Medical Malpractice News and Views


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

Medical Ethics and Secrecy. You Cannot Have Both.

June 20, 2022

Over the many years I have been representing victims of medical malpractice, I have found that almost never will anyone inform the patient that he or she has been the victim of malpractice.  The sole exception is when a foreign object is left behind.  It is pretty difficult to pretend that the presence of a foreign object left behind in the body is just one of those things that happen from time to time through the fault of no one.  There aren’t very many foreign objects left behind so, in the vast majority of malpractice cases, the patient is on her or his own in figuring out what happened

So where do medical ethics fit into all of this?  Doctors have an ethical duty to be honest with their patients.  Only under certain limited circumstances can they withhold information from their patients.  Each of those limited circumstances requires that the withholding of the information be in the best interest of the patient.  It is unethical for a doctor to withhold information from the patient for the benefit of the doctor.  As you can see, there is no ethical justification for a doctor to fail to inform her patient that they have been injured by a medical mistake and yet it happens every day of the week in every large hospital in this country and probably twice on Sundays.

Doctors like to posture about how honest and ethical they are.  Sadly, for many of them, they are only honest and ethical when it suits their interests.  If honesty is going to require financial sacrifice, or embarrassment or the admission of a mistake, they are not going to be quite so honest and open.

Doctors are almost always held in high regard in society.  Many of them are paid very well for the services they provide.  They live in nice houses and drive fancy cars.  They also want society to give them privileges that are not given to other professions or to the rest of the general public.  For example, throughout the United States doctors routinely ask that they be given special treatment when it comes to lawsuits.  They want to limit the rights of the patients who get injured by medical negligence.  As a general rule, doctors win about 80-85% of malpractice cases that go to trial.  It is hard to convince a jury to find against a doctor.  When a patient does manage to convince a jury to award them damages because of medical malpractice, doctors want to have those damages limited, so that they can put more money in their pockets.  The fact that they spread money around at the state legislature and make large campaign contributions doesn’t hurt when it comes to asking for these special privileges.  There is also often an implied threat that doctors will go elsewhere to practice medicine, if they are not given special privileges.

Another reason doctors claim they are entitled to special privileges is because they are the real victims when a malpractice suit is brought.  Not only do they hide their malpractice from their patients when it occurs, they claim that there is really very little malpractice in the first place.  Their unethical behavior in withholding information from their patients about why they are damaged, is used as evidence of the absence of malpractice in general.  They claim malpractice rarely occurs and that suits against them are frivolous.

It is not just the malpracticing doctor who unethically hides information from his patient.  His fellow doctors go right along.  In today’s world of medicine, there are so many doctors involved in the care of a patient that it is an unusual case in which a number of doctors are not aware when something goes wrong and why.  Yet no one says a word.  These honest and ethical pillars of society keep their mouths closed and leave the patient to fend for herself.

I guess it is asking too much of these honest and ethical doctors that they actually be honest with their patients.  Just don’t walk around taking bows for being so ethical when you are only looking out for yourself.

 

 

 

 

Posted in disclosure of medical mistakes, Doctors, Fraud, Hospitals, Malpractice caps, Malpractice costs, medical errors, medical ethics, Medical Malpractice, medical malpractice damages caps, medical malpractice lawsuits, medical mistakes, Medical Negligence, never events, Nurses, plaintiff, Secrecy, tort reform, trial |

Want To Live Longer and Healthier? Think Positive.

June 13, 2022

My mother lived until just before what would have been her 96th birthday.  She had a great attitude about life.  She kept busy gardening and volunteering as long as she could.  When old friends passed on, she made new, younger friends.  She talked to her friends on a daily basis.  She read the paper every day and kept up on world and local affairs.  She remained mentally sharp and engaged right up to the end.  I certainly hope that some of that will pass down to me but science tells us that we have more control over our later years than we ever thought.

old man old age happy

The brain is a powerful organ.  The most recent research suggests that people with positive attitudes about aging tend to live substantially longer and healthier lives than those who have negative thoughts about aging.  This is true even after allowing for other variables.  It is not just the people who start out healthy whose positive attitudes extend their lives.  Even those with pre-existing health problems can obtain a great deal of benefit from positive attitudes.  And, it turns out, we can improve our attitudes, if we work at it.

