Medical Malpractice News and Views

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

Damages: The Third and Final Element of a Medical Malpractice Case

September 20, 2021

Over the past two weeks, I have written about the first two required elements of a medical malpractice case:  Standard of Care and Causation.  There is a final requirement.  It is that the breach of the standard of care must cause damages.  Damages is another area in which the Arizona legislature, prohibited by the Arizona Constitution from capping damages, has used workarounds to limit what negligent healthcare providers must pay.

How Legal Compensation Works (Damages, Settlements, More)

Damages come in two basic flavors.  The first is special damages.  These are amounts which can be the subject of actual computation.  Some obvious examples in medical malpractice cases are medical bills, lost income, and loss of earning capacity.

The second type of damages we encounter in medical malpractice cases is general damages.  These are the damages that are not subject to computation.  Pain, emotional suffering, and disability are the most obvious examples of general damages.

The purpose of both of these types of damages is to compensate the patient for the harm that has been done.  This is why these damages are called compensatory damages.  They try to put the patient in the position she or he would have been in had there been no medical malpractice.  Of course, money is an imperfect way to put the patient back where they would have been but for the malpractice, but money is the only tool the law has.

There is a third type of damages, which is only rarely seen in medical malpractice cases.  It is punitive damages.  These are damages intended to punish a defendant or to make an example of a defendant.  They are reserved for situations in which the defendant’s conduct was intentional or, even if not intentional, so reckless and likely to cause serious harm that it is worthy of punishment.  Punitive damages are an evolving area of the law.  The United States Supreme Court has been placing limits on the size of these awards and requiring that they bear a close percentage relationship to the compensatory damages.

Many states have responded to claims that there is a malpractice crisis by limiting the amounts juries can award to patients injured by medical malpractice.  These limitations are almost always on the amount juries can award for non-economic damages, such as pain and suffering.  Once they are in place, it is almost impossible to get them changed.  In 1975, California placed a $250,000 limit on non-economic damages arising out of medical malpractice.  That was 45 years ago.  In spite of the erosion of the purchasing power of the dollar over the last 45 years, that limit has never changed.  The medical industry got its victory and holds on to it like a junkyard dog holds on to a bone.

The Arizona Constitution does not permit the legislature to limit damages in any way so our good friends out there who want to do a favor for the medical industry have had to resort to other means of making it hard on injured patients.  One way they have seized upon is to permit juries to be told that the injured patient has had some or all of her medical bills paid by insurance or that she has disability insurance or even life insurance in a death case.  This cannot happen in any other type of personal injury case.  It has had the anticipated effect of causing the jury to think that the victim has not really been harmed that much.  This in turn has resulted in more wins at trial for doctors and hospitals and, in those cases where the jury does find for the patient, to reduce the amount of the award.

As you can see from this discussion, damages are an important part of a medical malpractice case.  If the damages are not very great or if the jury believes that the patient has recovered from the injury, the jury will be much more comfortable in finding in favor of the doctor or hospital.  It is when the jury believes that the patient needs its help in order to go forward in life, that there is the greatest likelihood of a verdict in favor of the patient.  Sadly, this means that those patients who were injured, but not very badly, or who went through hell but are better now, are usually turned away by the jury.  Only those patients who suffered a catastrophic injury have a reasonable chance at winning their case at trial.  There has to be a better way.


Posted in Doctors, Health Care Costs, Hospital Negligence, Hospitals, Lawsuits, Malpractice caps, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice damages caps, medical malpractice lawsuits, Medical Negligence, plaintiff, tort reform |

The Role of Causation in Medical Malpractice Cases

September 13, 2021

Last week I wrote about the standard of care.  Standard of care is the first element a patient must prove to win a medical malpractice case.  The second element of proof is that the breach of the standard of care “caused” an injury.  Causation requires, not only that the breach of the standard of care cause the injury, but that the injury would not have occurred in the absence of the breach.

Causation in Statistics: Hill's Criteria - Statistics By Jim

Causation in medical malpractice cases is a difficult element of proof.  One of the reasons it is difficult is the complexity involved in medicine.  Things are not always crystal clear.  When sued, doctors or other health care provider often offer up a number of explanations for the injury the patient suffered.

