Medical Malpractice News and Views

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

The Coming (?) Telehealth Revolution.

April 19, 2021

The telehealth revolution is either coming or it is already here.  It depends on whom you ask.  Regardless of whom you ask, they will be quick to tell you that more is on the way.  As with any fast-growing field, there are many problems and many unanticipated consequences.

Our New Telehealth Services | Fenway Health: Health Care Is A Right, Not A Privilege.

A number of states changed their rules because of the Covid-19 pandemic to allow increased use of remote technology to deliver medical care.  The idea was that the pandemic was keeping many people at home, including those who needed medical care.  Even those who were willing to go out a little were reluctant to go to the doctor’s office.  Doctors needed to keep seeing patients but were reluctant to expose themselves and their staffs to infection.  Even in the absence of pandemic-related changes in behavior, there are many communities in which good healthcare is not regularly available.

The answer many states chose was to loosen the rules and to permit doctors and other healthcare providers to interact with patients who were sitting in front of their computers or looking at their phones from home.  The response was so strong and generally received so positively by the public that there is great pressure to make the changes permanent.

As those of you who are regular readers of this blog know, the availability and quality of healthcare in this country is largely driven by our old friend, money.  Residents of big cities get lots of hospitals and doctors.  Residents of small towns in the countryside get fewer doctors, fewer medical specialists and smaller hospitals that offer fewer services.

Not only are the best hospitals found in the big cities, most of the top doctors are found there too.  Small towns often get what is left when it comes to doctors and some can’t get any doctors at all.

Telehealth or telemedicine is supposed to be a cure for this disparity.  Everyone with a computer can have access to the best doctors.  If you need an operation, you may still have to go to the hospital but most other care can be delivered from long distance.

Money is also the root of many complaints about telehealth.  Doctors are territorial.  They want to protect their turf from interlopers.  They have often spent a lot of time building up their practices and cultivating referral sources among the other doctors in the region.  This goes out the window when someone from another city, or perhaps even from another state, can solicit their existing or prospective patients.

As with brick and mortar stores that have difficulty competing with on line sellers of the same product, local doctors who must maintain physical offices are at a financial disadvantage when competing with a doctor or provider who only has an on line presence.  The frenzy that accompanied on line sales is now beginning to envelop telehealth for all the same reasons.  There is money to be made.

The local doctors forced to compete with the on line providers complain that the on line providers have financial advantages, that they are not as well-regulated as local doctors and that they are siphoning off the best and most lucrative patients, which makes local medical care more expensive for those who continue to see the local doctors.  On the other hand, the on line providers claim that they are providing care to those who cannot get it under the existing system.  They claim to be serving the underserved or the forgotten and helping to solve the problem of a nationwide shortage of doctors.  This battle between well-financed doctors and technology start ups will be fought in the media and at the state legislatures for the foreseeable future.

The prospect of money, of course, attracts fraudsters.  Some are just looking for identities to steal.  Some are engaging in the same fraud we routinely see in Medicare cases; they are overcharging for services they actually provide and/or charging for services they never provided.  Some are taking money in return for providing non-existent access to vaccines or for phony Covid cures.

Every new technology is disruptive to one extent or another.  Telehealth is a good example of such disruption.  Be careful how you use telehealth while the kinks are being worked out.  For that matter, always be careful, even when it appears the kinks have been worked out.





Posted in Arizona Medical Board, Board Certification, Doctors, Fee for Service, Fraud, General Health, Health Care Costs, Hospitals, Medical Costs, medical ethics, Medicare, science news, Vaccines |

Small Town Hospitals And The Profit Motive.

April 19, 2021

If you live in a small town, you probably have a problem obtaining quality health care.  Big cities get the big hospitals and lots of doctors practicing every medical specialty you can think of.  Small towns get what is left.  They get a small hospital, if they get any hospital at all, and not very many doctors.  If you need specialty medical care and you live in a small town, you may have to go to the big city to get it.  These problems are baked into the system and are structural.  There is not much anyone can do about it.  Things get worse, however, when the local hospital gets purchased by a group looking to make as much money as possible.

