Medical Malpractice News and Views

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

Arkansas Supreme Court Tosses Out “Tort Reform” Ballot Measure.

October 19, 2018

The business and medical communities have been busy over the years pushing laws they claim will end a flood of frivolous lawsuits and unleash a wave of economic growth.  Most of these laws have been aimed primarily at medical malpractice cases.  A feature common to all these laws is a cap on the amount of non-economic damages an injured patient or her family can recover.  They may have other provisions as well which further restrict the power of the jury to fully compensate the patient or to limit the amount of money the patient can pay an attorney to represent her.  When the state constitution stands in the way of these laws, as it does in Arizona, they try to get the constitution amended to take away the right of the citizens to be fully compensated when they are injured by medical negligence.  Arkansas is the latest state where these deep pockets have attempted to get rid of constitutional provisions protecting injured persons.  The Arkansas Supreme Court yesterday ruled the ballot measure that would have amended the state constitution to itself be unconstitutional.

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I have to give these interests their due.  They have been incredibly effective in convincing the public that the civil justice system is broken, that juries give away too much money and, on top of that, give it to people who don’t deserve it.  These carefully cultivated attitudes on the part of the public extend to all kinds of cases in which an individual has been harmed by negligence and comes to court seeking compensation but are particularly pronounced when it comes to malpractice cases.  The effect of these attitudes shows up in the number of cases where the jury either returns a verdict for the defendant or awards only a small amount to the injured person.

The business and medical interests are helped by the fact that these cases in which someone is sent home with nothing or very little are never the ones that make the headlines.  Only the rare case in which there has been a large award makes the news.  When the public only hears about large verdicts against doctors or hospitals, they can be forgiven for thinking those verdicts are the norm.

The business and medical interests count on the gullibility of the public.  They count on the public not to do any fact checking and to simply accept the proposition that frivolous lawsuits are flooding the courts and driving doctors out of the profession.  That reliance is critical because, were members of the public to look at the facts, they would see that there is no truth to these claims.

There is no flood of frivolous malpractice lawsuits in Arizona or pretty much any other state.  In a study which appeared in the Journal of the American Medical Association (JAMA), the authors found that between 1992 and 2014, the rate of paid claims against doctors fell by over 50%.  That is a huge drop over a period when the public was being told that claims were rising sharply.

The ballot measure the Arkansas Supreme Court tossed would also have limited the amount of fees an injured patient could pay a lawyer to represent them.  When these limitations are pushed, they are always described as a patient protection measure to prevent patients from being taken advantage of by unscrupulous lawyers.  In fact their real purpose is to further limit the number of people who have cases which are large enough to bring to court by making their cases so unattractive that no qualified lawyer can take them.  Of course there is no limit on the amount a hospital or doctor can pay their lawyers, only a limit on what patients can pay.  When there is a limit on the percentage a lawyer can be paid, the value of the patient’s claim must be that much larger in order for a qualified lawyer to be able to receive a fee that reflects the risks she takes when accepting one of these cases.  If your case is not big enough, no matter how clear the negligence of the doctor or hospital that injured you, you can’t get a lawyer and you can’t get justice.

Kudos to the Arkansas Supreme Court for tossing this ballot measure.   May other supreme courts have the nerve to protect patients in their states and declare their similar laws to be unconstitutional.

Posted in Doctors, Finding a Medical Malpractice Lawyer, Hospital Negligence, Hospitals, Malpractice caps, Malpractice costs, Medical Costs, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, plaintiff, tort reform, Verdicts |

I’ll Take Lobbying for $2 Billion, Alex.

October 15, 2018

The answer is, “They spent $2.3 billion on lobbying over the last 20 years.”  If you answered, “The pharmaceutical lobby,” you won.  Actually, you didn’t win.  You lost because all that drug money flowing into Washington did exactly what it was intended to do: keep drug prices in the United States higher than anywhere else in the world.

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Examples of drug company disregard for fairness or for common decency are found in the news on a daily basis.  A drug company in 2015 gained control of a 62-year-old drug for treating parasitic infections and promptly raised the price from $13.50 per pill to $750.  That is an increase of 5,450%.  Another drug company purchased the patent on an important drug for treating drug-resistant tuberculosis and raised the price for 30 pills from $500 to $10,800, a 2,000% increase.  Even generic drugs are not immune from this behavior.  Still another drug company bought the right to produce two generic heart drugs.  This company was much more considerate of the public good as it only raised the prices of these generic medicines by 535% and 212%.  With generic drugs there can be no argument that the company is just trying to recoup the costs of development.  The only justification for raising prices like this is greed.