One of the usual claims is that the injury was just a bad result.  No one in medicine guarantees a good result.  In fact, before you undergo a procedure, you will be asked to sign a consent form that lists many, many things that can go wrong during or after the procedure.  These things are often referred to as “risks of the procedure.”  Sometimes the injury you suffer may be on that list.  However, just because an injury is one that can occur, even if no one is careless, does not necessarily mean that in your case it wasn’t the result of a breach of the standard of care.

Even if your injury is not on the list of “risks of the procedure” the defendant health care provider often will argue about exactly what the injury was and why it happened.  In death cases, for example, in the absence of an autopsy, there will almost always be disagreement over the cause of death.  It doesn’t matter what the death certificate says, as that it not binding on the parties.  You say your loved one died because of a mistake the surgeon made during the surgery.  They come back and claim that your loved one died of a heart attack that was unrelated to the surgery.  When there has been no autopsy, there is no good way to prove that the death was due to a surgical mistake.

Another problem with causation arises out of the fact that the reason you are seeing a doctor or other health care provider in the first place is that you are sick or have a condition that requires medical treatment.  A causation argument I often see is that what happened to you was unavoidable or had already occurred before you even reached the doctor.  I see this often in missed cancer diagnosis cases.  My client has been diagnosed with lung cancer that has spread throughout the body.  We look at the past medical records and find that the cancer appears on an x-ray that was done three years ago but no one noticed the tumor at that time.  Our position is that, had the lung cancer been noticed and treated at that time, it would not have spread.  The argument from the defense is that it had already spread by the time of the x-ray.  Alternatively, they argue that the cancer was a very aggressive form that was going to spread no matter what treatment was given.  They say it was inevitable that the cancer would spread throughout the patient’s body.

Even if everyone is in agreement about the nature of the injury, the provider defendant will argue that it may have been the result of five or ten different causes that are not related to the provider’s care.  For example, the stroke the patient suffered after surgery, which we claim was the result of a lack of oxygen during surgery, they claim was the result of blood clots in the arteries of the neck.

These causation issues are always hard fought.  They always involve dueling expert witnesses.  If you do not have a lawyer who understands the medicine and is able to effectively cross-examine the expert witnesses for the defense, you will have no chance of winning your case.


Posted in Autopsy, Blood Clots, Cancer, Doctors, heart attack, Hospital Negligence, Hospitals, Informed Consent, Lawsuits, Lung Cancer, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice lawyers, medical mistakes, Medical Negligence, Misdiagnosis, plaintiff, Surgical Errors, trial |

What Exactly Is Medical Malpractice?

September 06, 2021

Everybody talks about medical malpractice but when you ask them about it, you find people have different ideas about what it really is.  Given its legal definition, this difference of opinion is not surprising.  Depending on whom you ask, you will get different definitions of medical malpractice.

What is Malpractice?

If you ask a lay person what they think malpractice is, you will likely hear that it occurs when a doctor or nurse makes a mistake.  Allthough that is a good answer, it has a number of problems.  In the first place, it doesn’t take into account whether the mistake causes an injury or not.  At least from a legal perspective, a mistake that does not cause an injury is not medical malpractice, at least not medical malpractice you can sue over.  It also doesn’t tell us what a mistake is or how to know when one occurs.

If you ask a doctor what she or he thinks is medical malpractice, you may hear that anything they do will be called malpractice by some crooked lawyer trying to make a buck.  From their point of view, doctors may make mistakes from time to time in trying to help people but these are not really malpractice, or at least not the kind of mistake that should give rise to a lawsuit.

If you ask a lawyer, you may be told that medical malpractice is conduct which is “below the standard of care” and which causes an injury that would not have occurred in the absence of the conduct.  The conduct may consist of either action or inaction.  The “standard of care” is the tricky part of this definition and one of the reasons medical malpractice cases are so hard to win.

The “standard of care” is what a reasonable and prudent healthcare provider would do in the same or similar circumstances.  What constitutes the standard of care is almost never written down.  It is what the healthcare providers say it is and it is always changing as medicine changes and doctors learn more and change the way they do things.

If there are two options a provider has when faced with a problem and half the providers would go with the first option and the other half with the second option, by definition, choosing either option cannot be below the standard of care.  In fact, if there is an option which is favored by even a minority of providers, that minority option is acceptable and choosing it is not below the standard of care.

