Medical Malpractice News and Views

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

Vaccine Injuries.

April 29, 2019

The news is full of stories about vaccines.  While vaccines are generally safe and protect the individual and society from many of the most dangerous and deadly illnesses nature has devised, people occasionally suffer a bad reaction to a vaccination.  That is where the National Vaccine Injury Compensation Program comes into play.

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The whole idea of vaccination is to introduce something into the body which will stimulate the patient’s immune system to develop an immunity to the subject of the vaccination.  Unfortunately, we do not understand the immune system as well as we would like.  It is millions of years old.  It developed to protect us from the many pathogens our ancestors faced on a daily basis.  Although we and our lives have changed a lot, especially in the last thousand years, our immune system has not.

As we have grown more “civilized,” we have cleaned up the environment in which we live.  No more open sewers.  No more eating rotten meat or produce.  No more living with cows, pigs and chickens in the next room.  All this means that in our advanced Western society, our immune systems don’t have as much to do as they used to.  Much as idle hands are called “the Devil’s workshop,” an idle immune system can become a danger.  Idle immune systems become hypervigilant while looking for a threat to attack.  Sometimes they become confused and attack the body itself.  These attacks are called autoimmune diseases.  My grandson’s Type 1 diabetes is an example of an autoimmune disease that is on the rise in Western societies along with many others.

The same hypervigilance that causes autoimmune diseases can cause the immune system to overreact when a vaccine is administered.  This overreaction can take many forms but it remains a rare occurrence.  There is no legitimate question that vaccines are a great good to society and prevent much illness and death.

The  National Vaccine Injury Compensation Program was created by Congress in 1986 in response to concerns that manufacturers would stop producing vaccines because of lawsuits alleging various injuries due to vaccine administration.  Under the program, a person who believes that he or she has been injured by a vaccine can file a claim with the Office of Special Masters of the United States Court of Federal Claims.  The Office of Special Masters hears these cases and makes awards based on the damages suffered by the patient.  Most importantly, the system is a no-fault system.  That means that the patient need not prove that a mistake was made or that someone did something wrong.  All they must prove is that they received a vaccine and were injured by the vaccine.  It is also significant that the patient need not pay for an attorney to represent him or her before the “vaccine court.”  The program provides that the lawyer is compensated by the program and not by the patient.

If you believe you have been injured by a vaccine, we are here to help.  Give us a call and see if your injury is one which can be submitted to the Vaccine Court for compensation.






Posted in health, Vaccines | Tagged |

“The Computer Will See You Now.”

April 22, 2019

Artificial intelligence is reshaping the world and medicine is one of the areas in which it is changing things rapidly with much more to come.

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Dr. Eric Topol wears many hats.  He is a cardiologist, a professor of genomics, director of the Scripps Translational Science Institute at Scripps Research in La Jolla, California.  Dr. Topol has written a book entitled, “Deep Medicine” about our broken health care system and the promise that artificial intelligence has in restoring balance to the system.  Dr. Topol notes the focus of today’s medicine on moving patients through the system rapidly and in great numbers to generate the income needed or wanted to keep the whole thing afloat.  Doctors must see more and more patients, which means they can devote little time to each to the detriment of both of them.  The physician-patient relationship, which is the basis of medicine, has been greatly damaged.  Medical errors abound.  According to Dr. Topol, one quarter of all deaths in this country are due to medication errors.  Something has to give.

Artificial intelligence has the capability of crunching huge data sets, reading x-rays, interpreting blood work, correlating patient symptoms and test results and doing a whole host of other things to make medicine more accurate and more personal to the patient.  It will also free the physician from mundane tasks and allow her to connect again with the patient.

Dr. Topol recently told a story about using portable ultrasound technology on his smart phone.  He says he was having abdominal discomfort so he got out his phone and imaged his abdomen.  He saw an enlarged kidney and concluded that he had kidney stones.  He went to the emergency department and told the doctor that he had kidney stones and that he had made the diagnosis using his smart phone.  He says the ED physician looked at him like he was a space alien and ordered a CT.  The CT, which cost $3,000, showed the presence of kidney stones.  Dr. Topol’s phone had provided the necessary diagnostic information for free.  The smart phone is one example of using technology to empower patients.