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The Wall Street Journal runs some excellent stories about the business of health care.  One of their most recent had to do with the problems of a small town in Wyoming after a firm controlled by a private equity firm bought their town hospital and merged it with another one it owned in a town 30 miles away.

There is a substantial conflict between the goals of private equity and the goals of a small town hospital.  To a certain extent, this conflict exists in all hospital settings, even when the hospital is owned by a non-profit company, but they are most pronounced in small town hospitals owned or controlled by private equity.  Fully 24% of the hospitals in the United States are owned by for-profit investors.

The goal of private equity is to make as great a return on investment as possible.  Private equity often uses debt aggressively to finance dividends and frequently sells off assets to either finance dividends or to reduce debt.  Private equity is attracted to small, rural hospitals because it perceives there is the potential to make a lot of money.  If you have to go to a small town hospital, you don’t want it to be run by someone who is trying to make as much money as possible.  You want it run by someone whose primary goal is to provide the best health care possible and who is not concerned with making a profit.

Even if you do not have to go to the hospital, you have a stake in it.  If there is a hospital in your town, it is often a major force in the local economy.  It provides good quality jobs and its presence is attractive to local employers and their employees.   It is important to the community that the hospital remain open and in good functioning order.  Private equity, on the other hand, may, and often does, close hospitals that are not making enough money.  It cuts corners and scrimps where it can and sometimes even where it cannot, if it thinks it can get away with it.

When the only hospital around closes, it has a big impact on the town and its residents.  The jobs and economic activity associated with the hospital are lost.  People have to go further to get their health care.  The effect is not just economic, of course.  According to the Journal article, research has linked higher rates of mortality due to time-sensitive conditions, such as stroke and heart attack, to hospital closures.  No surprise there.  If you have a time-sensitive condition, the longer it takes to get you to a hospital, the less chance you have of surviving your illness.

The small Wyoming town, which is the subject of the Journal article, is trying to build a new hospital to compete with what is left of its old hospital.  The old hospital lost many services when it was merged with the hospital 30 miles away.  The private equity firm which controls the two hospitals is trying to protect its investment by opposing the new hospital.  It is lobbying Wyoming’s elected officials to oppose loans to the new hospital without which it cannot be built. It claims the new hospital will not replace the lost services and that the existing hospitals are doing a good job of serving their communities.

To be perfectly frank, we in the United States of America should not even be having this discussion.  We are having it because medicine is a big business in which even the “non-profit” companies are trying to make money.  As a result, we pay more per person for health care than any other developed nation and get less for our money than anyone else.  When measured by health outcomes, we do a poor job of providing care.  We have many citizens who are uninsured and cannot afford care.  They are forced to wait until they are really sick and then they show up at the emergency room, where the doctors are legally obligated to treat them.  It is long past time that we join the rest of the developed world and provide universal health care to our citizens.

Posted in Doctors, General Health, Health Care Costs, heart attack, Hospitals, Medical Costs, medical ethics, Stroke |

Your Medical Records Access Is Changing

April 12, 2021

You have a right to see your medical records.  Recent changes in the law and in federal regulations are increasing your rights in this area.  Know your rights and take advantage of them.

Check Your Medical Records For Dangerous Errors | Kaiser Health News

If you have received medical treatment in the past couple of years, you have probably been invited to register to use a patient portal by your provider.  These portals have many uses.  You can schedule appointments, exchange messages with your provider and review your records.  These are all important and helpful actions and you should be sure to register and take advantage of them.

Perhaps the most revolutionary of these actions is the opportunity to see your medical records almost as soon as they are created.  You get to see what the doctor or other provider has written about you and about your visit.  New regulations, which just took effect earlier this month, prohibit most blocking of access to a patient’s records and require that you be provided electronic access to eight types of medical records.  These categories include histories and physicals, which are important in setting the stage for your treatment and identifying your chief complaint, consultant notes, procedure notes, imaging reports, laboratory reports, pathology reports and office notes of the provider.