When I bring a lawsuit against a doctor, I can count on the doctor saying two things:  (1)  “Whatever I did or didn’t do was in compliance with the standard of care”; and (2) “Whatever happened to you had either already happened by the time I cared for you or was going to happen no matter what I did.”

The doctor always says that she or he complied with the standard of care.  They get to tell the jury that they complied and get to explain why they did what they did and how it was be best possible choice under the circumstances.  This will always be an extremely well-rehearsed answer they have worked out with their defense lawyer.  They also get to bring in another doctor in the same specialty to agree that what they did was in compliance with the standard of care.  As the attorney for the patient, I also get to bring to court a doctor in the same specialty who will explain to the jury that what the defendant doctor did was below the standard of care.

For those of you who have trouble counting, I will add it up for you.  The defendant doctor gets two doctors to say that what she or he did was in compliance with the standard of care while the patient gets only one.  Two to one are not good odds when the question is what would a reasonable and prudent doctor do under the same or similar circumstances.  It makes it really easy for the jury to conclude that the two doctors who say there was no violation of the standard of care are right and the patient’s doctor-witness is wrong.

So in the final, legal analysis, medical malpractice is what the doctors say it is and what the jury says it is.  Nothing else really matters.


Posted in Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical malpractice cases, medical malpractice lawsuits, medical mistakes, Medical Negligence, plaintiff, trial, Verdicts |

Medical Malpractice Insurance Rates And Entitled Doctors

August 30, 2021

Recently, my daughter, who teaches high school art, asked me why, if malpractice cases are so hard to win, do doctors continue to complain about high malpractice insurance rates.  I thought that was a good question that deserved to be discussed on this blog.  The answer, as with so many things, is that they don’t know what they are talking about.

Which Urban Legends Are True? | The Muse

This is not a criticism of doctors alone.  Everyone believes things that are not true.  We have heard them so often and believed them for so long that we just assume they must be true and never stop to examine whether they are true or not.  Some examples.  The great wall of China is the only man-made creation that can be seen from space.  Wrong.  Abner Doubleday invented baseball.  Wrong.  Twinkies stay edible for years.  Wrong.  The same is true of malpractice insurance rates.

Like all other forms of insurance, medical malpractice insurance rates depend on three main factors:  (1) What is the risk being insured? (2) How much can the insurance company make by investing the premiums? and (3) What is the competition in the insurance market?

Insurance companies hire people called underwriters to estimate how much they must collect as premiums in order to be able to pay out claims in the future and still make money.  In medical malpractice insurance, the underwriters look at how likely it is that a claim will be made, how much it will cost to defend a claim, if made, how likely it is that the claimant will win in court, and, if the claimant wins, how much will he win.  As I have written before, doctors and hospitals win 85-90% of all of the cases that get tried and that figure applies pretty much throughout the country.  One caveat, however, is that the strongest cases of malpractice are usually settled before trial.  Even with that caveat, doctors and hospitals win most of the cases, even when the facts for the patient are strong.

Malpractice lawyers who represent patients are not stupid or self-destructive.  They pay attention to win rates and to what juries are doing.   Twenty years ago, things were better for patients who were victims of malpractice.  If you had a good case, you could probably win it at trial.  That is no longer true.  As a result, competent malpractice lawyers have to be more careful in the cases they accept.  If a case is not a strong one with high dollar damages, they won’t take it.  This has resulted in a steady decline in the number of malpractice cases being filed in court over the last 20 years.  In 2019, a grand total of 373 medical malpractice cases were filed in all of the courts of Arizona.  In 2019, Arizona had a population of 7,279,000.  Not exactly an overwhelming number of suits for a state that large.  So when the insurance underwriters look at the risk of being sued and of having to pay out, the chances of being successfully sued are low.

At the same time, the stock market has been doing well.  That means that an insurance company, which collected premiums in 2018, was able to invest them and make a good return on the money.  Any claims would likely not be paid until 2020 or later so there was a good chance for the money to grow.  There is a strong correlation between stock market collapses and increases in malpractice and other insurance premiums.  When the insurance companies lose big in the stock market, they must raise premiums to recoup their losses.