The good Lord knows that our health care system needs help.  We spend more than any other country in the world on health care but get health outcomes that are far below those of other advanced countries.  Everybody makes money but the care is often not good.  Malpractice occurs regularly but is often swept under the rug or hidden behind the curtain of secrecy.  While artificial intelligence also presents risks, such as privacy concerns or poorly constructed algorithms, it also has great promise to make medicine more efficient and more personalized.

Posted in Doctors, Health Care Costs, Hospitals, medical charts, Medical Costs, medical errors, Medical Malpractice, medical mistakes, Medical Negligence, Medication Errors, science news, Secrecy |

To Autopsy Or Not?

April 15, 2019

When a loved one dies, the family they leave behind are understandably grief stricken.  Senses are numbed, tears are shed, final arrangements are made, often in a haze of grief.  Questions about why the loved one died and whether medical malpractice might have played a role are frequently put off until after the funeral and the relatives and friends have returned home.  This may be too late.

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When family members come to see me about the death of a loved one, one of the first questions I must ask is whether there was an autopsy or not.  The absence of an autopsy may prevent me from taking the case.  Let me explain why.

Medical malpractice cases are tough enough under the best of circumstances.  Doctors get to testify they did everything right and get to bring in an outside “expert” to say the same thing.  The patient or the patient’s family gets only one outside “expert.”  The odds are two-to-one before you even reach the courtroom.  This is important because at the end of the trial the judge will tell the jury that the patient has the burden of proving the existence of malpractice and that if the patient doesn’t meet that burden of proof, the jury must find in favor of the doctor.  The jury doesn’t know the medicine before the trial begins.  They just listen to the witnesses and do the best they can.  If at the end of the case, they can’t figure out what happened, they are told they must find for the doctor.  To top it all off, the doctor and his or her lawyers can suggest mere possibilities for which there is little or no evidence to create issues to distract the jury.  Very often, it works out for them and the patient loses.

In death cases, the family must prove that there was a medical mistake, that the medical mistake caused the death and that the patient would not have died in the absence of the mistake.  Everything depends on being able to prove the cause of death.  It isn’t as easy as it may sound.

It doesn’t matter what the doctors or the nurses may have told the family about why the patient died.  They may deny that they said it or may say the family misunderstood them or that, after giving the matter more thought, they now believe they were mistaken.

The medical records are almost never conclusive either.  In the first place, doctors write the medical records.  If they are writing about their own care, they don’t want to admit in the records that they made a mistake that killed the patient.  If they are not the doctor who made the mistake, they may not want to write anything that reflects badly on the doctor who made the mistake.  Secondly, the cause of death in the records may be pretty generic when, in order to win at trial, you are going to need to be specific.  Third, and this is especially true in older patients, there is usually a lot going on from a medical perspective.  Older patients have a lot of medical issues and a smart defense lawyer (and they are all smart) can easily muddy the water by pointing to these other medical issues as a possible explanation for the death.

If you think there may have been a medical mistake that caused the death of a loved one, you are unlikely to get to the bottom of what happened without an autopsy.  The pathologist who conducts the autopsy will carefully examine the deceased inside and outside to determine the cause of death.  Blood and tissue will be tested and examined under a microscope.  Tissue samples will be saved for later examination and for use at trial, should the matter proceed that far.

Unfortunately, this means arranging for an autopsy soon after the death but there is no good way around this.  The hospital may offer to perform an autopsy and you may be tempted to accept its offer but the hospital may have an interest in the outcome of the case and that can affect both the autopsy and the willingness of the pathologist who performs it to cooperate with you later.

Your best bet is to arrange for a private autopsy.  They usually cost between $3,000 and $5,000.  The pathologist who performs the private autopsy will cooperate with you and answer your questions to the extent he or she is able.  He or she will also be available to work with your lawyer and to testify at trial, should that be necessary.

I hope you never need to consider the question of whether a loved one’s death was the result of malpractice or not but, if you do, get a private autopsy.


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

Power Morcellators Continue To Be Used.

April 10, 2019

Here is a link to a story in today’s Wall Street Journal about the continued use of power morcellators.  I have been writing in this blog about power morcellators for 4 years now.  I have links here, here and here to some of my posts.  The problem is that the power morcellator has the potential to spread aggressive cancers, if they are present, and make a bad situation worse.