As I have written before and as anyone who has looked at their medical records can attest, medical records often contain inaccuracies.  Somebody gets something wrong.  It may be a part of the history of your illness that you correctly described to the provider but the provider misunderstood or misheard.  It may be a diagnosis that someone erroneously made.  It may an incorrectly recorded test result.  In what can be a devastating error, the record may actually refer to a completely different person, who may have the same or a similar name.  Whatever it may be, once it is in your records, it tends to stay there and to be repeated over and over until it takes on the character of undeniable truth.

The almost real time access to your records provided by the new regulations gives you the opportunity to nip these errors in the bud, or to at least correct them before they can cause you actual harm.  You can ask that the errors be removed and the record corrected.  The provider, as a matter of law, has 60 days in which to respond to your request.  If the provider denies your request, they must notify you in writing and keep your request and their denial as part of your medical records.  It is important, therefore, that you put some thought into your request and make it clear and complete.  Be sure to carefully describe the record you contend is in error and what is needed by way of correction.

The world around us is changing fast.  Sometimes those changes are to our detriment.  Sometimes, as with the requirement for electronic access to your medical records, the change is a good one.  Take advantage of this change to review your records before some mistake you didn’t even know was there bites you on the rear end.

Posted in Doctors, electronic medical records, health, Hospitals, medical charts, medical errors, medical mistakes |

Medication Errors Are A Persistent Problem.

April 05, 2021

Medication errors can and do kill and injure patients in hospitals, outpatient clinics and as a result of doctor ordered prescriptions.  There are literally thousands of medications, which can be prescribed for patient use.  Many have confusing names.  Many have names which are very similar to those of other medications.  Many come in various dosage strengths.  In short, there are lots of ways to make mistakes in medication administration.

Why prescription drugs in the US cost so much

People prescribe medications, fill prescriptions, issue medications in hospitals and deliver them to patients and people make mistakes.  The sheer number of medications, their similarities and their varying doses make human error in medication administration almost a certainty.

Medication errors can occur in local pharmacies where we get our prescriptions filled.  I have represented patients, and sometimes the surviving family members of patients, who have been the victims of pharmacy malpractice.  One case involved a woman who was receiving an opioid medication and the pharmacy accidentally gave her a pill with two times the correct amount of the opioid.  She died of an overdose when she took what the pharmacy gave her.  I have represented patients in cases where the pharmacy dispensed a drug with a similar name but which was intended for a completely different condition.  Fortunately, that patient survived.

Although it is easier said than done, always check your prescription when you get home before taking the medication.  Is it the correct medication?  Is it the dose the doctor ordered?  Is it a medication for a condition you have?  Today, anyone with access to the internet can look up a medication and pretty quickly see if it is a medication for a condition they have or not.  This is a big advance over past years and one we should take advantage of.

Those who study medication errors say that the least effective way to address medication errors is through education.  There is just too much information for the human brain to comprehend.  It is too easy to forget or to be distracted or to be overwhelmed.   They say the best way to prevent medication errors is through the use of technology.

Computers may not be smarter than we are but once properly programmed, they never forget, never get distracted and never get overwhelmed.

Computers can be programmed to recognize when a patient has been given a drug which will combine with another drug they are already taking.  Sometimes, the two drugs will address the same condition and their effects will be added to each other resulting in too much medication.  Sometimes, the two drugs interact in other ways which is damaging to the patient.

Infusion pumps are smart today as well.  They can be programmed not to permit overdoses and to correct other errors in administration.  The big problem appears to be getting hospitals to use the best available pumps with the best available safeguards.

As is always the case, human communication remains a fertile area for mistakes, which may affect medications.  The first malpractice case I was ever involved with had to do with a misplaced decimal point.  The order was for .05 mg of a highly toxic medication.  The nurse at the hospital misread the order and administered .5 mg, 10 times the intended dose.  The infant patient suffered a devastating brain injury.  A computer would have recognized the dangerous dose.  The misplaced or missing decimal point is a frequent cause of medication errors.