Here is a link to an interview with an author who has written on the subject of the benefits of a positive attitude and how we can go about improving our attitudes.  The first step she recommends is becoming aware of the attitudes we already have about aging.  For example, what are the first things you think of when you think of an older person?  Are you thinking about sickness, dementia, disability or are you thinking about activity, social interactions, using leisure to make the community better?

The author next recommends listening to comments around you.  What do the people you come into contact with think about older people?  Do they harbor negative stereotypes or positive ones?  Don’t let the negativity around you drag you down.  Speak up and don’t let negative attitudes fester.  Advocate for all older Americans bring to their families and communities.

Many older Americans are positive contributors to their communities.  They volunteer at charities or at the library or for political campaigns.  Like my wife, many grandparents help their children by picking up grandchildren from school or babysitting when a child is too sick to go to school or is off from school while Mom or Dad still have to go to the office.  Some older people are successful enough to be able to donate, not just their time, but some of their excess funds to make their communities a better place to live.

Be active.  Sedentary lifestyles lead to early mental decline and physical disability.  People who are more physically active often have better mental attitudes.

Lastly, avoid social isolation.  The more an older person interacts with others, the better for everyone.  Be like my mother and make new, younger friends.  Be sure not to neglect your old friends.  Make a special point to call them or go see them, especially if they are alone.

May you live a long and happy life.

 

Posted in General Health, health, healthy living |

Traveling Nurse Allegedly Feeds Her Drug Habit at Hospital Medicine Cabinet

June 06, 2022

The Covid pandemic has made the nursing shortage worse.  One of the results of the nationwide nursing shortage has been an increase in the number of traveling nurses, nurses who work for a staffing service and who are sent from hospital to hospital on a temporary basis.  The near constant movement of these nurses makes it even more difficult than usual for state nursing boards to keep track of nurses and to exercise supervision and discipline.  Sometimes, these traveling nurses are on the move one step ahead of the sheriff.

Iowa nurses sanctioned for sex with patients, meth use and other violations - Iowa Capital Dispatch

Today’s story is about a traveling nurse from the Southeast, who stands accused of tampering with vials of narcotics and then returning the contaminated vials to the hospital supply cabinet.  She was discovered when another nurse noticed something unusual about a vial of a potent painkiller in the cabinet.  It looked at though it had been tampered with.  It appeared the top had been removed and then glued back on.  The hospital removed the vials that appeared to have been tampered with and sent them to the state crime lab for analysis.  The crime lab reported that the contents did not match the manufacturer’s specifications.  Someone had taken some of the painkiller and refilled the vial before replacing the top.  By the time of the state crime lab report, however, the nurse had left the state and was working at a hospital in a different state.

The hospital at which the vials were tampered with now had a big problem.  Had the nurse just taken narcotics?  Had the nurse taken narcotics in such a way that what was left behind was contaminated?  Had patients who received narcotics before the tampering was discovered been exposed to HIV or hepatitis or any of a number of illnesses?  How to determine who might have been exposed and warn them?  The hospital believes that as many as 100 patients may have been exposed to the contaminated vials.

Meanwhile, at the new hospital, the pattern repeated itself.  The nurse was suspected of tampering with narcotics vials and then replacing them in the hospital supply.  The new hospital also turned over to law enforcement vials suspected of having been opened.  The results of testing on those vials is not yet available.

Authorities in Tennessee, where the nurse was first suspected of tampering have issued arrest warrants for her.

It is hard enough for the state nursing boards to keep track of the nurses working in their state when the nursing population is stable.  The problem is compounded when nurses move easily and frequently from state to state.  There must be a high level of communication between the state boards to assure consistent monitoring and discipline.  The need for strong regulation and discipline is further exacerbated by the move on the part of many states faced with a shortage of nurses to dumb down the requirements to be allowed to practice as a nurse.  No nursing school diploma?  No problem.

The public deserves to have nurses who are well-educated and well-trained.  The public also deserves to have these nurses well-supervised and the subject of thoughtful, consistent discipline.  It is time for the various states to spend the money that it takes to make sure the nurses practicing in the state are properly trained and disciplined.

