakes, Medical Negligence, Secrecy, Surgical Errors, tort reform, Verdicts |

The Doctor Will Negotiate With You Now.

September 18, 2017

Not all prostate cancers are created equal.  Some are high-grade and life-threatening.  These tumors need to be addressed promptly and aggressively.  Many prostate cancer tumors, however, are slow growing and may never need to be actively treated.  For these low-grade tumors, watchful waiting is the best course. Watchful waiting is a good alternative for these tumors because all of the major treatment options for prostate cancer are likely to leave patients impotent or incontinent or both.

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There are great societal pressures in favor of aggressive responses to cancer.  Family and friends urge the newly diagnosed patient to have the cancer cut out.  The cancer doctor who suggests watchful waiting may be a lone voice crying out in the wilderness.

Dr. Behfar Ehdaie at Memorial Sloan Kettering Cancer Center in New York City was disappointed that many of his patients for whom he counseled watchful waiting were opting instead for definitive treatment with all its attendant risks.  He and a colleague began a search for ways to encourage watchful waiting among patients for whom it was the best choice.  Their search, which is the subject of a story in last week’s Wall Street Journal, led them to the Harvard Business School and a professor there who specialized in teaching negotiation tactics.  The conclusion was that physician advice to patients was indeed a form of negotiation and that the adoption of successful negotiating tactics might lead to patients making better treatment choices.

Dr. Ehdaie embraced the advice and began discussing watchful waiting as the first treatment option and emphasizing the rigorous nature of the observation.  The changes were effective and most of Dr. Ehdaie’s patients began to accept watchful waiting as their “treatment” of choice.  The program has since been expanded to other surgeons with similar results.

Congratulations to Dr. Ehdaie and his colleagues for innovative thinking that will both save money and improve patient outcomes.


Posted in Cancer, Doctors, Health Care Costs, Medical Costs, medical ethics, Prostate Cancer, prostate cancer testing |

You’re Not The Only One Unhappy About Medicine Today. So Are The Doctors.

September 04, 2017

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I wrote last week about the billions being siphoned out of the health care system to support the executives running various companies.  Turns out doctors are unhappy too.

I just finished reading a blog post by a doctor who complained about the rise of the health care administrator.  The doctor pointed out that over the last 30 years, the number of doctors in the United States has not risen much, despite a significant growth in the population.  On the other hand, the number of administrative personnel in the health care system has grown 3,000% over the same period of time.

According to the unhappy physician, doctors used to be in charge of their practices and made both economic and treatment decisions.  Today, however, administrators not only make economic decisions but increasingly tell doctors how to practice medicine by instituting protocols and treatment algorithms, which must be followed by the doctors.  Our doctor friend laments the loss of independence, the loss of the ability to make clinical decisions on the basis of the needs of the individual patient and the loss of the ability to innovate in patient care.  He says doctors are losing their justified and necessary place at the center of the health delivery system and becoming no more than cogs in a big wheel.

His message is that doctors must stand up for their independence and regain their position at the center of health care if they are to continue to innovate and improve the practice of medicine

Posted in Doctors, Health Care Costs, Medical Costs |

What Is Driving Health Care Costs? Hint: It Is Not Medical Malpractice Claims.

August 28, 2017

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You don’t need the graph above to tell you that health care costs are going up and up.  Why is that?  Well, the medical profession and its political enablers will tell you it is runaway medical malpractice suits.  In point of fact, the number of medical malpractice claims has been dropping for years despite a rising population.  What have been going up, and sometimes spectacularly so, are the administrative costs associated with health care.

Today, there are fewer and fewer doctors who own their own medical practices.  Large health care groups have been buying up individual practices and making the doctors their employees.  Here in Arizona, Banner Health has been the largest aggregator of hospitals and physician practices.  This means that when you go to a doctor and pay that doctor’s bill, you are often paying not only the doctor but the health care system that employs the doctor.  Throughout the United States, these systems have been getting larger and larger as they gobble up more and more hospitals and physician practices.

Add to the salaries of those who administer these health care companies the money paid to those who run the drug companies and the health insurance companies and you get billions of dollars being siphoned out of the health care system to pay what are often extravagant salaries.  Here is a link to a list of the 20 highest paid health care CEO’s in 2015.  Their compensation ranged from a high of $47.46 million to a “low” of only $14.84 million.  The total 2015 compensation to these 20 executives alone was a staggering $406.84 million.  Those numbers have only gone up since 2015.  In 2016, the typical health care CEO took home $12.6 million in compensation.  In 2016, the highest compensation for a health care CEO had jumped to $51.3 million.