As I noted last week in the context of life-saving insulin, these high prices often prevent Americans from getting the medications they need.  A recent survey by the Kaiser Family Foundation found that 20% of Americans have difficulty affording their prescriptions and 24% have failed to fill a prescription, cut pills in half or skipped doses to try and save money.

One of the reasons drugs for older Americans cost so much is that Congress, that is your United States Congress, has passed a law forbidding Medicare from negotiating price cuts from the pharmaceutical industry.  That lobbying money was well-spent.  It would have been a bargain had they spent twice as much.

The New York Times just reported that there is a new drug for treating HIV.  If taken, the drug keeps the HIV from making the patient sick and keeps the HIV from spreading to others who might come into sexual contact with the patient.  These are important things.  The drug costs $75 a year in Africa.  Essentially the same drug costs $39,000 a year in the United States.  There are some predictable results.  Fewer that half of the HIV patients living in the United States take medications which keep their HIV under control and non-contagious.  This is a lower percentage than in Zimbabwe, Kenya and Malawi.  What is going on when African states, which are much poorer than we, do a better job of keeping their citizens alive and healthy than we do?

Stop being played for suckers and do something, people.

Posted in drug companies, General Health, Health Care Costs, Medical Costs, medical ethics, Medicare |

Big Pharma and You.

October 08, 2018

Forgive me for getting on my insulin soapbox again.  Because of my young grandson’s Type 1 diabetes, I am very interested in all things Type 1 related.  I am especially interested in what it takes to keep him alive.  Every day he has his blood tested multiple times.  He needs alcohol wipes, test strips and lancets for the blood tests.  He wears a glucose monitor, which must be changed out every few days.  He wears an infusion pump.  The pump has an infusion site which needs to be changed out every few days.  He needs insulin to fill the pump.  He needs glucagon for emergencies when he goes really low.  He needs juice boxes and glucose pills for when he just goes a little low.

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All in all, it costs over $25,000 per year in diabetes supplies to keep my grandson alive.  Here is a blog post by a woman (God bless her) with two Type 1 children.  One of her children costs about $40,000 per year to keep alive while the other is a relative bargain at only about $30,000 per year.

About $1,000 a month of the costs for a Type 1 diabetic is for insulin alone.  Without regular insulin injections, a Type 1 diabetic will die.  If he or she skimps on insulin because she wants to buy food, the resultant high blood sugars will likely cause blindness, nerve damage, possible amputations, heart disease, kidney disease and the list goes on and on.  When the effects of uncontrolled diabetes get really bad, we taxpayers pick up the tab for treating the patient.

There are only a few insulin makers in the world.  In the United States, they are allowed to charge what the market will bear.  Here is a story about “Jane” who illegally buys her insulin from Canada.  In the United States, her insulin costs $450 for a 10 ml vial.  She needs about 6 vials a month to stay alive.  When she buys illegally from Canada, the cost is $21 per vial.  We pay more for insulin and other life-saving drugs than any other country in the world.  Why do our elected leaders allow this disgrace to continue?  Well, the obvious answer is money in the form of campaign donations and lobbying efforts.

On a regular basis the big pharmaceutical companies that manufacture insulin change the formulation of the product.  The “new and improved” insulin is priced higher than the “old” insulin.  The manufacturers then stop producing the “old” insulin.  There is simply no way to know whether the cost increases associated with the “new and improved” insulin are justified or whether diabetics would be better off with the old formulation at a more affordable price.  This issue is a common one as Big Pharma rolls out new formulations of many medications for which they can obtain patent protection.  Setting aside the fact that we are charged more than anyone else in the world, are we being sold a bill of goods when we are told that what we are now getting is “new and improved?”

People should not die because they don’t have health insurance.  People should not die in the greatest country in the world because they cannot afford the insulin necessary to keep them alive.  Big Pharma should not be able to raise prices ever higher for life-saving medicines that are available more cheaply everywhere else in the world.  It is no coincidence that as the cost of insulin has gone up hundreds of percent, the profits of the large drug companies that manufacture it and the related products that keep diabetics alive have gone up by hundreds of percent as well.