Poor handwriting accounts for many errors.  Doctors are no better than the rest of us when it comes to poor handwriting.  The difference is my poor handwriting is unlikely to cause serious injury.

Errors also arise from the habit of doctors to use symbols or abbreviations.  At least one study found that 5% of medication errors were the result of using an abbreviation, which was misinterpreted by the person actually administering the medication.  Leaders in healthcare have been encouraging the banning of abbreviations for years, with only mixed results.

The conclusion is that medication errors are common but that technology has the ability to make them less frequent.  There is little you can do when you are in the hospital to guard against medication errors.  Do, however, make sure when the come to give you a medication that they have the right person and that it is a medication you are supposed to be taking.

Posted in Doctors, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical mistakes, Medication Errors, Pharmacies, Pharmacy Malpractice |

More Hospital Hide The Ball.

March 29, 2021

After years of fighting the proposal, hospitals in the United States were finally required to disclose their prices for the various services they provide.  The battle was long, hard and expensive.  Unsurprisingly, many hospitals and hospital chains are still in full resistance mode.

Patient Perception of Hospital Affiliations Influences Care

The disclosure rule, which took effect on January 1, requires hospitals to disclose, not only their “sticker” price for various procedures and services, but also the discounts they give to insurance companies or health plans as well as what they charge uninsured patients.  The data are to be displayed prominently on a public web site.  The data is to be easily accessible and without barriers.

For years, hospitals have treated the discounts they give to health insurers as trade secrets.  They correctly realize that disclosure of these discounts will reduce their bargaining power the next time they sit down with an insurance company to negotiate rates.  This is exactly why the federal government now requires that these discounts be disclosed along with the “sticker” prices.  A free market cannot operate if prices are hidden.  There can be no competition under those circumstances.

The Wall Street Journal consistently does an excellent job reporting on the medical industry.  Its reporters had a good story last week on the steps many hospitals and hospital chains were taking to avoid having their prices out where the public could find them.  The Journal found that these hospitals were listing their prices all right but were coding their web sites so that the results were not discoverable on the kind of Google or other search the average person would do.  To get to the prices, you typically had to click through multiple screens.  At the very least, these actions appeared to run contrary to the spirit of the required “easy” accessibility and absence of barriers.

When questioned by the Journal, some hospitals claimed a mistake in coding and removed the code which made the pages undiscoverable.  Other hospitals claimed that they were not trying to hide anything but felt that the public needed to see other information before seeing the prices in order to give the prices “context.”  Still others appear to be waiting to see how serious the federal government is about enforcing these requirements before making their prices easy to find.

None of this should be a surprise to anyone who watches the medical industry.  For at least the last ten years, hospital chains have been getting larger and accruing greater bargaining power.  In addition to buying other hospitals or building more of their own, many chains have been purchasing the medical practices of the doctors who send their patients to the hospitals to be treated.  This has the effect of locking in the flow of patients to the hospital.

The statistics are clear that the more hospital consolidation that exists in a city or region, the greater the rise in prices for the services these hospitals offer.  The hospital industry claims that these consolidations produce cost savings.  That claim may very well be true, but, if it is, the savings are going directly to the bottom line of the hospitals; they are not being seen or enjoyed by the public.

Posted in Doctors, Fee for Service, Health Care Costs, Health Insurers, Hospitals, Medical Costs |

Hospitals Continue to Hide the Ball.

March 22, 2021

As anyone who observes our health care delivery system in action knows, hospitals are hotbeds of medical errors.  It is not all their fault but it is a fact.  There are so many people participating in patient care.  There are so many medications being ordered and delivered.  There is so much communication between providers, which can lead to misunderstandings.  As the old proverb states, “To err is human.”  We are all humans and we all make mistakes.  However, rather than admit their mistakes, hospitals actively hide them.