 

Posted in Fraud, Hospitals, medical ethics, Medical Malpractice, medical mistakes, Nurses, Secrecy |

Another Volley In The Alcohol Is Good/Bad For You War.

May 30, 2022

There is an old adage, often attributed to Benjamin Franklin, that beer is proof God loves us and want us to be happy.  To the extent that old Ben offered an opinion on this issue, he was probably talking about wine and not beer.  No matter.  That saying always resonated with me.  I love beer and wine and have taken comfort over the years in the reports of studies that say moderate drinking is good for you.   Sadly, not all studies of the effects of alcohol agree on its merits.  Not only do some studies disagree that moderate alcohol intake is good for you, they claim that almost any amount of alcohol is bad for you.

List of Sweet Red Wines Well Worth Trying | LoveToKnow

Alcohol has been around almost as long as people have been walking upright on the face of the earth.  While the historical record is not very detailed about exactly when alcoholic beverages were first produced, many researchers believe that the alcohol was discovered by early man in naturally fermented fruits and then reproduced.  Some of the earliest documented traces have been found on pottery shards from China believed to be over 9,000 years old.  Chalk up another first for the Chinese.  Similar evidence has been found in Iran dating back 7,500 years, in Egypt and Babylon going back 5,000 years, and in ancient Mesoamerica going back 4,000 years.  Suffice it to say, alcohol has been with us for a long time in various forms and has probably been discovered over and over again in many places and at many times.  Its very persistence is a sign of its power and pleasures.

We don’t need rigorous academic studies to tell us about the potential harms associated with the abuse of alcohol.  They are plainly visible everywhere we look.  What people are arguing about is whether moderate intake of alcohol is good or bad for us.

Moderate intake of alcohol is generally considered to be one drink a day for a woman and two for a man.  Above that level of intake, there is general agreement that the risks outweigh the benefits and the greater the amount consumed, the greater the risks.

There is a demonstrated relationship between moderate intake of alcohol and a reduced risk of coronary artery disease.  Moderate intake appears to be good for the heart and the circulatory system.  It also seems to provide some protection against Type 2 diabetes and reduces the risk of an ischemic stroke in the brain.  In addition to these health benefits, alcohol provides some stress reduction, improves digestion and facilitates some social interactions.  That’s pretty much it for the good effects.  The list of the bad effects is much longer.

Excessive alcohol hurts the liver and the kidneys.  It raises blood pressure.  It increases the risk of certain cancers.  It precipitates weight gain.  It increases the risk of accidents and of sudden death for those with pre-existing coronary artery disease.  It can lead to malnutrition and accelerates the aging process.  It may cause brain damage in unborn children.

The latest study, and the one which prompted this blog post, is from Great Britain.  Using biological data for over 35,000 Britons, the researchers found that even small amounts of alcohol were associated with loss of gray matter in the brain and interference with the white matter structure of the brain as well.  These changes are known to cause thinking and memory problems.  Another of the discoveries was that for an otherwise heathy, middle-aged person, increasing intake from one drink per day to two had the effect of aging the brain by two years.   Increasing to three drinks a day aged the brain 3.5 years.  Further increases had an exponential effect on the brain and the body.  Bottom line is that even a little alcohol is probably bad for you and a lot of alcohol is really bad for you.

We all have to make our own decisions about how to handle alcohol.  Many doctors recommend that if you do not already drink alcohol, don’t start.  For those of us who do drink alcohol, we need to be mindful of its risks and to be moderate in our intake.  While it may be healthier not to drink at all, life without alcohol would definitely be less enjoyable.

 

Posted in Birth Injuries, Cancer, General Health, healthy living, science news, Stroke, Type 2 Diabetes |

Virginia OB/GYN, Who Routinely Performed Unnecessary Surgeries, Gets Prison Time

May 23, 2022

There are predators in the medical profession.  The profession is unable or unwilling to root them out.  The doctor I writing about today was proven to have preyed on vulnerable women in Southern Virginia for at least ten years between 2009 and 2019.  He almost certainly preyed on them for much longer than that.  He never should have had the chance.  As early as 1982, he lost his privileges at a local hospital for “poor clinical judgment” and for performing unnecessary surgeries.  His license to practice medicine was temporarily revoked in the 1990’s but reinstated in 1998.  How in the world was this man allowed to continue to practice medicine when he was a known predator?  His story is sadly one which is repeated over and over.  Patients deserve better.