Tell your Congressperson and Senators that enough is enough.  It is time to force Big Pharma to treat Americans at least as well as they treat everyone else in the world.


Posted in drug companies, General Health, Health Care Costs, Health Insurers, Medical Costs, Medical Devices, Type 1 Diabetes |

Power Morcellators Revisited

October 01, 2018

I have written in the past about power morcellators and the harm they have caused patients.  I have links here, here and here.  Despite their risks, power morcellators continue to be used by surgeons for minimally invasive gynecological surgery.  In this post, I will discuss some of the pros and cons of their use and why they continue to be used despite the risks they pose.

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Let’s start with the reason power morcellators were developed in the first place.  In the old days, uterine surgery meant an open laparotomy.  The surgeon had to cut open the uterus and operate under direct vision; there was no other way.  Then came minimally invasive surgery or laparoscopy.  In minimally invasive uterine surgery, a hole or holes are made in the abdomen and instruments are inserted into the uterine cavity.  Gas is used to inflate the cavity.  A camera is inserted as well and the surgeon manipulates the instruments in the cavity to perform the procedure.  Minimally invasive surgery has a number of advantages over an open laparotomy.  Among other things it is less traumatic for the patient, the recovery time is less, there is less scarring and fewer complications.

Sometimes the uterine procedure involves the removal of tissue, such as uterine fibroids.  Often this tissue is too large to be removed through the small openings being used for the laparoscopy.  One solution is to cut the tissue into pieces small enough to be removed through the holes.  This is time consuming and often difficult.  This is the problem power morcellators were designed to solve.  The tip of the morcellator is inserted into one of the holes and a blade is slid out from the tip.  The blade spins and chews up the tissue much the way a blender does.  Then the uterus is washed out and the chewed up tissue comes out with the irrigation fluid.

Normally, all this goes well.  The problem arises when the patient has unknown uterine cancer.  One or more of the uterine fibroids may be cancerous, for example.  The process of chewing up the cancerous tissue spreads it throughout the abdominal cavity and makes a bad situation much worse.  Doctors say the cancer has been upstaged.  In other words, the staging of the cancer just got worse.

Morcellators were used for many years before the problem of cancer spreading gained enough attention that the FDA took action.  The FDA issued a directive that all power morcellators have a prominent warning on them about the risk of spreading cancer.  The warning stated that the use of a power morcellator was contraindicated in women who had suspected uterine cancer and in older women, who were more at risk for uterine cancers.  The FDA also directed that women undergoing procedures in which power morcellators were to be used be advised of the risks associated with their use.  Following the FDA’s action, the use of power morcellators fell but many surgeons continued to use them.  The controversy continues.

In defense of the power morcellator, the manufacturers and the surgeons who use them argue that the incidence of unknown uterine cancers in younger women of childbearing age is very low.  Accordingly, the risk that cancer will be spread is very low.  They also argue that just the process of entering the uterus creates a risk of spreading any cancerous cells which might be present, even if a power morcellator is not used.  Lastly, they point out that returning to open laparotomies will expose women to more risks than do power morcellators.  They argue that more women will be injured by the use of open laparotomies than would ever be injured through the use of a power morcellator.

A number of surgeons and companies have tried to reduce the risk of power morcellation by designing bags which can be inserted through one of the operative openings into the uterine cavity.  The surgeon places the uterine tissue in the bag and introduces the morcellator into the bag to chew up the tissue.  In theory, the use of the bag keeps the pieces of potentially cancerous tissue contained and the bag is then removed through one of the holes being used for the procedure.  It is still not clear exactly how effective the use of these containers is in keeping any unknown cancer from spreading.

It looks as though this issue will continue to inspire discussion and attempts to prevent the spread of unknown cancers.  For those of you who are undergoing a laparoscopic uterine procedure, make sure you discuss with your surgeon whether he or she intends to use power morcellation and what are the risks and benefits as they apply to your particular situation.  As always, be an informed consumer and good luck.