Insurance company competition also plays a role.  In states with little competition, you can expect rates to be higher than in states with strong competition.

I looked at historical rates for Arizona, California, Texas and New York for the years 2000, 2010 and 2021.  In analyzing these figures, you need to remember that inflation has been eating away at the purchasing power of the dollar during those 21 years.  It takes $1.60 to buy today what could be bought with $1.00 in 2000.

In each of the states I looked at, premiums went up from 2000 to 2010 before coming back down to their current levels.  In Arizona, for example, an internal medicine physician paid a little less than $9,000 for malpractice insurance for the year 2000, $15,000 in 2010 and $10,000 this year.  In real dollars, that internal medicine physician is paying substantially less this year than she did in 21 years ago.  Different specialties pay different rates as they have different risks but the same pattern exists.  All of the specialties I reviewed are paying less today in real dollars than in 2000.

Notwithstanding that juries are treating doctors and hospitals well and that their malpractice insurance bills are actually going down in real dollars, doctors continue to believe that the system is stacked against them by lawyers and that they are being unfairly put upon.  Medical malpractice is a fact of life.  I see it every day.  Even though only a few cases alleging medical malpractice are ever filed, the doctors who are sued overwhelmingly believe they did nothing wrong and should not have been sued.  It is hard to believe that there is lots of malpractice but the lawyers are consistently suing the wrong doctors.  A few doctors, but only a few, recognize that there is a lot of malpractice out there and that patients who have been injured by it should be compensated for what happened to them.  Until doctors get over this entitled attitude and take off the blinders, our medical legal system will remain one in which no one is satisfied and justice is only rarely done.




Posted in disclosure of medical mistakes, Doctors, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, plaintiff |

The Good Bacteria

August 23, 2021

Last week I wrote about some of the dangers of overuse and misuse of antibiotics: they create resistance among the disease causing bacteria and make antibiotics less effective in saving lives.  There is an equally important second reason, however.  The overuse and misuse of antibiotics kill and damage the good bacteria upon which we depend for our health.

Gut health affected by teams of bacteria, not individual species

Not all bacteria are bad for us.  We have evolved over millions of years alongside bacteria.  Some of them have taken up residence inside us.  We benefit from them and we have given them a home.  We have literally billions of bacteria living inside us at any given moment.  The bacteria in our bodies help us digest our food, regulate our immune system, protect against other bacteria that cause disease, and produce vitamins including B vitamins B12, thiamine and riboflavin, and Vitamin K, which is needed for blood coagulation.  They are even believed to affect brain function and our emotions.  They are part of a larger system, known as the microbiome, which includes bacteria, fungi, protozoa and bits of viruses, that we have picked up over the past few million years.

The existence of the microbiome was unknown until the 1990’s.  This is one of the reasons we still know so little about it.  One thing we do know, however, is that we need a healthy microbiome.  Without it, we are susceptible to illness and a poorly functioning immune system.  We need a healthy and diverse microbiome.  The fewer the types of microbes in our guts, the poorer job they do of carrying out their functions.  Processed foods and foods with lots of sugars are believed to reduce the level of diversity.

One thing that certainly reduces microbiome diversity is the use of antibiotics.  They kill good bacteria at the same time that they kill the bad ones.  In some cases, they are far more effective against the good bacteria than they are against the bad bacteria.  Treatments for fungal diseases, for example, are well-known to kill beneficial gut bacteria.  You may notice a correlation between taking antibiotics and the development of diarrhea.  Your body is trying to tell you something.  Our western way of life, with its emphasis on cleanliness, deprives our bodies of the environment they evolved to exploit.  It is no wonder that many illnesses are found far more often in developed western societies than in the less-developed world, which is more like the world our ancestors faced.

Many scientists are worried that behaviors we have adopted to fight the coronavirus pandemic will have the effect of reducing microbiome diversity.  The increased use of disinfectants and social distancing, for example, reduce our exposure to new bacteria.  Exposure to new bacteria may be an essential part of a healthy microbiome.  As the article to which I just linked suggests, we may need to learn to live with germs again, if we want to be our healthiest selves.

Without exposure to pathogens, our immune systems tend to go haywire.  As the old expression goes, “Idle hands are the devil’s workshop.”  An immune system with no real, outside enemies to fight may invent enemies.  The malfunctioning immune system attacks organs in its own body.  This is one of the theories used to explain the rise of autoimmune diseases in western societies.