Power morcellators are used by surgeons during laparoscopic procedures in the uterus to break up masses, such as uterine fibroids, so they can be removed easily through the small incisions that have been made for the surgical instruments.  The morcellators act much as a blender does with rapidly rotating blades chewing up tissue into small bits.  The small bits can then be washed out with saline solution and a vacuum.  This all works very well unless the patient has an unknown cancer.

When power morcellators came on the market, they were embraced by the community of surgeons doing laparoscopic surgery.  They provided a quick and easy solution to the problem of removing masses that would not fit through the small incisions created for the laparoscopic procedure.  It took a number of years for the risks of their use to become clear.

It is estimated by the Food and Drug Administration (“FDA”) that one in 225 to one in 580 women who undergo laparoscopic uterine procedures have an aggressive cancer that has not detected by the time of the surgery.  Most often, when this is the case, the cancer is masquerading as benign tissue.  When the surgeon uses the power morcellator, the cancer is chopped up into thousands of small pieces.  When the surgeon washes out the uterus with normal saline, some of the cancer cells are certain to be left behind and are now spread throughout the uterus.

When the dangers associated with power morcellators became known, the FDA faced a choice.  It could ban them or it could restrict their use or it could choose a middle path and just issue a warning.  The FDA chose to issue a warning that surgeons should not use power morcellators but did not limit their use.  In response to the FDA’s warning, some hospitals prohibit surgeons practicing there from using power morcellators.

In spite of the FDA warning, some surgeons believe the threat is overblown and continue to use morcellators.  Most surgeons, however, have found other means of removing the uterine masses they have cut out of the patient’s body.  One of the alternatives for those who continue to use morcellators is to use a small bag into which the surgeon can place the mass or masses.  The surgeon can then insert the power morcellator into the bag and break up the masses.  The bag can then be removed through the incision.  It is not clear whether this alternative fully protects women with unrecognized cancers.  Other surgeons also use a bag but cut up the masses manually rather than using the power morcellator.  Manually cutting up the mass avoids the creation of thousands of microscopic particles which may contain hidden cancer.

If you are going to have a laparoscopic procedure to remove uterine masses, you need to discuss with your surgeon how he or she intends to remove the masses.  A one in 225 chance of spreading an aggressive cancer is not one I would recommend to my wife or daughters.

Posted in Cancer, Doctors, healthy living, hysterectomy, Power Morcellators, Surgical Errors |

Sepsis and Diet.

April 08, 2019

Sepsis is one of the leading killers in the United States.  1.7 million Americans get sepsis each year.  Fully one-third of all patients who die in hospital have sepsis.

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Sepsis is the body’s response to overwhelming infection.  For most of us, our immune systems will enable us to fight off an infection.  However, older people or people with damaged immune systems may not be able to fight off even minor infections.  Major infections may overwhelm even a healthy immune system.  When sepsis occurs, it can get out of hand and progress to what is called septic shock.  Septic shock causes the blood pressure to drops and organs to fail.  Death is often the consequence of septic shock.

New research suggests a close interrelationship between sepsis, the immune system and diet.  When you think about it, it is really not very surprising.  So much of what happens to us is related to our immune systems and so much of what happens to us is also related to our diets.  The new study found a relationship between what is called the “Western diet,” which is diet high in saturated fats and sugars and low in fiber.  Mice that ate the Western diet got more cases of sepsis and, when they did become septic, had poorer outcomes.

The Western diet mice also had higher overall rates of inflammation.  Inflammation is now believed to be related to much of what ails us from arthritis, to cognitive impairment, to heart disease to intestinal diseases.  It also leads to poor immune system responses.  If we can reduce inflammation, we will surely be healthier.  Eating a Mediterranean diet high in unsaturated fats and fiber is one way to reduce inflammation.

As we age, our immune systems naturally weaken.  There is nothing we can do about it in the absence of a time machine.  We don’t need to accelerate the process, however.  We can slow the process by eating a sensible diet and by engaging in physical activity.  It is never too late to start.  So get off the couch, have an apple and go for a long walk.


Posted in blood infections, General Health, health, healthy living, Infection, medical research, Obesity, obesity epidemic, Sepsis |

Black Box Medicine: It’s A Thing.

April 01, 2019

We have all heard about the self-driving cars that are coming to a highway near you in the not-too-distant future.  They are powered by artificial intelligence (“AI”).  We had a fatal accident here in Arizona last year when a self-driving car under test hit a woman crossing the road late at night.  Needless to say, litigation has ensued.