Posted in Cancer, Doctors, hysterectomy, Informed Consent, Medical Devices, medical ethics, Medical Malpractice, medical research, Power Morcellators |

Secret Conflicts of Interest

September 24, 2018

By now I am sure it is common knowledge that doctors are often paid by drug companies and by the manufacturers of medical devices.  There is a strong correlation between the amount of a company’s drugs a doctor prescribes and the amount he or she receives from the drug company.  The more you prescribe, the more you usually get paid.  Similarly, those who use the most devices from a manufacturer receive the most payments.  Doctors typically feel no great urgency to inform their patients that they may be receiving what some would call a “kickback” for prescribing a medicine or a device for the patient.  These payments raise questions of medical secrecy, ethics and conflicts of interest.

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Similar issues arise when a doctor writes an article for a medical journal.  These articles are used to announce medical advances, medical discoveries, and the results of studies.  They are an important source of information for doctors about news which may affect their practices and their patients.  Virtually all medical journals require that authors disclose any conflicts of interest they may have so that readers can take those potential conflicts into account in assessing the weight to give to the article.  Turns out many authors do not disclose their conflicts.

In a recent article in the online version of JAMA Surgery, a team of researchers compared public data about drug company and device manufacturer payments with conflict disclosures in articles written by doctors who had received these payments.  The researchers identified the top 100 recipients of payments, looked for articles they had written in medical journals and then checked to see if their payments had been disclosed.  They discovered that the payments were reported only about 1/3 of the time.

The payments in question were not small.  For calendar year 2015, the top 100 recipients received a total of almost $12,500,000.  The average payments received by each of them was $95,000.

The researchers hypothesized that the failure to disclose may have resulted from a conclusion by the author that the payments did not create a conflict of interest for the article in question.  Of course, the authors may have been wrong about the existence of a conflict or may simply not have wanted the payments to be disclosed.  Better that all payments be disclosed and let the readers decide if there is a conflict or not.  For that reason, the researchers propose a uniform conflict policy for all medical journals regardless of whether the author believes the payments to be relevant to the article or not.

Over and over again we see the pernicious effects of secrecy and lack of transparency in all aspects of the delivery of medical care.  Malpractice is hidden; bad doctors are hidden; costs of medical treatment are hidden.  One thing that is certain is that secrecy and lack of transparency do not benefit patients or the community as a whole.  Secrecy is used to make it harder for patients and others to know what is going on and to make decisions accordingly.  As long as hospitals and doctors run the system, there will be little change.


Posted in disclosure of medical mistakes, Doctors, drug companies, Health Care Costs, Hospital Negligence, Hospitals, Medical Devices, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, medical research, science news, Secrecy |

Finding the Right Hospital

September 17, 2018

Hospitals vary greatly in terms of the quality of their care.  In some hospitals infection rates are low and few patients need to be readmitted after discharge.  Exactly the opposite is true for some other hospitals.  You do not want to be a patient at the hospitals with the poor record.  How to get the important information about a hospital is a thorny issue.

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State laws do not require hospitals to report all of the information you as a potential patient would like to know.  Some states require reports to the state health department about certain events, such as highly contagious diseases, for example, but often that information is not available to the general public.  Other helpful information, if required to be reported at all, is similarly hidden from view.

The federal government, on the other hand, requires certain information be reported to it concerning Medicare patients.  It makes this information available to the public on its web site, which enables patients to make general comparisons of hospitals.  Here is a link to the Hospital Compare web site home.  Unfortunately, the federal government does not require hospitals to report on patients who are privately insured or who pay cash.  Congress could require this information but the hospital industry, with its strong lobby, has prevented such legislation.

As with many other aspects of our lives, there are on line companies that would like to help us.  In 2007, the medical journal JAMA published a comparison of six hospital comparison web sites:  Medicare’s site linked above, the Joint Commission on Accreditation of Healthcare Organizations’s survey, the Leapfrog Group and three proprietary for profit sites whose identity JAMA did not disclose.  The conclusion of the authors was that there was still, in 2007, a long way to go in creating an effective comparison site.

I took a look at the Leapfrog Group’s web site.  The group asks hospitals to voluntarily disclose information about areas of patient interest such as infection rates, services available, medication errors, complications, etc.  Here is a link to its compare page.   I looked at its comparison page for data on Phoenix area hospitals and found that some major players, such as Banner Health, elected not to participate.  This makes the comparison page less valuable as some of the Banner hospitals are very good ones I would consider if in need and for which I would like to see some data.

In any event, some data is better than no data and a good consumer should look for all available data before making a decision as important as where to be hospitalized for almost any medical procedure.