Our bodies developed to operate at maximum efficiency in a certain environment.  That environment did not feature highly processed foods or widespread use of disinfectants.  If we don’t return to at least some of the old ways, we will find ourselves getting sick from the very things we hoped would protect us from illness.



Posted in antibiotic resistant bacteria, health, Health Insurers, healthy living, Obesity, obesity epidemic, science news, Type 1 Diabetes |

The Danger of Antibiotic Resistant Bacteria

August 16, 2021

We are surrounded by life forms that are constantly mutating and changing.  This is particularly true of bacteria.  Because they have such short life spans, they can evolve quickly to meet threats.  That is exactly what they have done to meet one of their biggest threats: the antibiotics we use to try and kill them.

E. coli bacteria engineered to eat carbon dioxide

Most of the people alive today never lived in a world without powerful antibiotics.  Penicillin was discovered in 1928 and its use ushered in what came to be known as the antibiotic revolution.  Before the development of antibiotics, people died in the millions from bacterial infections, such as pneumonia, smallpox, cholera, diphtheria, typhoid fever, plague, tuberculosis, typhus, syphilis.  Average life expectancy was only 47 years.  Penicillin and other powerful antibiotics changed all that but the bacteria fought back and we have helped them develop defenses to antibiotics.

When antibiotics are used to treat an infection, they sometimes do not kill all the bacteria.  Some may survive because they have evolved a defense against the antibiotic.  They have become resistant.  As they pass that resistance on to their offspring, the antibiotic to which they are resistant becomes less and less effective.

While this development of resistance is a natural process, we help it along by misusing antibiotics in humans and animals.  When we get sick or our children have a cough, we rush to the doctor’s office and get a prescription for an antibiotic.  The more often we or our children take an antibiotic, the faster resistance develops.

The problem is made even worse when people do not use all of the antibiotic ordered for them.  Stopping the antibiotic early almost guarantees that some of the bacteria will survive and may pass resistance to their offspring.

Hospitals are a prime breeding ground for antibiotic resistant bacteria.  Bacteria live on many surfaces in the hospital.  They are constantly exposed to low levels of antibiotics and may quickly develop resistance.  They infect people whose immune systems are already compromised and pass from patient to patient.

Livestock producers routinely administer antibiotics to their herds and flocks, not to treat infections, but to prevent them from occurring in the first place or to promote growth.  This common use of antibiotics accelerates the pace of developing resistance.

It has been stated that antibiotic resistance is one of the greatest dangers to global health we face today.  The day is not far off when doctors won’t have effective antibiotics to give us when we become ill with diseases we can successfully treat today.  We are facing a return to the bad old days before antibiotics.  We are facing a return to a litany of deadly diseases.

What can we do to at least slow this process?  Here are some suggestions from the World Health Organization:

  • Only use antibiotics when prescribed by a certified health professional.
  • Never demand antibiotics if your health worker says you don’t need them.
  • Always follow your health worker’s advice when using antibiotics.
  • Never share or use leftover antibiotics.
  • Prevent infections by regularly washing hands, preparing food hygienically, avoiding close contact with sick people, practicing safer sex, and keeping vaccinations up to date.
  • Prepare food hygienically, following the WHO Five Keys to Safer Food (keep clean, separate raw and cooked, cook thoroughly, keep food at safe temperatures, use safe water and raw materials) and choose foods that have been produced without the use of antibiotics for growth promotion or disease prevention in healthy animals.

Urge your elected officials to take antibiotic resistance seriously and to create legislation that slows its advance.  Do your part to put off the day when doctors may be powerless against antibiotic resistant infections.

Posted in antibiotic resistant bacteria, General Health, health, healthy living, Infection, Sepsis |

We Are At The Bottom. Again. Still.

August 09, 2021

USA!  USA!  We’re Number –  Eleven?