Dr. Javaid Perwaiz was convicted of performing medically unnecessary surgeries and 52 counts of health care fraud. 

Dr. Javaid Perwaiz was an obstetrician and gynecologist who performed surgery on his female patients in the Norfolk area of Southern Virginia.  Apparently, Dr. Perwais was not satisfied with only performing the surgeries his patients actually needed.  To produce additional income, Dr. Perwais told some of his patients that they had cancer when they didn’t or that they would develop cancer, if they did not allow him to operate on them.

He kept many of his patients in the dark about what surgeries he was performing on them.  Hospital personnel became concerned when some of his patients told them they were at the hospital for their “annual clean out.”  Some women who were having difficulty getting pregnant after having had surgery performed by Dr. Perwaiz discovered that he had performed sterilization procedures on them without their knowledge or consent.

In addition to victimizing his many patients, Dr. Perwaiz defrauded health insurance companies and the Federal government by seeking and receiving payment for unnecessary surgeries.  He was finally arrested, tried and convicted in 2020 on 52 counts of health care fraud and filing of false statements.  As a result of his conviction, he has been sentenced to 59 years in prison.  The government also seized millions of dollars of cash and luxury automobiles, which it alleged were obtained with the funds he fraudulently obtained.

Dr. Perwaiz joins the ranks of other surgeons and physicians who have lied to their patients about their condition in order to get them to agree to undergo surgery.  The threat of cancer is a common theme for these people.

You will note that so far the story makes no mention of justice for the poor women victimized by Dr. Perwaiz.  Many of them were mutilated by his surgeries.  Many underwent needless pain and suffering from unnecessary surgeries.  Many certainly spent sleepless nights crying about the cancer they did not have.  Lawyers are circling these women and asking for the opportunity to represent them but one thing is for certain:  Dr. Perwaiz will not have enough insurance or assets to make it up to these women for what he put them through.

One of the lessons to be learned from the case of Dr. Perwaiz and his many predatory colleagues is that no one is minding the store while these people are hurting their patients.  When these people are discovered, it is almost always only after many years of predatory behavior.  They are often only discovered when they slip up and someone makes an unexpected discovery.

Where are those people who complain so loudly about medical malpractice suits while all this predatory behavior is going on?  Why don’t they take a little time away from their own busy practices making money to take a look at what their neighbors are doing and make sure they are on the up and up?  Why don’t they clean up their profession?  There is no way the lay public can know if people like Dr. Perwaiz are taking advantage of them.  Only those trained in medicine can make that determination but they are unwilling to devote the time or resources it would take to protect the public.  It is easier for them just to blame the lawyers for being greedy and ask politicians to protect them from lawsuits, even meritorious lawsuits.

Physician, heal thyself.  Cleaning up the medical profession would go a long way toward reducing medical malpractice lawsuits and it would benefit the public as well.  Keep that in mind the next time you hear some doctor or medical group complain about the burden of medical malpractice lawsuits.

Posted in Arizona Medical Board, Cancer, disclosure of medical mistakes, Doctors, Fraud, Health Care Costs, Health Insurers, Lawsuits, medical ethics, Medical Malpractice, medical malpractice cases, medical malpractice lawyers, medical mistakes, Medicare, never events, plaintiff, Secrecy, Surgical Errors, tort reform |

Capitalism Can Be Bad For Your Health

May 16, 2022

Capitalism has done wonders for the world in terms of raising the standard of living for so many people.  Of course, like everything else in this world, capitalism is not an unbridled blessing.  It has its dark side.  When it comes to health care, capitalism has caused a lot of problems.  Among them are the rise of health insurance giants, the growth of hospital chains, big pharma, and the increasing emphasis on medicine as a business whose goal is to make money to name just a few.  Today, I want to discuss how capitalism affects rural hospitals.  Rural hospitals face many problems trying to serve their communities.  Capitalism sometimes makes things worse.