One of the especially good points made by the JAMA article was the need to involve the surgeon in any discussion about the relative merits of the hospitals under consideration for a surgical procedure.

Good luck with that surgery.



Posted in General Health, health, Hospitals, Medicare, Medication Errors, never events, Nurses, Secrecy |

Some Proof of the Existence of Defensive Medicine.

September 10, 2018

John and I have written about defensive medicine on many occasions in the past.  Here is a link and here is another.  It is our belief that claims by the medical profession about the amount of defensive medicine and its cost are overblown.

Doctors and their backers in the fight to limit your rights in the event of medical malpractice argue that much of what doctors do is in the nature of defensive medicine.  They claim that these are tests and procedures that they would not order were they not afraid that they might get sued for failing to order them.  One of the medical industry’s top allies in Congress has gone on record claiming that the annual cost of defensive medicine is $650 billion.  This amount is 26% of the cost of all health care delivered in the United States in a year.  That claim is outlandish and clearly false.

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Claims by the medical profession that it is being forced to practice defensive medicine are suspect for a number of reasons.  In the first place, doctors and hospitals get paid for ordering and interpreting the tests and performing the procedures they claim are unnecessary.  Secondly, it is unethical for a doctor to order a test the patient does not need and to do so for the benefit of the doctor and not the patient.  Until now, there have been claims of massive amounts of defensive medicine with no proof to support them.  The problem has been how to determine if a test was ordered for fear of suit or because the patient needed it.  A recent study found a novel way of addressing that issue.

Researchers from Duke and M.I.T. looked at medical care provided to active duty service members who are precluded from suing for malpractice.  They compared the care provided to the service members with the care provided to their families, who do have the right to sue.  They also compared the cost of the care provided to the service members in the military care system with the costs the service members incurred when a base hospital closed and the service members were forced to seek care in the civilian system.  In both situations, they found that there was less care provided to the service members when they could not sue and that the additional care they received when they transitioned to the civilian world did not seem to make much difference.

While the study did finally provide some objective evidence of the existence of defensive medicine, it did little to assist those in the medical profession who claim that this is a huge problem which can only be solved by limiting the rights of patients.  In the first place, the researchers concluded that what they believed was defensive medicine only increased health care costs by about 5%, a far cry from the 26% claimed by Rep. Tom Price in Congress.  Secondly, the researchers quite properly concluded that any laws limiting patient rights in an attempt to prevent defensive medicine would only recoup some percentage of the increased amount of the bills.  In other words, limiting patient rights in a major way might result in a 1-2% reduction in overall health spending.  I respectfully submit that limiting patient rights to sue is a huge price to pay for such a small benefit.

There is much to complain about in terms of the amount of medical malpractice and how patients are treated when they try to get compensated for injuries caused by medical malpractice.  One thing we should not waste a lot of time or energy complaining about is defensive medicine.  It is a minor problem at best.



Posted in Defensive Medicine, Doctors, Health Care Costs, Hospitals, Malpractice caps, Medical Costs, medical ethics, Medical Malpractice, tort reform |

Computer Problems Cause Medical Errors

September 03, 2018

Banner Health is big.  Not only is it the largest health care system in the state of Arizona, it is our largest employer as well.  When it has computer problems, many patients are likely to be affected.  This was the case last fall in Tucson.

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The problems arose as a result of Banner’s merger with the University of Arizona’s Health Network.  This brought a number of southern Arizona hospitals and clinics under the Banner umbrella.  As with any merger, there were issues blending the two entities.  One of the issues was that each of the entities was using a different electronic medical record keeping system.  So that medical records, billings and ordering systems could be consistent throughout the system, the entities had to get on a single system.  The decision was made to have the southern Arizona locations convert to the record keeping system already in use in Banner’s other locations.  Any conversion would be expected to produce some problems.  The problems with this conversion were substantial and affected patient care in some instances, according to a recent story in the Arizona Daily Star.

The Star investigated the transition and made a public records request to the Arizona Department of Health Services to see what records it had of problems arising from the transition.  What it received was heavily redacted but showed adverse effects on some patients and lots of staff frustration.  Banner, while admitting delays in getting patients registered, delays in ordering and receiving lab results and delays in ordering and receiving medications, denied that any patients were injured.

