Medical Malpractice News and Views


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

Doctors Come In Many Different Flavors

August 24, 2020

Doctors are human beings, just like you and me.  Most are wonderful, caring people, who chose medicine as a career so they could spend their lives helping others.  Not all are so selfless, however.  Not all chose medicine to help others.  A sizable number of doctors chose medicine because it is a high prestige occupation with the opportunity to make a lot of money.  Juries tend to think of the wonderful, caring doctors when they meet the greedy, opportunistic ones in the courtroom.  It is just another way in which people who have been victims of medical negligence through no fault of their own are further victimized by the legal system.

Phoenix Medical Malpractice Lawyers | Sandweg & Ager, P.C. - Part 5

I have been practicing law for a long time and have seen many doctors in the course of my practice.  Some have been defendants accused of malpractice.  Some have been expert witnesses, either for the patient or for the doctor.  Some have been doctors who participated in the care of the plaintiff but were not at fault for the plaintiff’s injury.  Some were caring, compassionate doctors but some were greedy, arrogant jerks.  I have found that the greedy, arrogant jerks are sued far more often than their caring colleagues.

Anyone can make a mistake.  This includes the caring, compassionate doctors.  To err is human. It has been my experience, however, that the greedy, arrogant jerks are more likely to make mistakes that injure their patients and, when they do, are more likely to be sued by their patients.

Greedy, arrogant doctors are in it for the money and the prestige.  They often see patients as cash cows and not people deserving of respect.  They arrange their practices in such a way as to maximize their income rather than to provide the best care possible.  For example, some greedy surgeons try to perform as many operations as possible during a day.  They book the surgeries back-to-back-to back.  They may even leave assistants to finish the surgery so they can go to another operating room and start on to the next surgery.

Speed is essential.  Pity the poor patient who develops a complication during or after surgery.  This patient is screwing up the schedule.  The complication needs to be addressed quickly, if the schedule is to be maintained and the money to be made. If a patient develops problems during the immediate post-surgery recovery phase, the surgeon may be in surgery with the next patient and unable to respond as quickly and effectively as they could have, if they were not distracted by the current surgery.  They may leave the post-surgical monitoring of the patient to assistants or to nurse practitioners or even to the poor recovery room nurse, none of whom are as qualified or knowledgeable as the primary surgeon.

Some of the most significant injuries I have seen have been among post-surgical patients who were not closely followed by the surgeon.  I have seen paraplegias, quadriplegias, death and lots in between.  When these tragic and often avoidable complications occur, you can count on the surgeon to blame the nurse, whom the surgeon claims to have been counting on to let him know if any problems developed.  There is often a “he said, she said” in which the nurse claims to have informed the surgeon of the developing problem while the surgeon, who does not deny the phone call, denies that the nurse accurately communicated the patient’s condition.

Greedy, arrogant doctors also cut corners in other ways.  Maybe they don’t read all of the test results they get back on their patients.  Maybe they don’t want to spend too much time listening to the patient’s history or current complaints.  After all, there are other patients waiting and the doctor’s time is valuable.  It is clearly more valuable than yours, which is the reason you arrive on time for your appointment only to find that the doctor is still seeing other patients scheduled before you.  You may sit for an hour or more before the doctor can get to you.  The more patients the doctor can pack into a day, the more money there is to be made.  Given a choice between the doctor having a gap between patients and scheduling patients on top of each other so there is always someone waiting, the greedy doctor knows exactly which choice to make.

It would be fair, if the jury could know when the defendant is one of the greedy jerk doctors is but that information is kept from the jury.  At the trial, they see a doctor who has been polished to a high gloss by an experienced defense attorney.  The doctor’s spouse sits next to the doctor and looks worried.  They often hold hands in the hallway so the jurors can see them on their way to the rest room or to lunch. They smile at the jury and give every indication of being the caring, compassionate kind of doctor.  It is no wonder the jury often responds favorably to the doctor and finds against the patient.  Juries want to believe their doctors are kind and compassionate and the greedy jerk doctor is more than happy to help maintain the illusion.

 

Posted in Doctors, Fee for Service, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, plaintiff, Secrecy, Surgical Errors |

Coronavirus Complicates Malpractice Cases.

August 17, 2020

To the list of the many, many damaging effects of the Coronavirus pandemic, you can add that it makes medical malpractice cases more difficult. In order to successfully pursue a medical malpractice claim, a patient must prove that the health care provider fell below the “standard of care” applicable to that provider under the circumstances. Of course, that is not the end of the proof needed. The patient must also prove that he or she was damaged by the breach of the standard of care and that the injury would not have occurred in the absence of the breach. This is where the Coronavirus comes in.

Duration of Isolation and Precautions for Adults with COVID-19 | CDC

The proof that an injury was caused by a breach of the standard of care is called, logically enough, “causation.” It is always one of the most difficult elements of proof in a malpractice case. Health care providers always say two things when they are sued: (1) “I did not do anything wrong.”; (2) “Whatever I did or didn’t do had no effect on you. Whatever bad thing happened to you had either already happened by the time I became involved or was going to happen no matter what.” Number (2) is the causation defense. Since medicine is the complicated endeavor that it is, the causation defense frequently carries the day for the defendant provider.