The defendant is the company that was testing the car and which employed the driver, who was supposed to be monitoring things.  But, as many have asked, who gets sued if a private individual is in a self-driving car and the car causes an accident?  Is it the owner of the car?  Is it the person sitting in the car at the time of the accident?  Is it the manufacturer of the car?  Is it the developer of the software that runs the car and makes it self-driving?  Many people have been asking about this and thinking about it for some time.  Very few people, however, have been asking about and thinking about what happens when an artificial intelligence program makes a medical mistake that injures or kills a patient.

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“Black Box Medicine” is the name given to artificial intelligence programs that more and more health care providers are using to assist them in medical decision making.  Typically, the programs employ algorithms which are developed from large data sets of patient information.  The doctors using the algorithms answer certain questions about their particular patient and his or her symptoms and the algorithm suggests a treatment.  It is called “Black Box Medicine” because no one but the creator of the algorithm knows what is going on inside and how it was programmed to make decisions.  More and more medical decisions are being made either by algorithms or with the help of an algorithm.

Although the algorithms are powered by AI, AI is only as intelligent as the people who program it and only as accurate as the data upon which it relies.  People develop the algorithms.  People select and record the data used to train the algorithms.  People are fallible.  People make mistakes.  People have biases.  Algorithms are going to make mistakes and have biases too.  Some already have.

In preparing this post, I read a report of an AI recommendation for chemotherapy for a patient that included use of a blood thinner.  Unfortunately, the patient had a history of extensive bleeding.  The bad recommendation was caught in time but if it had been used, it could have resulted in the patient hemorrhaging.

One of the ways in which malpractice can occur with the use of algorithms is the data entry by the patient’s physician.  If the physician enters incorrect data, the answer is likely going to be incorrect as well.  Even when the data entered by the patient’s physician is correct, the algorithm may have unknown defects that make the answer incorrect.

So who is responsible if a patient is injured by the recommendation made by an algorithm?  Is it the physician or hospital that selected the algorithm?  Is it the manufacturer who programmed the algorithm?  What responsibility does the patient’s physician have to double check the recommendation of the algorithm?  Is it malpractice to disregard the recommendation of the algorithm?  What happens if the patient’s physician thinks the algorithm is wrong and chooses a different treatment and the patient is injured by the chosen treatment?

These are all questions for which the law provides no easy answers.  As always, choose your physician and your hospital as wisely as you can and hope for the best after that.



Posted in Doctors, Hospital Negligence, Hospitals, Medical Devices, Medical Malpractice, medical mistakes, Medical Negligence, science news |

The Medical Malpractice System Favors Doctors.

March 25, 2019

Here is more evidence, if more evidence is needed, that the medical malpractice system favors doctors.  It is in the form of a report published in the Journal of Oral and Maxillofacial Surgery, a publication by and for doctors.  The authors looked at the results of malpractice cases involving facial trauma found in a legal database.  The cases covered a time span from 1913 to 2016, although most of them went to trial after 1965.  The authors also compared outcomes in different parts of the country.  Their conclusions were that, of the cases that went to trial, doctors prevailed over 75% of the time.  In addition, the courts often dismissed claims against doctors before they ever got to trial, increasing the percentage of cases that ended in favor of the doctors.

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As I have remarked before, any review of medical malpractice verdicts must be taken with a couple of grains of salt, especially if the verdict was in favor of the plaintiff.  Verdicts in favor of the plaintiff are often challenged and result in the plaintiff receiving less money than the jury awarded.

Furthermore, any review which begins with cases from 1913 is dealing in ancient history.  Only cases decided in the last 20 years or so have any predictive value for a case being filed today.  Jury attitudes about malpractice cases have changed over the last hundred years just as have public attitudes about almost any other subject you could name.

Furthermore, although this case review limited itself to cases involving facial trauma, the results, in my experience, are pretty much the same regardless of the nature of the injury giving rise to the malpractice suit.  Doctors, regardless of specialty, win better than 75% of the cases that go to trial throughout the United States.

Even with the limitations of the case study reported here, it is significant that juries keep finding in favor of doctors and doing so over and over, year after year.  Is it just a coincidence?  I think not.