Public health: Gore and glory | Nature

If you had to design a system that would almost force rural hospitals to fail, you would do well to copy our present system.  Start with the absence of health insurance for many people who live in rural areas.  They need health care but cannot afford to get it.  Hospitals that provide care to them are stuck with bills that they can never collect.

The populations that rural hospitals serve are shrinking in most areas.  People are moving to the cities.  Many small towns are dying and taking their hospitals with them.  Most of the hospitals that have closed in the United States in recent years have been in rural areas.

Medical professionals, who spent years in school and have lots of student debt, often don’t want to practice in small towns with limited cultural opportunities.  Even if they enjoy small town life, they may not be able to meet their financial obligations with the limited money they can make in a rural as opposed to an urban area.

Rural hospitals need big ticket surgeries covered by insurance to compensate for care provided to uninsured patients but many insured patients are choosing to have their big surgeries in the nearby city.  This leaves the rural hospital with less profitable services such as outpatient procedures and emergency department visits.   They face increasing competition for even this revenue source from physician-owned surgery centers and freestanding urgent care centers.

Perversely, another problem rural hospitals face is that they often own the valuable land their hospital is built on.  This valuable real estate attracts venture capital, which buys the hospital and sells the real estate to a separate entity.  The new entity then leases the land back to the hospital.  The hospital, which was already having trouble making ends meet, now has a bill for rent that it did not have before.

Capitalism is driving all of these changes.  After making it almost impossible for rural hospitals to succeed, capitalism insists that rural hospitals fully pay their way.  Capitalism insists the law of supply and demand should apply to these hospitals.  If they cannot pay their way, they must not be really necessary and should go out of business.  This is a slap in the face of the people who live in rural areas and need health care.  Sorry, capitalism, our fellow citizens who live in rural areas deserve health care and it should be the obligation of the state to make sure they get it.

 

Posted in Doctors, drug companies, General Health, Health Care Costs, Health Insurers, Hospitals, Medical Costs |

Doctor Conflicts of Interest Are Getting Worse.

May 09, 2022

“Under no circumstances may physicians place their own financial interests above the welfare of their patients.”  American Medical Association Code of Medical Ethics Opinion 11.2.2.

Doctors rightly occupy a privileged position in our society.  We entrust them with our bodies, our health and, indeed, our very lives.  We trust them to put our interests first.  We trust them not to take advantage of us.  We trust them to be honest with us.  Without this level of trust, the physician/patient relationship cannot work.  Sadly, it seems that more and more often doctors are putting their own interests ahead of ours.  We need to be aware of this and to take it into account in our dealings with our doctors.  To do otherwise is foolish and naive.

Physician Conflicts of Interest

There are many ways in which a doctor can have a conflict of interest and the possibilities are increasing all the time.  Conflicts vary in terms of their influence and effect on the conduct of the doctor.  However, even when the doctor does not believe that the conflict is having any effect on her decision making, studies show it usually is.

Here are some conflicts of interest you should be aware of and take into account in your dealings with your doctor.