CAN YOU KEEP A SECRET? – The Law Press Organisation, University of Ibadan

It is easy to understand why hospitals want to hide evidence of their many mistakes.  Among the reasons are fear of being sued, reputation concerns, licensure problems and potential staff problems.  Hospitals like to claim that the public would not understand error reports and might conclude a hospital was careless when nothing could be further from the truth.  However, regardless of how much it might benefit a hospital to hide its mistakes, the act of hiding them is deeply unfair to the public and increases the likelihood that these mistakes will be made again and again.

As a condition of participating in the Medicare system, hospitals are required to track and report adverse patient events.  These are events in the care process which cause patient harm.  Almost half the states require similar reporting of adverse events.  Arizona is not one of them.  The Centers for Medicare and Medicaid have found that, even though required to report adverse patient events, hospitals routinely underreport them.  Even when reports are made, they are kept hidden from the public.  The bottom line is that the public, which should be able to know about mistakes and demand improvement, is kept in the dark.  Nothing to see here folks.

My practice involves representing people injured by medical negligence.  Often that medical negligence occurs in a hospital.  It is extremely rare that a hospital will admit that the negligence of one of its employees caused the injury suffered by my client.  Instead, the hospital will deny any responsibility, even when they have investigated the event and concluded in an internal report that employees made a medical mistake and caused the injury.

The key words here are “internal report.”  I never get to see this report, even though it relates to the exact event at issue.  No one in the public ever gets to see it.  I don’t even get to see the statements given by the hospital employees explaining how the event occurred.  The law allows the hospital to deny fault, even when it has already concluded exactly the opposite.  The law allows the hospital employees to tell me a different story about the event than they told the hospital investigators.

Bad things happen to patients on a regular basis in even the best hospitals in Arizona.  Judging from the information available to the public, you would never know it.  This is wrong and we should demand better from our hospitals.


Posted in disclosure of medical mistakes, Fraud, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, Medicare, Nurses, plaintiff, Secrecy |

Tort Reform Fails to Deliver.

March 15, 2021

A recurring theme in American political life is the insistence that consumers are the victims of rapacious medical malpractice lawyers, who sue at the drop of a hat and whose actions raise health care costs for all of the rest of us.  Some politicians, mostly Republicans, hold this belief as a matter of faith, even though they have never looked to see whether there is any truth to it or not.  There is not and here is an impressive study which shows that tort reform is just another way of making life easier and richer for malpractice insurance companies and the medical business.

More Tort Reform for Mississippi personal injury and medical malpracitce lawsuits? Thank you sir may I have another?

The theory behind tort reform is that (1) There is actually very little medical malpractice; (2) Doctors are afraid of being unfairly sued; (3) Doctors practice defensive medicine because of this legitimate fear; (4) Defensive medicine raises the costs of health care for everyone; (5) If we limited medical malpractice suits and limited the amounts that juries could award, doctors would stop practicing defensive medicine and health care costs would go down.  Turns out every one of these “facts” is untrue.

Study after study has shown that thousands and thousands of Americans are the victims of malpractice every year.  Many die as a result.  The most surprising finding of these studies is how few of the victims sue over the damage done to them.  The reasons are many, including the high cost of bringing a malpractice suit and the high regard juries have for physicians, which translates into trial wins for doctors and hospitals even when the evidence of malpractice is strong.

The number of malpractice suits has been going down across the country for years.  A study in JAMA Internal Medicine found that filings decreased by over 55% between 1992 and 2014.  It would seem hard to work up a legitimate fear of being sued with cases declining like that.

Dr. Tom Price, a former Secretary of Health and Human Services, claimed the annual cost of defensive medicine to be a staggering $650 billion each year.  That amount is over 25% of all heathcare spending in the country.   The true amount is hard to determine because defensive medicine is both unethical and fraudulent and doctors are reluctant to admit that they are actually doing it and billing for it.  Although hard to actually determine, Dr. Price’s figure cannot possibly be accurate.  The actual number must be many magnitudes less than he claims.