I start from the proposition that juries want to do the right thing.  They want to be fair.  They want to make things right.  The problem is that deep down inside they really don’t want to believe that doctors make mistakes that kill and injure people.  It is much easier and much more comforting to find that the doctor didn’t do anything wrong.  This becomes the filter through which jurors view the evidence presented at trial.  It is only the most egregious mistakes that cause the most terrible and lasting injuries that can get juries to face facts and find against the doctor.

To make matters worse, juries have also been bombarded with claims that most medical malpractice cases are frivolous.  They are told that doctors cannot afford malpractice insurance.  They are told doctors are fleeing the jury’s state because of out-of-control juries who find against doctors.  It is suggested to them that, if they want to keep good doctors in their state to take care of them and their families, they had better find for doctors at trial.  Lastly, it has become a matter of faith for self-described Republicans that malpractice claims and cases are frivolous and should be limited in various ways.

The result is just what the medical profession and its insurers hoped when they began their campaign to sway the public.  Juries got the message and only rarely find in favor of plaintiffs.  Now, if they could just do something about those few times when the jury finds in favor of the patient, all would be well in the medical world.

Posted in Doctors, Malpractice costs, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, plaintiff, tort reform |

Arizona Hospitals Busted by Medicare for Patient Safety Lapses.

March 22, 2019

I am not the only one who believes that there are patient safety problems at Arizona hospitals.  Medicare has announced that it is penalizing 15 Arizona hospitals for high rates of infection and patient safety issues.  The Arizona 15 are among 800 hospitals across the country identified by Medicare.

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The hospitals being penalized will lose 1% of their Medicare payments for patients discharged between last October and the end of this September.  This is some serious money.  The safety program was created by the Affordable Care Act and is intended to force hospitals to pay more attention to patient safety issues.  As I am sure you can guess, nothing gets the attention of a hospital administrator more quickly than losing money she expected to receive.

This safety program has been in effect for five years.  This year’s “winners” are John C. Lincoln North Mountain (Phoenix), Maricopa Medical Center (Phoenix), Banner Payson Medical Center (Payson), Chandler Regional Medical Center (Chandler), St. Luke’s Medical Center (Phoenix), HonorHealth Osborn Hospital (Scottsdale), Canyon Vista Medical Center (Sierra Vista), Kingman Regional Medical Center (Kingman), Banner – University Medical Center Tucson Campus (Tucson), Sells Hospital (Sells), Abrazo Scottsdale Campus (Scottsdale), Chinle Comprehensive Health Care Facility (Chinle), Honor Health Deer Valley Medical Center (Phoenix), Banner Gateway Medical Center (Gilbert), and Banner Ironwood Medical Center (Queen Creek).

Maricopa Medical Center, Banner – University Medical Center Tucson Campus and Sells Hospital have been on the list every year since it debuted in 2015.  HonorHealth Deer Valley and Banner Ironwood have made the list four out of the five years.

As reported by Kaiser Health News, “The penalties pit hospitals against one another in a race to prevent the most infections, blood clots, cases of sepsis, bedsores, hip fractures and other complications. Each year, the quarter of general hospitals with the highest rates are punished, even if their records have improved from the previous year.”

Unsurprisingly, hospitals consider the penalties to be unfair and not an accurate reflection of their commitment to patient safety.  But facts are facts and these hospitals have the highest rates of complications indicative of poor patient safety.

This list serves at least two important purposes.  First and foremost, it is notice to patients that they need to ask questions if they are considering being admitted to one of these hospitals.  Often we have a choice in hospitals and it is important to get as much information about the people who will be caring for us as possible.  Second, the hospitals are given a financial incentive to improve their patient care.  It is amazing what a financial incentive can sometimes accomplish.

As always, be an informed consumer of health care and you have the best chance of avoiding malpractice and ever having to visit me.



Posted in General Health, health, Health Care Costs, Hospital Negligence, Hospitals, Infection, Medical Costs, medical errors, Medical Malpractice, medical mistakes, Medicare, Sepsis |

Medical Malpractice Case Evaluation – A Primer for Lawyers

March 21, 2019

Below is an article I wrote for the Advocate, the monthly  journal of the Arizona Association for Justice, a professional association of plaintiffs personal injury lawyers.  It provides advice to lawyers thinking about taking on a medical malpractice case.  It has been edited sightly to provide good information anyone who believes they or a loved one has been the victim of medical malpractice case and is looking for a competent lawyer.  