Since the problems affected all of the newly acquired southern Arizona facilities, some of the patients affected by the delays in getting medications and test results were patients who were critically ill.  The records of the Department of Health Services showed that, despite Banner’s denials, some patients were indeed harmed.  At least one substantiated complaint showed that there was a delay in treating a patient due to an inability to use the new computer system which resulted in a deterioration of the patient’s condition which required the patient be intubated.

A resident physician was mistaken by the system for an attending physician.  Residents are medical school graduates who are still in training and who practice under the supervision of an attending physician.  The difference is an important one.

There was at least one “near miss” reported where a physician ordered  a too large dose of a medication for an infant.  The error occurred because the old system and the new system recorded patient weight differently and the dosage was based on weight.  The error was caught by a nurse before the infant was overmedicated.

A retired physician was quoted in the story describing the problems he experienced as a patient in getting his cancer treated during the transition period.  He reported delays and confusion.  He had to keep after people to get done what he knew needed to be done.  He wondered what would have happened had he not been as knowledgeable about his condition and treatment as he was.  What would have happened if he just assumed that his doctor’s office was doing what needed to be done, he wondered.

The retired doctor should be an example to all of us.  Learn as much as you can about your condition and its treatment.  Ask questions.  Do not assume that no news is good news, if you don’t hear back about a test result.  Keep after providers to get the tests, examinations and treatment you believe you need or have them explain to your satisfaction why you don’t need it.  A passive patient who gets injured because the doctor’s office didn’t follow through will be blamed for her inaction, should she bring suit.  “Blame the patient.” is a major defense in medical malpractice cases.  Don’t let it happen to you.  Be proactive.


Posted in disclosure of medical mistakes, Doctors, electronic medical records, Hospital Negligence, Hospitals, medical charts, medical errors, Medical Malpractice, medical mistakes, Medical Negligence, Medication Errors, plaintiff |

Medical Malpractice Verdicts

August 27, 2018

I look at medical malpractice verdicts from cases throughout the United States.  I find the exercise to be frustrating.  Most of the time the verdicts are newsworthy because the jury awarded the  patient a large amount.  Only occasionally do the reports cover those cases in which the doctor or hospital was given a defense verdict.  This is the source of much of my frustration as in the great majority of malpractice cases that go to trial, the patient loses.  Anyone reading the newspaper or watching the news is going to think that doctors and hospitals are under attack and keep losing big case after big case.  That is simply not true.

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It is my firm belief that juries try to do the right thing.  However, the playing field is not a level one.  Defendants have an advantage even before the jurors walk into the courtroom to begin the trial.  Why is that?

I find that juries today are generally quite conservative and skeptical about the cases they judge.  The insurance industry and big business have done a good job of indoctrinating the public to believe that juries give away too much money.  They have had a field day with what is often called “The McDonald’s Coffee Cup Case,” in which a woman received a large jury verdict after she was badly burned by a cup of coffee she had placed in her lap.  The case has become the poster child for out-of-control juries and the need for personal responsibility.  Those who push this narrative never talk about why the verdict was so high in the first place or how it was reduced greatly after the trial.  It is best for these business interests to just show it as an example for jurors of what not to do.

Not satisfied with a real case to use as an example, the insurance industry and big business are likely behind the regularly circulated reports of phony jury verdicts.  You have to be a hermit with no internet connection to avoid these chain messages.  The phony verdicts they report are intentionally outrageous and cause any rational reader to ask how a jury could ever have done such a thing.  Pretty much anyone with any experience in the legal system will immediately smell a rat with these reports but most people take them at face value.  Like the endless repetition about the McDonald’s coffee case, these phony reports are intended to create an underlying attitude in every potential juror that things have gone too far and we need to put a halt to people coming to court and looking to get rich.  The campaign to sway the jury pool is directed at all types of injury cases.  It has been very successful, especially in medical malpractice cases.

Report after report shows that doctors and hospitals win most of the cases that get tried, even when the evidence of malpractice is strong.  This is true pretty much across the board in all of the states.  If the playing field were level, patients would win most of the cases in which the evidence of malpractice was strong.