In 2003, Texas succumbed to the siren song of tort reform and severely restricted medical malpractice suits.  The results have been disappointing to those who believed this would do anything to reduce health care costs for the general public.  According to the study of health care costs in Texas, there were a couple of years when costs increased and then they leveled off.  The anticipated surge in savings never materialized.  So why not?  Why aren’t Texans saving some of those hundreds of billions of dollars that Dr. Price claims are being spent on defensive medicine?

There are two pretty good reasons and they both have to do with our old friend money.  The first is that doctors never were practicing much defensive medicine in the first place.  They just liked to claim that they were the victims of a bad system and that the system forced them to order all these tests and procedures.  The second reason is that Texas doctors have gotten used to the income they receive from defensive medicine.  Now, instead of doing tests and procedures to keep from being sued, they are doing them to keep the money flowing.

Texans who were victims of medical malpractice lost their rights in 2003.  They were sacrificed to produce savings for everyone else.  The promised savings never materialized.  The money that would and should have been paid to the Texans who were hurt by malpractice went instead into the pockets of the doctors, the hospitals and their insurance companies.  The doctors, hospitals and their insurance companies have highly paid lobbyists in Austin.  Texans should not count on their rights being restored to them any time soon.  They should also not count on seeing any cost savings from these “reforms.”

Posted in Defensive Medicine, Doctors, Fraud, Health Care Costs, Health Insurers, Hospital Negligence, Hospitals, Lawsuits, Malpractice caps, Malpractice costs, Medical Costs, medical errors, medical ethics, Medical Malpractice, medical malpractice cases, medical malpractice damages caps, Medical Negligence, tort reform |

Nurses Have It Rough.

March 08, 2021

Nurses are critically important health care workers.  They do most of the work of providing health care but get little of the rewards.  They work long and often inconvenient hours for not a lot of pay.  They are exposed to the worst infections we suffer and sometimes die as a result.  Perhaps it is not surprising, given their circumstances, that they occasionally make mistakes that kill or injure patients.

Discover the 16 Highest Paid Nursing Jobs in 2020 | Provo

Nurses are the backbone of the health care industry in this country.  They are probably its most essential workers.  They are the health care providers we see most often in doctors’ offices or clinics or in the hospital.  They are both male and female.  For all their differences, they share one trait.  They want to do a good job and help people.  Sometimes, however, the circumstances in which they are placed, primarily by hospitals, lead them into situations where mistakes are made.

Over the years that I have represented patients injured by medical malpractice, many of my cases have involved hospital care.  When there is negligent care is a hospital, it almost invariably involves nurses.  This is not surprising for a number of reasons.  In the first place, nurses provide most of the care so it only makes sense from a purely statistical point of view that they would be involved, if there is malpractice in a hospital setting.

A second reason, and one that I see often, is that nurses are below doctors on the totem pole of both society and health care.  Doctors are in charge of the care the patient receives in the hospital.  They decide what should be done and issue orders.  They rely on the nurses to carry out those orders.  They also rely on the nurses to be their eyes and ears and to keep them apprised of what is happening with the patient.  When things go south at a time when the doctor is not at the bedside, the doctor often blames the nurse for not keeping him or her adequately informed.  I have seen many cases where the nurse testifies she told the doctor about the developing problem only to have the doctor deny it.  The doctor usually wins this particular credibility contest.

Nurses are also victims of the complexity of the modern hospital.  The old adage that “Too many cooks spoil the broth” applies in spades to today’s hospital.  There are doctors for this and doctors for that.  Every doctor writes orders.  On a good day, the orders do not contradict each other.  On a bad day, . . . .   Complicated equipment must be mastered and employed.  Hospital policies and procedures must be learned and followed and they are often complicated, poorly written and difficult to understand.  Patients must be handed off from nurse to nurse at every shift change.  Is it any wonder that a nurse sometimes makes a mistake?