Medical malpractice cases are among the most difficult, expensive and hotly-contested personal injury cases to litigate. Such cases are almost always defended by skilled lawyers with significant experience. They often do not settle until the eve of trial, if they settle at all. And, in Arizona, juries find for the defense more than 75% of the time.  This is what I tell lawyers to think about when consulting with a prospective medical malpractice client.

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First and foremost, be honest about your abilities and qualifications. Like any specialized form of litigation, medical negligence claims are not for dabblers. There are many traps for the uninitiated and many ways for good cases, even in the most capable hands, to go south. Ask yourself, are you really equipped to handle a medical negligence case? Can you efficiently decide whether a claim has merit? Have you litigated a medical malpractice case? Have you tried one? Have you tried any personal injury case? Does your staff know how to manage a medical malpractice case? Can you afford to take on, and potentially lose, an expensive case? Do you know how to identify and retain qualified medical experts who will be effective trial witnesses? Can you master the medicine? Can you effectively manage sophisticated deposition practice? You should be able to answer ”yes” to each of these questions before you even consider evaluating a potential case.

If you can’t, keep in mind most skilled medical malpractice lawyers got that way because of good mentoring and hard work. Substantial personal injury experience will provide a solid foundation for a successful medical negligence practice. In order to take the next step, however, you will need to learn a lot more from a willing mentor who has experience handling such claims. Insurance companies and defense lawyers can spot an inexperienced medical malpractice lawyer from a mile away. An inexperienced lawyer and their client will not want to be on the receiving end of what comes at them during the litigation and eventual trial of a case. Don’t be that lawyer.

It is not easy to get medical malpractice experience these days. Medical malpractice lawyers may take fewer than 1 out of every 100 potential cases they evaluate. The opportunities for trial are even fewer and further between. Most years, fewer than 25 medical malpractice cases are tried in the entire State of Arizona. If you don’t think you know what you are doing, or you aren’t sure, don’t fret. Find someone who does and ask for help.

Do you have a capable office staff? Medical malpractice litigation requires significant human resources. You need capable folks who can manage voluminous medical records. They must understand basic medicine. They must understand the special features of medical malpractice litigation, including the procedural and substantive differences from other types of torts.

Can you evaluate potential medical malpractice cases quickly and accurately? If it takes screening 100 cases to find one that is viable, you need to be able to do this. Here are some things to look for.

First, take an unvarnished look at your potential client. Do you like them? You had better. You are going to be married to them for the next two plus years. More importantly, will a jury like them? Juries have little tolerance for whiners, complainers, folks who are unduly angry or who appear to be telling a story that doesn’t make sense. A client whom nobody likes usually has lost their case long before they walked in your door. It can be tempting to take a case with good liability and damages, but a bad client. However, you must ask yourself how much time and money you want to spend trying to help someone when a jury is unlikely to want to do the same. My advice – don’t do it.

Does the client have reasonable expectations? Are they pursuing the case for the right reasons? Will you be able to manage their expectations – and yours? The management of expectations begins the moment a client first makes contact with your office. They often will have talked to friends who tell them stories about folks who got millions of dollars in a case that wasn’t nearly as good as theirs. Cup of McDonald’s coffee anyone?
Cases get better and they get worse, but they never stay the same. Similarly, a client’s expectations are likely to be somewhat dynamic throughout the course of the case. It is important for you and the client to understand what success looks like both in terms of settlement value and the likelihood of a jury verdict at trial, both of which are unique in the medical malpractice setting. Injuries in medical malpractice cases are inherently less valuable than in other types of tort cases. The verdicts tell this tale.

Significant injury is an important consideration in any complex personal injury case, but even more so in the medical malpractice context given the risk and expense of such cases. One reason is that physicians (and sometimes other health care providers) often have the absolute right to decide whether or not to settle a claim against them. Individual medical malpractice liability insurance policies generally start and end at $1 million, and million dollar cases don’t come around every day. Therefore, unless there is significant risk of a judgment in excess of that amount creating personal exposure for the health care provider, they may have little incentive to settle, especially when considering the high degree of success medical malpractice defendants have at trial. In a case where there will be relatively little risk of personal exposure to the health care provider, a lot of other stars should be in alignment before you decide to move forward.