  • Relationships with pharmaceutical companies.  These can come in many flavors.  Representatives of pharmaceutical companies go from doctor office to doctor office meeting with doctors and handing out drug samples.  They take doctors to lunch or dinner.  They may give the doctor gifts.  The companies themselves hire doctors to speak at meetings or to advise the company on this issue or that.  Some doctors partner with pharmaceutical companies to develop new products.  The one thing all of these relationships have in common is that they are likely to play a role when it comes time for the doctor to decide whether to order a specific drug or whether to recommend a particular drug regimen.  Certainly, the drug companies believe in this effect or they would not be spending the amount of money they do trying to influence doctors.
  • Relationships with financial firms.  Some doctors have partnered with financial firms to “assist” their patients in getting financing so they can afford the services the doctor provides.  This occurs most often in the cosmetic surgery field where the patient’s health insurance doesn’t apply and the patient has to pay for the procedure on his or her own.  The doctor’s staff will sometimes help patients with the application process.  The interest rates charged by these companies may be much higher than what the patient could get on the open market.  The doctor may get a fee for every patient who signs up for a loan.
  • Relationships with manufacturers.  We live in an age of prostheses.  Surgeons often use hardware, which they place in our bodies.  These range from stents to keep coronary arteries open to spinal hardware to the hardware used in knee and hip replacements.  Some surgeons buy the hardware they are going to place in their patients directly from the manufacturer.  They then sell it to the hospital at which they are going to operate.  This purchase and sale by the surgeon can add many thousands of dollars in income for the surgeon from a given procedure.  Researchers have consistently found that surgeons who have these companies and have a financial interest in the hardware they use, place far more hardware than their colleagues who don’t buy and sell hardware.  This is not a coincidence.
  • Relationships with treatment centers.  Doctors may have a financial interest in the treatment center to which they send their patients for certain therapies or for surgery.  If they have such a financial interest, they tend to send more patients for these therapies or surgeries than do their colleagues who do not have the same financial interests.  One documented example was reported by the Wall Street Journal when it studied urologists who invested in expensive radiation machines for treating prostate cancer patients.  Those urologists who bought the machines were much more likely to order use of the machines for their patients than urologists who did not own the machines.  Again, this is not a coincidence.  These doctors have made a large investment and want to get their money back and to make a profit to boot.
  • Financial interest in the procedure to be performed.  There are many medical conditions which can be managed either with medical therapy or with surgery.  When you go to see the surgeon for a surgical consult, keep in mind that the surgeon gets paid for performing surgery.  She has a financial interest in recommending a surgical approach to your problem.  Study after study has found that surgeons perform many procedures that are not medically necessary and that could be handled as well or better by medical treatment.  This conflict on the part of the surgeon does not mean that surgery is not the best option for you.  It only means that you should be a critical listener and get a second opinion, preferably from someone without a financial interest in your decision.
  • Relationships with hospitals.  Hospital chains have been buying physician practices and the trend is accelerating.  When your doctor works for a hospital chain, she or he may be encouraged to send you to one of the chain’s hospitals for treatment or to therapy centers owned by the chain.  The hospital chain expects to increase its business and its profits by purchasing these doctor practices or it would not be opening up its wallet to buy them.

As President Ronald Reagan famously said, “Trust but verify.”  Ask questions of the doctor about conflicts.  Use the federal government site that shows payments from drug companies and manufacturers to doctors.  https://www.cms.gov/openpayments.  Remember that doctors are business people who are selling you a service.  Just because a doctor said it does not make it true.

Posted in Doctors, drug companies, Fee for Service, Health Care Costs, Health Insurers, Hip Replacement, Hospitals, joint replacement, Medical Costs, Medical Devices, medical ethics, Medicare, Plastic Surgery, PODS, Prostate Cancer, Secrecy |

Choosing A Lawyer.

May 02, 2022

I recently spoke to a gentleman, who lives here in Arizona,  Let’s call him, Bob.  Bob had been involved in an accident in another state.  The accident was the fault of the other driver.  The tow truck driver, who removed Bob’s motor home from the scene, told him he knew a good lawyer and had the lawyer call Bob.  Bob agreed to use the lawyer to make a claim for his property damage and his personal injuries.  It has now been almost two years since the accident and the lawyer won’t answer Bob’s calls, won’t send him correspondence with the other driver’s insurance company and is generally completely unresponsive to Bob’s requests for information.  Bob wanted to know what his options were.  I told Bob the first thing to do was to fire this lawyer and to demand that the lawyer send Bob his file.  Then I helped Bob find a good lawyer in the other state to represent him going forward.

Legal Ethics and Professional Responsibility

Sadly, there are lots of bad lawyers out there.  Some are new and just plain inexperienced.  Some have a lot of experience but little talent.  Some are lazy.  Some are both incompetent and dishonest.  Some are just plain dishonest.  While on the whole I believe the legal profession does a better job than the medical profession at policing itself and weeding out bad members, that is a pretty low bar and a lot of bad lawyers have either slipped through the cracks or just have not been caught yet.

I have written often about the importance of doing some basic research before allowing a doctor to perform a medical procedure on you or to make medical decisions about your care.  It is almost as important to do that same kind of checking before hiring a lawyer to represent you.  The biggest difference between making a mistake in choosing a doctor and a lawyer is that whatever mistakes a lawyer makes can usually be put right with money.  Doctors, on the other hand, can kill or maim you and no amount of money will make that right.