I am afraid that the future holds little promise of a better situation for the nurse.  Hospitals and modern medicine are not going to become less complex.  Doctors are not going to change their ways.   The best nurses can do is absorb as much information as possible and keep doing the best they can.

As patients, we should be grateful to nurses for the hard work they do but at the same time recognize the problems they face and be alert for the possibility of a mistake.  Just because a nurse says it doesn’t make it so.  Be polite but firm and make sure you get the care you deserve.

Posted in Doctors, Hospital Negligence, Hospitals, Medical Malpractice, medical malpractice lawsuits, medical mistakes, Medical Negligence, Nurses |

What Are Statutes of Limitation?

March 01, 2021

It seems like every week or so we get a call from a potential client who reports that she was the victim of medical malpractice.  When we begin to ask for more details, it turns out the malpractice occurred more than two years ago.  This is a problem and here is why.

Every state has established time limits on when a lawsuit can be brought.  The idea is that the longer a person waits to bring suit, the dimmer memories have become and the harder it is for the defendant to find the necessary witnesses and adequately defend himself.  The amount of time usually varies depending on the type of suit involved.

Arizona is no exception.  For our purposes, the statute of limitations for medical malpractice cases is two years.  The statutory period begins to run when there has been malpractice which has caused an injury to the patient.  There are some exceptions, however.

One of the most significant of the exceptions is for minors.  The statute of limitations does not begin to “run” for a minor, until she or he reaches the age of majority, which in Arizona is 18 years of age.  If a minor is injured when she is 5, she has until she turns 20 to bring suit.

During the time the patient is a minor, the time period is “tolled.”  This means that it does not “run” during the tolling period.  The statute is also “tolled” for other periods of disability, such as lack of mental competence.

When a child is severely injured, the law sometimes recognizes that the child’s parents may have also suffered an injury resulting from the injury to the child.  Until a few years ago, one such injury was the child’s medical bills, for which the parents were responsible.  While the child had until she turned 20 to sue, if the parents wanted to recover the medical bills, they had to file suit within the first two years after the injury.  Now, however, either the child or the parents, but not both, can sue for the medical bills.

When a child is injured, the injury may be so severe that it significantly interferes with the parent-child relationship.  When this occurs, Arizona recognizes a claim for loss of “consortium” with the child.  In other words, the parents may recover for the damage done to the relationship they had with their child.  However, since this cause of action belongs to the parents, they must file suit within the first two years after the injury to the child and, since the law does not permit separate suits by the parent and the child, the child must also sue within the first two years after the injury or the parents lose their right to sue.

Another major exception to the two year limitation period occurs when the patient had no reason to know that he was the victim of malpractice.  This can occur, for example, when a surgical instrument is left inside the patient or when the patient has no reason to know that a bad result was caused by medical negligence.  However, once a reasonable person would or should suspect that the bad result was caused by medical negligence, the statutory period begins to run.

Not all medical malpractice injuries are governed by the two year period.   There is a much shorter period when the malpractice was caused by someone employed by the state or a subdivision of the state.  In those cases, the patient has only 180 days in which to file a Notice of Claim arising out of the injury and to serve it on the appropriate governmental agencies describing the injury, the negligence, the damages suffered and the amount they would accept in settlement .  If the Notice of Claim does not result in a prompt settlement, suit must be filed within one year of the date of the injury.  Notices of claim are highly technical and should not be attempted by a lay person.

When someone comes to see me, I need to do substantial investigation to determine if it is a case I can take.  I need to interview the patient, obtain and review the medical records and consult with expert witnesses.  All this usually takes at least 90 days so if a patient comes to see me a month before the end of the two year period, I will not have enough time to do my investigation.

The takeaway from all this is to see a qualified lawyer as soon as possible, if you think you may have been the victim of malpractice.  The lawyer may tell you that it is too soon to tell if you have a claim but at least you won’t be too late.

Posted in Lawsuits, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical malpractice lawyers, Medical Negligence, medical negligence lawyers, Statute of Limitations |

Defensive Medicine is a Fraud.