Is the likelihood of success worth what the clients must endure? Not every instance of malpractice justifies pursuing a claim, even where there is good liability. Medical malpractice cases are exceedingly emotional experiences for the litigants on both sides. I find this to be especially true in wrongful death cases. Folks that have been harmed by medical negligence have already been traumatized once. Litigation will force them to relive their experience again and again for two or more years, with the risk of liability for defense costs at the end of the day. It can be an extreme psychological burden. Clients should be counseled to think carefully about what it is that they really want to accomplish with litigation and whether the emotional cost is worth it.

How complex is the case? How many potential defendants are there? How hard is the medicine? Will a jury be able to clearly understand the issues and do they clearly point to malpractice? Complexity is your enemy. Defendants are permitted to speak in terms of possibilities. You are required to speak in terms of probabilities. The more complex a case, the more possibilities there will be. If a jury finds a case is too complex, or you can’t clearly frame it in a way that makes sense, you are likely to lose.

When does the statute of limitation run? Generally speaking, six months is not a very long time to work up a case to the point where you will have the degree of confidence necessary to file suit. What happens if you miss something, or more importantly, someone, because the information necessary to identify a potential defendant is only available through litigation? When evaluating a case within six months of a limitations period, you should assess how quickly an investigation can determine whether the case is worth pursuing as well as the risk that you might not identify all of the parties who may be liable.

So, what does investigation beyond an initial potential client interview look like? At a minimum, it usually involves a thorough review of all of the relevant medical records with a jaundiced eye. A nurse consultant is a good person to initiate this process. Many medical malpractice lawyers have a nurse on staff who does this. There are services that do it on a contract basis as well. That initial assessment is only meant to give the lawyer a birds-eye view of the medical issues. A lawyer still must take the time necessary to review and understand all of the medical records. There are no shortcuts.

Like eyewitness testimony, medical records can be notoriously unreliable. They may also raise questions that can only be answered once a lawsuit is filed, if they can be answered at all. When that happens, a lawyer needs to anticipate what those potential answers and resulting outcomes might be and assess the relative risks and benefits of going forward in a fog of uncertainties.

If a review of the medical records give a lawyer a high degree of suspicion that negligence has occurred, then it is time to do some medical research. Where you go and what you look at will depend on the issue. Many online resources are available to help you get underway. However, there are likely to be important sources of information which you will not have access to until a lawsuit is filed and discovery is underway. You should be familiar with those sources and anticipate how such information could affect your case.

If the research points in the right direction, it is time to get expert opinions on standard of care and causation. These opinions are expensive and the order in which you do this can save on costs. Sometimes it makes sense to start with standard of care, sometimes causation. Ultimately, however, you will need both before you can decide to take a case.

Do you know where to find those experts? How do you determine if they are going to do a good job? Can you afford to hire these witnesses? It may cost $25,000 or more to get a single expert through trial. Complex medical negligence cases often involve many experts. Don’t forget the cost of deposing defense experts. They can charge upwards of $1,000.00 an hour for their time and you may have to take many long depositions. Even the most uncomplicated medical malpractice case, to the extent such cases are ever relatively simple, is likely to cost more than $50,000.

Experts need to be qualified under A.R.S. § 12-2604. Expert qualification can involve a nuanced analysis, as suggested by recent Arizona case law. E.g., Baker v. University Physicians Healthcare, 231 Ariz. 379 (2013). You must know the law in this regard and it can be murky. When evaluating the qualifications of an expert, always, always err on the side of caution.

When initially consulting with an expert, especially a standard of care expert, it is important to guard against later claims of hindsight bias – that is giving an expert information that is unnecessary to form an opinion which might suggest the outcome you are looking for. For example, if you can shield an expert from information about which side of the case you are on until after they share their opinions, do it. If you can avoid telling your standard of care expert what ultimately happened to the patient after the suspected negligence occurred, do it. Do whatever you can to anticipate and mute the defense that your expert, in forming their opinion, had information which was not available to the potential defendant when they were caring for the patient.

Once you get an expert’s opinions, ask yourself do they make sense? What are the defenses to them? You should spend considerable time testing your experts’ opinions, especially with medical literature if you can, before deciding to move forward. Medical experts are not lawyers. Just because an expert says you have a good case, does not make it so. Ultimately, you need to assess the strength of your expert’s opinions in view of the other strengths and weaknesses of your case.