The Commonwealth Fund was founded in 1918 to create better, more accessible health care systems.  Since 2004, it has been conducting studies of the health care systems of the richest eleven countries in the world and ranking them on various measures such as access to health care, outcomes, administrative efficiency, and care process, which includes things such as preventative care and patient engagement.  In every one of the seven studies the Fund has conducted since 2004, the United States has finished dead last overall among the eleven countries surveyed.  This has been consistently so despite the fact that we spend more per person on health care than any one of the other eleven richest countries.  We are also the only one of the eleven that does not provide universal health care to its citizens.  There is probably a connection there.

We rank at the bottom, for example, on access to care.  Our health insurance system does not provide enough money, even for those whom it covers, to give them access to all the care they need.  Of course, matters are far worse for the uninsured.  All across the economic spectrum, Americans have to forego medical treatment they need and would otherwise obtain, if they could afford it or if it were not so expensive.

We rank poorly on infant mortality, maternal mortality, life expectancy at age 60 and deaths which were preventable with access to care.  We are at the bottom on administrative efficiency because of all the time health care providers must spend filling out forms for insurance companies and fighting with them.  Not surprisingly, we are also at the bottom on the equity of our system.

The countries that do better than we are distinguished by four features, according to the Fund:  1) they provide for universal health care coverage and remove barriers to access; 2) they invest in primary health care systems to assure that primary care is available to everyone regardless of income or location; 3) they reduce administrative burdens on health care providers; and 4) they invest in social services, especially for children and working-age adults.

Instead of universal health care, we have a patchwork system of private insurers and public insurance that covers only some of our people.  The private companies providing health insurance siphon massive amounts of money out of the health care system.  it has often been observed that they are more interested in finding ways to avoid paying for your health care than they are in actually paying for it.  They participate along with the hospital chains and the drug companies in a mutual “I’ll scratch your back, if you scratch mine” exercise by which they all get rich at the expense of the public.  Unsurprisingly, any time there is a push to create universal health care in this country, the big three get together to torpedo it.  They make a lot of money and do not want to upset the applecart.

The way to better, more equitable heath care for everyone is clear.  The other ten rich countries show us the way.  All that is lacking it the political will.  Given the massive wealth of the drug companies, the health insurance companies, and the hospital chains and their willingness to use that wealth to fund political campaigns, it won’t be anytime soon that Americans begin to receive the health care they deserve.

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

Physician Conflicts of Interest

August 02, 2021

Physicians occupy a special place in our society.  They are respected and honored.  They are often well-compensated for their efforts.  We trust our doctors.  Very few patients ever think that the doctor who is recommending surgery or a particular treatment or medication may have a conflict of interest, an ulterior motive for doing so.  The evidence suggests that perhaps we should be less trusting and a little more skeptical.

Doctor Putting Money In Pocket On White Background, Closeup... Stock Photo,  Picture And Royalty Free Image. Image 99246384.

Medicine is big business and is becoming bigger all the time.  Most doctors leave medical school with substantial student debt.  They have to earn enough money to care for their families and to pay off that debt.  Today, there are far more ways for doctors to earn additional income than in the past.  The evidence is all around us that decisions doctors make are being affected by their own financial interests.  Let’s talk specifics.

Hospital chains are getting larger and larger.  One of the ways in which they are growing is through the purchase of physician practices.  The doctors at your cardiologist’s office may actually be working for the hospital now.  They are no longer independent.  They are employees.  The hospital chain purchased their practice and agreed to employ them in the belief that the doctors would send their patients to the hospital or otherwise generate income for the hospital chain.  Often, the doctor has express or implied income goals.  She or he has to send so many patients to the hospital or their income will be reduced.  I can promise you that you won’t be able to see a copy of the contract between your doctor and the hospital chain but it may have a big effect on the treatment your doctor gives you or the recommendations the doctor makes.

Another influence on physician decision making comes from the pharmaceutical industry.  Your doctor may receive gifts from a drug company.  She may be invited to travel to a resort area on the drug company’s dime to attend a medical meeting.  She may be asked to participate in a study of the drug company’s new products.  She may be asked to speak at medical meetings on behalf of the drug company.  Studies have shown that even small gifts can affect the prescribing patterns of doctors.

If you think doctors would never allow themselves to be used like this, think again.  You need look no further than the Insys case.  Insys, which was based in Arizona, marketed an extremely powerful opiod for cancer patients.  It was so powerful and so addictive that the FDA limited its use to patients with terminal cancer and intractable pain.  Insys expanded this limited market by bribing doctors to prescribe it to patients who were less sick and to fake the records to make it look as though the patients were eligible.  It paid doctors for increasing dosages for their patients as well as for writing new prescriptions.  The Feds caught on and prosecuted the company, its officers and some of the doctors who accepted bribes.