There are not as many ways to identify a problem lawyer as there are to identify a problem doctor.  Problem lawyers don’t get sued the way problem doctors do, so the presence or absence a lawsuits against them is not much of a key.  Bad lawyers usually just shuffle along and don’t cause quite enough harm to justify a suit.  They just give poor service to their clients and maybe drive them crazy.  Sometimes, the clients don’t even realize how bad their attorney is or how much money was left on the table when their case was settled.

One of the best ways of avoiding a problem lawyer is to look for a lawyer in places problem lawyers are not usually found.  You won’t usually find bad lawyers in Best Lawyers in America or in Superlawyers or in the American College of Trial Lawyers or in the American Board of Trial Advocates or among the lawyers certified as specialists by the State Bar of Arizona.  Choosing a lawyer who appears in one or more of these lists will not guarantee a good result or a great lawyer but, like choosing a board certified doctor, you will have given yourself the best chance of a good outcome.

As a general rule, I would recommend ignoring any lawyer who calls you or who is recommended by a tow truck driver or even a doctor.  You never know why these people are making the recommendations.  Often there is money or some other reward offered for successful referrals.  Even if they honestly believe in the lawyer they are recommending, there is no way to tell whether they have a legitimate basis for that belief.  Instead, you should affirmatively choose your lawyer and a good place to start are the lists I mentioned.

A word about advertising lawyers.  They are of uneven quality.  Just because they advertise does not mean that they are good lawyers or bad lawyers.  It just means that they are willing to spend a lot of money to get on the side of a bus or on a billboard.  Most of the time, advertising lawyers are not going to be found in the lists I mentioned.  Often, if cases they take need to be tried, they refer them out to an experienced trial lawyer.  One thing I can tell you about advertising lawyers is that you will usually not get much in the way of personal attention from an actual lawyer in those firms.  They typically use a lot of legal assistants to process their cases.  Some of those assistants will be very good and some won’t.  You just never know.

You are entitled to the services of a good, experienced, responsive attorney and you should insist on getting exactly that. Don’t settle for less.  If you are not getting what you are entitled to, don’t be shy.  Fire the unresponsive attorney, get your file from him or her and move on to an attorney who will give you good service and quality representation.

Posted in arizona certified medical malpractice lawyers, arizona certified personal injury lawyers, Arizona Medical Board, Doctors, Finding a Medical Malpractice Lawyer, Lawsuits, plaintiff, trial |

Medical Malpractice or Criminal Conduct?

April 25, 2022

Last week I wrote about an ICU doctor in Ohio, who was accused of deliberately overdosing 11 of his critically ill patients with a powerful painkiller and thereby shortening their lives.  After nearly a week of deliberations, the jury acquitted him on all charges.

Today I want to write about another criminal case involving a medical professional, but one which involved quite different legal issues.  In this case, a nurse in Tennessee was convicted of negligent homicide for giving a patient the wrong medication, which allegedly caused her death.  Unlike the case against the ICU doctor, there was no allegation that the nurse intended to cause any harm to the patient.  The only claim is that she was negligent.  She is awaiting sentencing but her case has sent huge shock waves throughout the medical profession.

Medical error—the third leading cause of death in the US | The BMJ

The illustration above is from 2013 but the leading causes of death in the United States have not changed much since then.  Preventable medical errors are the third leading cause of death, accounting for about 250,000 deaths each year.  These figures are courtesy of the federal government’s Centers for Disease Control.  Only a tiny fraction of these deaths caused by medical malpractice ever become the subject of a claim for compensation.  As evidenced by the furor over the arrest and conviction of this nurse, no one ever gets prosecuted for accidentally causing a patient’s death – until now.

The nurse in question was tasked with administering a sedative, Versed, to an elderly patient, who had suffered a brain injury and who was being prepared for a scan.  The Versed was to calm the patient so she would relax during the scan and not move around.  At the Vanderbilt University Medical Center, Versed was kept along with other highly-controlled drugs in a computerized medication dispenser.  The nurse went to the dispenser but, instead of Versed, she withdrew vecuronium, a powerful paralytic agent.  In order to withdraw the vecuronium, she had to override a number of safeties in the computerized dispenser.  Witnesses testified in the trial was that there were problems with the dispenser which required the nurses using it to routinely override its safety protocols.   The nurse administered the vecuronium to the patient and left the patient to await the scan.  When the transporter came to get the patient for the scan, she was brain dead.