The defense will almost always have well-qualified, credible experts who will say the opposite of what your experts say. A jury will decide who is right and who is wrong. It does not matter how ridiculous you think the defense expert’s opinions might be, it only matters what a jury thinks, and they will not have the benefit of having lived with the case as you have, or spending as much time as you have thinking about the medicine. Even if the issue seems simple, if a jury concludes two well-qualified experts are offering competing, but plausible, opinions, you likely will lose. The defense experts must be required to stretch in an obviously uncomfortable way for a case to succeed. Before you decide to take a case, you should think about what concessions a defendant’s expert must make in order to appear credible. You should ask the same question about your expert.

Once you obtain favorable expert opinions, have concluded you have a viable case, and are prepared to move forward, what’s next? Well, you may or may not want to make a settlement demand. Generally you won’t. Very few medical negligence cases are ever ripe for pre-litigation settlement. If yours is, you are probably better off waiting to let someone on the defense tell you so after you file your lawsuit.

Some lawyers make the mistake of trying to “shake the tree” by making a demand when they have no intention to follow it up with a lawsuit. Don’t do this. Companies insuring health care providers know a lot about who can try a case and who can’t, as well as who won’t. Do not take a case you are not prepared to take to trial. You risk ruining your reputation as well as your chance of settling future cases when that would otherwise be possible. Tell the insurance companies that you are serious about every case you take by being prepared and able to see it through trial and following through in that fashion when necessary.

Most folks who contact a medical malpractice lawyer have experienced bad care. Many times they have also been the victims of negligence. Unfortunately, bad care or negligence coupled with a bad outcome, even where there is significant permanent injury or death, does not always make a viable medical malpractice claim. Knowing when it does takes good judgment. Knowing what to do next takes substantial resources and experience.

Posted in Uncategorized |

The Surgical “Black Box” Revisited.

March 18, 2019

A little over four years ago, I wrote about a Canadian surgeon who had developed a “black box” to monitor events in the operating room and warn surgeons and nurses if they were deviating from best practices.  The goal was to improve the quality of the surgery and prevent medical malpractice.

Most people know what a “black box” is in the context of commercial airliners.  The black box records in real time a number of flight parameters such as airspeed, altitude, attitude and control positions.  In the event of an accident, the black box can provide invaluable information about what happened and how to prevent a similar accident in the future.

Image result for black box aviation

I predicted at the time of my earlier post that the idea of an operating room black box would be opposed by the very surgeons it was attempting to help.  That prediction, which unfortunately required little insight on my part, has proved true.  While commercial airline pilots, who have hundreds of lives in their hands, have their every move monitored, surgeons in the operating room complain that they would be too nervous if they knew a black box was watching and recording what they did.  They were afraid that the recording system would provide proof of their conduct, should they commit malpractice during the surgery.  Turns out they may have good reason to be concerned.

The Canadian surgeon who pioneered the idea of the surgical black box has continued his work.  Last year, he and his colleagues published a report of their experience during the first year of testing the black box concept.  The researchers followed 132 consecutive patients undergoing laparoscopic procedures at their academic hospital.  An academic hospital is one which has a residency training program.  Their findings were interesting.

Among their significant findings was that there were errors and distractions in every case.  Auditory distractions ranged from a minimum of 96 to a maximum of 190.  An auditory distraction is an irrelevant sound that has the potential to interfere with attention and decision making.  The median number of auditory distractions was 138.  Errors were frequent and often went unnoticed by the surgeon at the time.  The median number of errors for each surgery was 20.  Some surgeries had as many as 36.  The fewest number of errors in a surgery in the study was 14.  Errors occurred most often during the dissection and reconstruction phases of the surgery.  These are scary numbers.

The researchers were also able to compare the performance of surgery residents, who were in training, against the performance of experienced surgeons.  To no one’s surprise, the experienced surgeons exhibited better technical skills than their trainees.

It is good to have objective data such as this.  The black box here can perform the same function it does after an airplane accident.  The surgeons and the residents can learn what they did wrong and avoid those mistakes in the future.  It is time for the medical profession to get over its obsession with keeping its performance a secret from its patients and the public and embrace new technologies that will improve patient safety.


Posted in disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, medical research, Nurses, Secrecy, Surgical Errors |