Of course, it isn’t just the CEO’s who are being paid big bucks.  Each CEO has a team of executives working with her or him who must also be paid.  Here in Arizona, for example, the total executive compensation paid by Banner Health in 2015 was $26.33 million.  Not bad pay for someone working for a non-profit organization.

A lot of hard working Americans struggle with medical bills to pay the salaries of the executives who run the health care system.  There has to be a better way to deliver health care without a bureaucracy that drains so much money out of the system and there is.  It is called “single payor.”  Hopefully, it will be coming to a country near yours in the near future.

Posted in Doctors, drug companies, Fee for Service, Health Care Costs, Health Insurers, Hospitals, Malpractice costs, Medical Costs, Medical Malpractice, medical malpractice cases, medical malpractice claims |

Medical Secrecy Harms Patients.

August 21, 2017

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Medical care is shrouded in secrecy.  While most doctors are good, competent, caring people, there are some who are incompetent and whose incompetence harms patients.  Who are these doctors?  Many in the medical profession know who the incompetents are but no one tells the public.  No one tells the patient when there has been a medical mistake made.  Instead, the patient is left to wonder if the bad outcome was, as suggested, just one of those things or if it was medical malpractice.  Sometimes, a word is whispered in an elevator or hallway suggesting to the patient that he or she should see a lawyer.  Why must it be this way?  Why won’t doctors be honest with their patients when they have made a mistake which has injured the patient?  Why do they sometimes deliberately mislead their patients about what happened?  Why do those around the doctor who know a terrible mistake has been made permit the doctor to get away with it?  Why do those in the medical profession who know another doctor is incompetent or has a substance abuse problem keep that information hidden not only from the public but also from the medical board?

We have been brought up to believe that we should learn from our mistakes.  How do we learn, if we never admit we made a mistake in the first place?  How do we learn, if we not only don’t admit to a mistake but deny we made one?  How do others learn from our mistakes, if we hide those mistakes?  Every settlement agreement I have ever been asked to sign after settling a malpractice case contains a clause upon which the defendant doctor or hospital insists.  The clause denies that any mistake was made and makes the patient and the patient’s attorney promise never to reveal that money was paid to resolve the claim.  If there is a system more rigged to perpetuate mistakes, I cannot think of what it might be.

Malpractice defense attorneys will admit privately that there are doctors whom they refer to in private as “frequent flyers.”  These are the doctors who get sued over and over again by patients and yet are permitted to continue to practice medicine.  Since all malpractice suits are disclosed to the Arizona Medical Board, it is clear that the Medical Board knows who these people are and just doesn’t care as these doctors continue to practice and continue to injure people.

Medical secrecy is not just a health problem.  It is not just a legal problem.  It is an ethical problem as it involves doctors not being honest with their patients.  Sometimes it involves out-and-out lying to the patient or the patient’s family.  What is the response of the medical profession and its enablers when a doctor or a hospital is finally called to account for a mistake?  They cry that frivolous malpractice cases are driving up health care costs and driving doctors out of practice and that something needs to be done about it.  A little more honesty and a little less secrecy on the part of the medical profession would be a welcome change.

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Fraud, Health Care Costs, Hospital Negligence, Hospitals, Lawsuits, Malpractice costs, Medical Costs, medical errors, medical ethics, Medical Malpractice, medical malpractice claims, medical mistakes, Medical Negligence, plaintiff, Secrecy, Surgical Errors, tort reform |

Infections: The Toughest Medical Malpractice Cases

August 14, 2017

Virus, Microscope, Infection, Illness

Although everyone wishes it were otherwise, infections and hospitals are inextricably linked.  Hospitals treat the sickest people and many of them have infections.  Some of those infections have developed resistance to antibiotics.  Despite programs to promote good hygiene and prevent the spread of infection, infections move from patient to patient.

We receive calls on a regular basis about patients who developed an infection in the hospital.  Often these infections have led to disastrous outcomes, including limb amputations, organ failure and death. These are particularly sad cases because, except in unusual circumstances, it is almost impossible to prove that an infection was the result of medical negligence.  Any expert witness testifying on behalf of a plaintiff in an infection case will be forced to admit that infections can happen in the best hospitals with the best nurses and the best doctors doing the best that they can.  No one ever sees a nurse or doctor entering the patient’s room carrying infection-causing bacteria.  Short of an infection outbreak in a hospital, which suggests a problem with infection control, it is almost always a mystery as to how the patient became infected.