One form of prostate cancer treatment involves the use of an expensive machine to deliver a tightly focused radiation beam.  Researchers have found that doctors who own one of these expensive machines and who make money from its use are much more likely to recommend this form of treatment to their patients than are doctors who do not own a machine.  This is not a coincidence.

Some orthopedic surgeons own companies that buy the surgical hardware they place in their patients.  Their company then sells the hardware to the hospitals at which they practice and the surgeon places the hardware in the patient.  These hardware companies can earn many thousands of dollars a year for their surgeon owners.  They also tempt the surgeon to perform unnecessary surgery or to use more hardware than necessary or to use hardware from the companies that offer her the best prices and opportunities for profit.  Researchers have found that surgeons who own these companies use more hardware than surgeons who do not own a hardware company.  This is not a coincidence.

The bottom line, and it is the bottom line at work here, is that doctors make money when they treat you.  They do not make money, if they do not treat you.  When you walk into a doctor’s office, you are a customer and the doctor is in the business of selling medical services to customers like you.  Think about this transaction, and it is a “transaction,” as you would any other transaction in which someone is trying to sell you something.  Don’t leave your common sense at the door.  Be cautious.  Do your homework beforehand.  Ask questions.  Remember, just because a doctor says it does not make it true.



Posted in Doctors, drug companies, Fee for Service, Fraud, health, Health Care Costs, Hip Replacement, Hospitals, joint replacement, Medical Devices, medical ethics, Orthopedics, PODS, Secrecy |

The Never Event.

July 26, 2021

In 2001, the concept of “never events” was introduced.  The idea was that a never event was one which was identifiable, caused serious injury or death and was almost always preventable.  The original list has grown and there are now 29 recognized never events.

The Correct Use of Jamais in French

Never events are grouped into seven categories.

  • Surgical or procedural events
  • Product or device events
  • Patient protection events
  • Care management events
  • Environmental events
  • Radiologic events
  • Criminal events

Examples of surgical events are operations on the wrong patient, on the wrong body part, right patient but wrong surgery or leaving a surgical instrument or foreign object behind in the patient’s body.

Product or device events might arise from an air embolism, a product being used in an inappropriate manner or death or serious injury due to contaminated drugs or products.

Patient protection events include discharging a compromised patient to an unauthorized person, patient disappearance and patient suicide.

Care management events are a big category.  Examples of care management events are medication errors (wrong patient, wrong dose, wrong medication, etc.), maternal death in a low risk delivery, death of a neonate in the hospital after a low risk delivery, unsafe administration of blood products, death or serious injury due to failure to communicate test results, and, significantly, serious pressure ulcers which develop after admission to a health care facility.

Environmental events include electric shocks, mistakes involving the delivery of oxygen, burns and death or serious injury resulting from bed rails or patient restraints.

Radiologic events involve any injury arising out of the presence of metal in an MRI area.

Criminal events speak for themselves.  Examples are patient assaults, patient abduction, injury due to a person impersonating a physician or other health care provider and sexual abuse of a patient.

A never event may be a rare occurrence at a particular hospital or care facility but, when they occur, they usually cause great harm to the patient.  According to recent reports, almost three out of four never events result in death.  While never events may be rare at a given facility, there are so many facilities in the United States that never events occur frequently.  According to some reports, as many as 4,000 surgical never events occur each year.

There has been a lot of pressure on hospitals and other care facilities to eliminate never events.  For example, Medicare and now many health insurers are refusing to pay bills for treatment associated with a never event.  Some states are requiring reporting of all never events and are making those reports public to encourage facilities to do a better job.

So far, nothing has worked and never events continue to occur.  If you or a loved one become the victim of a never event, you need to seek prompt legal assistance to protect your rights.