February 22, 2021

Defensive medicine is the name doctors give to the tests or treatment they admit are unnecessary but they order anyway out of what they claim is fear of being sued for malpractice.  It is an unethical fraud and the doctors who claim to be driven by fear of being sued are lying to themselves as well as to the public.

Gary Ross on Twitter: "The cost of defensive medicine… "

The concept of defensive medicine arose in the 1970’s when the number of medical malpractice suits began to rise precipitously.  As malpractice insurance premiums began to rise, often for reasons having little to do with successful malpractice suits, medical practitioners panicked.  The sky was falling.  In order to reduce the likelihood of being sued, they began to order pretty much every conceivable test.  Times have changed.  Despite the fact that the number of malpractice suits has been dropping for decades, doctors continue to practice defensive medicine at high rates.

The ordering of every conceivable test has had unintended consequences.  In the first place, when it was rare to order every conceivable test, doctors could legitimately claim that the standard of care did not require all of these tests be ordered.  A breach of the standard of care is what a patient must prove to be successful in a malpractice case.  The standard of care, which is almost never in writing, is what a reasonable and prudent health care provider in the same specialty would do under the same or similar circumstances.  After nearly 50 years of ordering every conceivable test, that practice has now become the standard of care.  Doctors have trapped themselves.  They know what they are doing is of little or no benefit to their patients but they just can’t stop.

Another unintended consequence is that ordering every conceivable test harms patients.  Not only does it burden the health care system and their patients with unnecessary bills and charges, it puts patient health at risk.  Even the most carefully performed test exposes the patient to some risk.  A blood draw opens the door to infection.  An x-ray increases the risk of excessive radiation exposure.

Additionally, every test creates the risk of a mistaken interpretation.  The chest x-ray may show a cancer that goes unnoticed.  A blood test may show an alarming increase in an enzyme indicating the presence of disease that is overlooked by the doctor.  The most common allegation of malpractice is the missed diagnosis.  The more tests that are performed, the more likely it is that something will show up and be missed and that the doctor will be sued for missing the diagnosis.

Of course, not all test results are conclusive.  That density on the chest x-ray may be cancer or it may just be a shadow caused by the way the patient was positioned.  We can’t be too careful so now we have to do follow up studies and may even have to do a biopsy.  More risk to the patient.

Even when the test result is clear, it can be wrong.  It may be a false negative, which may expose the doctor to liability for a missed diagnosis.  Alternatively, the test may come back with a false positive, as many do.  This means that our patient, who is healthy, now ends up being treated for the disease the unnecessary test incorrectly said she has.   It is never good to be treated for a disease you don’t have.  Unfortunately, unnecessary treatment is a common result of the practice of defensive medicine.

As noted above, the risk of suit has been declining for decades but the use of defensive medicine persists and persists at high levels.  A survey found that 77% percent of doctors reported that they would stop practicing defensive medicine, if only they were given protection against malpractice suits.  This response shows that doctors are misleading themselves about defensive medicine.  A number of states have given substantial protections to doctors to either reduce the number of malpractice suits or to limit damages that patients can recover.  Studies have shown no substantial reduction in the practice of defensive medicine in those states.

It is also important to remember that those increased billings due to defensive medicine are being paid to doctors, hospitals and laboratories.  Many labs are owned by doctors.  Stopping defensive medicine would reduce the income of the doctors who practice it.  The more defensive medicine they practice, the greater the income loss would be were defensive medicine to go away.  Understandably, it is easier to blame lawyers and malpractice suits for defensive medicine than it is to admit that you have been fleecing the public all along.

Doctors, who profess to live by the Hippocratic promise to “first do no harm,” should look at the harm to their patients caused by their practice of defensive medicine and give it up.  On the other hand, it is easier and more profitable to just keep claiming that defensive medicine is all the fault of the lawyers and the legal system.  Doctors are not likely to give up defensive medicine without a fight.

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