The nurse was charged with two offenses.  The first was negligent homicide for administering the wrong medication.  The second was for gross neglect of a vulnerable adult for failing to monitor the effect of the medication on the patient.  The nurse admitted that she was distracted at the time of her mistake.

At least in part, our health care system relies on medical professionals to report mistakes, whether the mistake injures a patient or not.  Only by encouraging frank and honest reporting, can the system prevent future mistakes and learn from those that have already been made.  Despite its good intentions, the system already suffers from a culture of secrecy about medical errors.  Doctors and nurses who are afraid of being sued or of being the subject of medical or hospital discipline are already reluctant to report their own mistakes or those of other professionals.  Criminal prosecution of medical professionals is only going to make matters worse.

In addition to contributing to an even greater culture of secrecy and silence, criminal prosecutions are already causing some medical professionals to leave the profession altogether.  In their view, they do not get paid enough to run the risk of being charged with a crime, if someone is hurt on their watch or dies.  Even if they are able to successfully defend themselves in court, the legal fees alone may bankrupt them.

In my legal practice, I have seen far, far worse conduct than that for which this nurse was prosecuted.  I have seen impaired doctors injure their patients.  I have seen gross indifference to the well-being of the patient.  I have seen doctors and nurses blaming each other for careless mistakes.  What I have never seen, however, is someone prosecuted for the deaths or terrible injuries suffered by my clients, especially when, as here, the hospital had a major role in the injury.  It is already difficult to get a doctor to consent to a settlement in a medical malpractice case.  Fear of criminal prosecution will make settlement of meritorious cases even more difficult than it is today.  If anything could make an already bad system worse, adding the threat of criminal prosecution is probably it.

POST SCRIPT:  On May 13, 2022, the nurse was sentenced to three years probation.  If she satisfactorily completes her probation, her conviction will be expunged from her record.

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical malpractice cases, medical mistakes, Medical Negligence, Medication Errors, Nurses, Prescription Errors, Secrecy |

Murder, Malpractice or Compassionate Care?

April 18, 2022

A 46 year old critical care specialist is on trial in Ohio.  He is accused of deliberately overdosing critically ill patients with fatal amounts of the potent painkiller, Fentanyl.  He was originally charged with 25 deaths but the court threw out 11 of those deaths.  The trial has been going on for almost two months.

How to Handle Your Fear of Needles | Allure

In each of the 14 cases left, the patient was brought to the hospital in critical condition and was not expected to live.  The prosecution alleges that the doctor deliberately overdosed the patients in order to cause their deaths.  The doctor’s attorney claims the doctor was acting out of compassion and trying to relieve the terrible pain of his patients so they might pass away peacefully.  According to the prosecutor, even shortening a life by one day is enough to justify conviction.

The case raises thorny questions about ethical responsibilities of doctors dealing with end of life issues.  There is no protocol for determining the amount of Fentanyl to administer to a patient in extreme pain.  It is the responsibility of the treating physician to decide how much to order.  When making the decision, the doctor must walk a fine line.  She does not want to order too much but at the same time needs to order enough to reduce the patient’s pain to a comfortable level.  What is more important in the case of a terminally ill patient?  To be pain free for the last few days of life or to extend that life as long as possible, even if it means those last days are full of pain?  From whose point of view should these questions be answered?  From the point of view of the patient who just wants to be pain free or from the point of view of the patient’s family which may want the loved one to live as long as possible, regardless of how painful that may be for the family member?

Of course, the answers to these questions are complicated by the fact that the family members either are suing the hospital for the deaths of their loved ones or already have sued and collected.

End of life issues are never easy.  They are not easy for the patient leaving this life or for the family members being left behind, who often are concerned more with their own needs than with those of their dying loved one.  Don’t force your family to make these decisions without guidance.  Make a living will to let them know how you want to end your life or at least how you do not want to end it.

P.S.  After nearly a week of deliberations, the jury acquitted the defendant on all charges.

Posted in Doctors, Hospitals, Informed Consent, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, Medication Errors, Secrecy |