Posted in Birth Injuries, blood infections, disclosure of medical mistakes, Health Care Costs, Health Insurers, Hospital Negligence, Hospitals, Medical Devices, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medicare, Medication Errors, never events, Nurses, Pharmacy Malpractice, Prescription Errors, retained surgical instruments, Secrecy, Surgical Errors |

The Dishonest Hospital

July 19, 2021

I came across an interesting story recently that resonated with me because I have seen this in my practice.  A Kentucky woman who noticed a lump in her breast went to have it checked out at a local hospital.  The hospital performed a mammogram and then sent her a letter.  The letter stated that there was “no evidence of cancer” seen on the mammogram.  The woman, whose mother had died of breast cancer, was greatly relieved.  She should not have been.

AI helps radiologists improve accuracy in breast cancer detection with lesser recalls | Healthcare IT News

When the lump in her breast continued to grow, her concern returned.  After 10 months of pain, during which the lump refused to respond to treatment, she sought a second opinion.  Her new doctors reviewed the mammogram films from the hospital and told her that there was evidence of breast cancer and that she should have been sent for a biopsy of the lump.  They told her it might be too late now as the cancer had metastasized to her lymph nodes and bones.  She was a Stage 4 breast cancer patient, the stage with the poorest prognosis for survival.

The woman could not understand how the hospital could have made this mistake.  When suit was filed, she learned for the first time that the hospital had a second letter in her chart, which it claimed to have sent her shortly after the first.  The second letter told the woman that there had been a clerical error, which resulted in the first letter being sent.  The purpose of the second letter was to advise her of the error and to inform her that there were abnormalities in the mammogram films and that she needed to see someone to get a biopsy.  The woman never received the second letter.  She and her lawyers contend that the second letter was fabricated by the hospital after suit was filed in an attempt to cover up for their mistake in failing to alert the woman to the abnormalities in the mammogram.

The problem of the altered medical record is not a new problem.  I saw it in the first malpractice case I ever tried.  The defendant doctor, who had performed a procedure for which he did not have patient consent, went back, put the consent form in the typewriter and added language to cover what he had done.  The attempt was ridiculously amateur.  The new language did not line up with the old and the type was darker than the original.  It was an easy forgery to spot and prove.  Similar changes made to written records after the fact were often proved by showing the new material looked different than the original or was squeezed into a small opening in the original record.

No one puts a form back in the typewriter today or takes a pen to the original record to add some language.  Today’s medical records are electronic.  They are created on computer and stored on computer.  With a few keystrokes, new records can be created and old records can be changed, often with no one the wiser.

We still catch these cheats sometimes, but not always.  Before we file suit, we always get a complete copy of the patient’s records.  Sometimes the patient himself or herself gets the records.  Later, after suit is filed, we receive a copy of the records from the defendant.  Sometimes when we compare what the patient received before suit was filed with the records received after suit was filed, we find changes have been made.  This is solid gold when it happens because the defendant has been caught forging the records, which is as good as an admission of fault.  Try as they might to explain that it was all very innocent, it is a real problem for the defendant.

There is another way to catch these cheats.  All electronic medical record keeping systems have what is called an “audit trail.”  This is a computer record showing every time someone opened the patient’s chart, who it was, when it was and what they did to the chart.  It is not part of the record the patient receives and it is difficult to get the hospital to allow us to see the audit trail.  Unless we have some good reason to suspect that the record has been altered, we don’t ask for or look at the audit trail.

In the case of the Kentucky woman with breast cancer, her lawyers hired a computer records expert and got the court to order that the hospital give him supervised access to the patient’s electronic medical record.  He found that on a number of occasions just after suit was filed, someone had gone into the patient’s records, had deleted information and had created two new letters advising the patient to get a biopsy due to abnormalities on the mammogram.  Having been caught virtually red-handed, the hospital was left with no defense other than to claim that its record keeping system at the time was “glitchy” and the audit trail was unreliable.  The issue has yet to be resolved by the court, so stay tuned.

Most health care providers are honest but when there has been malpractice, the temptation is to hide the evidence.  There is often a lot of money at stake and the reputation of the provider can take a hit if malpractice is proven.  I have to be constantly on the alert for the possibility that the record has been altered.  When you get your records, you should be careful too.


Posted in disclosure of medical mistakes, Doctors, electronic medical records, Fraud, Hospital Negligence, Hospitals, Lawsuits, Mammogram, medical charts, medical ethics, Medical Malpractice, Medical Negligence, Secrecy |