Here is one such study done by the medical profession itself.  If even the medical profession admits that they win most of the cases, you know it must be true.  Furthermore, this study probably understates the hurdles faced by a victim of malpractice as most of the cases studied were prior to 2000 and juror attitudes have only hardened since then.  Of course, you will never hear the doctors or the hospitals or their insurers publicly admit the advantages they have in the courtroom.  It is much better for them to claim that they are being victimized by an unfair system when, in truth, it is the patients who are being victimized.

Sadly, there is nothing an injured patient can do to change the ingrained attitudes of the general public.  Only the malpractice cases with the clearest evidence of medical error coupled with the most serious injuries have a reasonable chance of success in today’s environment.  Everyone else must just grin and bear it and that is just the way the insurance industry and the medical profession like it.

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

Some Thoughts Before Surgery.

August 21, 2018

Surgery is scary.  Lots of things can go wrong.  No one can guarantee a good surgical outcome.  Even the best surgeon operating in the best hospital may end up with a bad outcome.  If your surgery is of the emergency variety, you have few options and often have to take what is given to you.  On the other hand, if your surgery is not emergent, there are things you can do to increase the chances that you will have a good outcome.

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Choosing your surgeon.  The identity of the person who will be in charge of your operation is usually the most important factor in determining whether you will get the best possible result or not.  Not all surgeons are created equal.  Some are just smarter or more technically proficient.  Some are better trained or more experienced.  While a recommendation from your regular doctor is a good place to start, never just accept that recommendation without doing some checking.

Recommendations.  Speaking of recommendations, you need to be aware of their limitations.  Generally speaking, a recommendation from a doctor should carry more weight than one from a neighbor or relative.  A neighbor or a relative may have had a good result with a particular surgeon but you want a surgeon who gets good results all the time.  The neighbor or friend is a sample size of one and that is a very small sample size, too small to know if the surgeon is any good or not.  Even a blind pig finds an acorn once in a while.

Even a recommendation by a physician has its limitations.  The recommending physician may never have seen the surgeon in action.  He or she may know the surgeon from the country club or the doctor’s lounge at the hospital.  Over the years, I have been amazed at the number of referrals made by doctors to surgeons I know to be regular malpractice defendants.  In short, doctors can have many reasons for making a recommendation and may not know very much about how good the surgeon actually is.

Medical Board Information.  Like most states, Arizona’s Medical Board has a web site.  This is a good place to start with whatever names you have been given  On medical board web sites you can find information about where a surgeon went to school, whether he or she had a residency and, if so, in what area of medical specialty.  You can also learn whether the surgeon is board certified or not.  Board certification means that the surgeon has demonstrated proficiency in the area of certification.  Lastly, you can learn if the surgeon has been disciplined or not.  All of this is critical information.  Don’t skip it.

Choosing a Hospital.  After you have narrowed your list and checked the credentials of the surgeon you are considering, you need to find out where he or she operates.  Just as not all surgeons are equal, not all hospitals are equal.  Some hospitals have a high rate of complications or infections.  Some have very few readmissions, which is a good thing.  The federal government has collected a lot of information about hospitals as part of its Medicare reporting requirements.  Here is a link to a guide on selecting the right hospital.  Here is a link to comparing hospitals.  If the surgeon you are considering operates only at a hospital that has a lot of problems, you may want to reconsider your choice of surgeons.

Questions for the Surgeon.  Assuming everything checks out so far, you are now ready to meet with the surgeon and to ask some questions.  Any good surgeon should be willing to answer these questions.  If your surgeon is reluctant, find another surgeon.  There are lots of them out there in every large city.

The most important question is how often the surgeon performs your operation.  Study after study has shown that the more often a surgeon performs a procedure, the lower the complication rate.  In an ideal world, you want a surgeon who only does your procedure and is in surgery many times a week.  The next question for your surgeon candidate is his or her complication rate.  Good surgeons have a low complication rate.  They also have a low readmission rate to the hospital.

When it comes to scheduling, you would like your surgery to be Tuesday or Wednesday.  Surgeries performed on these days have the lowest complication rates.  A surgery on these days also reduces the chances you will be in the hospital over the weekend.  You do not want to be in the hospital over the weekend.  The chances for malpractice are higher over the weekend, especially a holiday weekend.

If you follow these suggestions, you will have done the most that you can do and the rest is out of your hands.  Good luck.

Posted in Arizona Medical Board, Doctors, Hospitals, Infection, medical errors, Medical Malpractice, medical mistakes, Medicare, Surgical Errors |