If we cannot prove that the infection was the result of medical malpractice, we cannot recover for the patient against the hospital or doctor who transmitted the infection to the patient. This means that when confronted with an infection case, we must go to the next question: Was the infection identified promptly and treated appropriately?  Many times the answer is that it was not identified and treated promptly and appropriately.

When there was a delay or a delay coupled with inappropriate treatment, we can bring a claim for the infected patient or the patient’s family and have a chance of success.  One limitation, however, is that we can never recover for the original infection. We can only recover for the additional damage caused by the delay or the inappropriate treatment.  Sometimes, this means that the recovery for the patient will be quite limited.  On other occasions, when the infection could and should have been nipped in the bud, we may be able to make a recovery for almost all the harm suffered by the patient.

Infection cases are also tough cases because the defense always has a number of arguments available to it.  They will argue that the infection was hard to spot and that they discovered it as soon as was reasonably possible.  They will say that we are being unrealistic in claiming that the infection could have been discovered earlier.  Next they will argue that the infection was very advanced, even by the time we say it should have been detected, and would have been very hard to treat successfully. Lastly, they will argue that the infection was a bad one which would not have responded well even to earlier treatment so whatever damage resulted was likely to occur no matter what.

There is still more the medical profession can do to prevent the spread of infections.  It has been pointed out that a male doctor’s tie is one of the most germ-infested things in the hospital.  It goes with the doctor from room to room and from patient to patient and is rarely, if ever, disinfected.  Despite hospital protocols for hand washing, people are only human and sometimes do not wash as frequently as they should.  Patient advocates suggest patients should not let a nurse or doctor touch them unless they assure themselves that the nurse or doctor just washed their hands.  While there is little we can do when we are patients in the hospital to prevent becoming infected, this is at least something we can do.  If it offends the doctor or nurse, too bad.


Posted in antibiotic resistant bacteria, blood infections, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical mistakes, Medical Negligence, plaintiff |

More Proof That Medicine Is A Business

August 09, 2017

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Another day, another proof that medicine is a business, as if we needed any more proof.  Many hospitals are hiring staffing companies to supply doctors to work in various parts of the hospital.  This is a particularly common occurrence in emergency departments.  By hiring a staffing company, the hospital does not have to locate and contract with physicians, handle vacations, scheduling, benefits and the like.  It is simple for the hospitals. Hire the staffing company and let it do the rest.  Unfortunately, it may also be very expensive for the hospital’s patients.

Most hospitals have negotiated prices with the local health insurers.  Having negotiated prices, these hospitals are now “in network” for the customers of those health insurers.  Amounts charged by “in network” providers are discounted by agreement. If a patient sees a provider who is out of network, not only will the price not have been discounted, there is usually a penalty in the form of a requirement that the patient pay a higher percentage of the bill than if the provider were in network.  It is very important for the patient to be treated by an in network provider.

Here is where the problem with staffing companies arises.  Even if your hospital is in network, the staffing company’s doctors may not be.  As reported here and elsewhere, this has resulted in some nasty surprises when patients visiting the emergency department at a hospital in their network receive a large out-of-network bill directly from the emergency physicians.  The staffing company mentioned in the stories linked above, Emcare, is the largest supplier of emergency physicians in the country.  It supplies emergency physicians to a number of hospitals here in the Phoenix area.  Very often, its physicians are not in network.  Emcare sends bills which are not only out-of-network but which reflect substantially higher charges for the same services that were provided by whoever ran the emergency department before.  In at least one hospital in the state of Washington, the number of emergency department patients who required what the doctors claimed was the highest level of medical care increased by almost five times after Emcare took over the emergency department.  Using billing codes, the higher the level of care provided, the more Emcare charges for the services of its doctors.  It would be surprising if the patients at this hospital became five times sicker once Emcare started running the emergency department.

Emergency care is just that – emergency.  When we need emergency care, we don’t have the luxury of time to investigate which hospitals are in network and whether all of the doctors who will see us at an in network hospital are in network as well.  There is very little we can do to protect ourselves from out-of-network doctors hiding in hospitals that are in our networks.  I wish I had a better answer for you.  The best I can do is suggest that before that emergency arises, you find out which local hospitals are in your network and whether their emergency physicians are in network as well.  My only other advice is, “Don’t get sick and need emergency care.”  Good luck with that.


Posted in Doctors, Health Care Costs, Health Insurers, Hospitals, Medical Costs, medical ethics |