For example, in a missed cancer diagnosis case, and I have seen a lot of those, the patient’s claim is that, had the doctor diagnosed and treated my cancer in a timely manner, my life would have been extended or even saved. The doctor, of course, denies that he or she missed a cancer they should not have missed but argues, in addition, that the patient’s cancer was so advanced or so aggressive that the delay in diagnosis, if there was one, made no difference in the outcome; the patient was going to die anyway. Juries know little about cancer except that it is a really bad thing. Although this is changing over time as medicine advances, they expect cancer patients to die. No one argues that the doctor caused the cancer so juries are not too receptive to the idea that earlier treatment would have saved the patient’s life.

The Coronavirus makes all this worse. If you have been following the news about the virus, you know that it has many degrees of severity. Some victims don’t even know they have it and have no symptoms. Some victims have mild symptoms. Some victims become so seriously ill that they must be placed on a ventilator, a treatment that is very often unsuccessful and which often precedes the victim’s death.

In addition to the varying levels of severity, the Coronavirus can play havoc all over the body. Some victims develop pneumonia and respiratory problems. Some victims get rashes. Some victims experience multi-organ failure. Some victims have immune system overloads that cause the immune system to attack the victim’s body. Some victims have strokes or pulmonary emboli resulting from excessive blood clotting caused by the virus. Some victims have cognitive changes that some doctors are calling “coronavirus fog.” Some patients become comatose for a variety of reasons. Some patients experience heart damage. Some patients fall victim to other bacterial or viral infections.

When combined with the fact that it is now believed that many Coronavirus patients are never diagnosed with the disease, the virus gives health care providers another excuse for why their patient suffered an injury: “It was the Coronavirus.” Perhaps as we learn more about the virus, we can defeat this argument but, for the time being, it is just another way health care providers can send their injured patients away with nothing.

Posted in Blood Clots, Cancer, Doctors, Hospital Negligence, Hospitals, Infection, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical mistakes, Misdiagnosis, Nurses, science news, Sepsis, Stroke |

Hospital Ratings Can Be Misleading.

August 10, 2020

When it comes to hospital ratings, don’t believe everything you read. While I am a big proponent of doing some research about hospitals before being admitted to see if this is a place I want to go, not all hospital ratings are the same.

Coronavirus surge stressing Texas hospitals in major cities | The ...

When looking at a rating, you need to ask who is publishing it and how it was created. Was it published by the hospital itself or a group of hospitals? Was it published by a company that does public relations for hospitals? Was it published by someone who has an interest in the outcome of the rating? Was it published by someone reliable? Was it published by the government? Was it published by a consumer safety group?

The source of the rating and whether it is being published by someone with an interest in the outcome is important in determining how much to trust the rating. Ratings that come from the hospitals themselves or from companies working for the hospitals should be viewed with some skepticism. It is not that they are necessarily misleading but what they are telling you is what they want you to hear. It may be less than the whole story. On the other hand, ratings that come from consumer protection organizations or the federal government are less likely to be slanted in favor of one particular hospital or hospital group.

No matter the source of a hospital rating, you need to look behind it at the manner in which it was created. What is being rated? Is it just a survey of patient satisfaction or is it rating quality of care as well? What are the sources of the information that goes into the survey? Are the sources objective assessments or are they subjective in nature? Objective assessments should be given more weight than subjective opinions.

Medicare has a good hospital comparison tool, https://www.medicare.gov/hospitalcompare/search.html, that evaluates hospital care in a number of different areas. All you have to do is put in your Zip code and the site will list the various hospitals near you and provide their ratings and the basis for the ratings. Much of a particular rating is based upon objective data, although patient experience is one of the factors considered.

This is a good time to caution about patient satisfaction surveys. Patients appear to be most satisfied when the rooms are nice, the nurses are responsive and the food is good. The actual health care, the whole reason the patient is in the hospital, is not much of a factor, perhaps because it is so hard for the patient to actually evaluate the quality of the health care. A 2012 study, which appeared in the JAMA internal medicine website, looked at over 50,000 patients over a seven year period. It compared patient satisfaction with later outcomes, including rehospitalization, cost of care and whether the patient died during the study period. Among its surprising findings was that there was little correlation between patient satisfaction and how the patient did after being discharged. In fact, the patients who were most pleased with their hospital stay were more likely to end up back in the hospital and to be dead by the end of the study period. They were also most likely to have higher health care costs than those who were less satisfied.

Hospitals care a great deal about patient satisfaction surveys. They are working now on ways to get higher ratings. Importantly, these efforts do not involve improving the quality of care. Hospitals are hiring managers from the hospitality industry, placing greeters in lobbies and providing patients with access to premium channels on their room TV’s. Not only are they not focusing on better care in their efforts to improve patient satisfaction, they may be providing poorer care, if they believe it will make the patient happier. Good care may require the patient to be awakened, prodded and poked numerous times during the night. Needless to say, that is not the path to a happy, well-rested patient.

Always do your homework before choosing a hospital for an elective procedure but be careful about what you read and where it comes from. Not all ratings are created equal and not all ratings will tell you where to find the best care, which, of course, should be your most important concern.

Posted in General Health, health, Health Care Costs, Hospitals, Medical Costs, medical errors, Medicare, Nurses |

Arizona’s Notice of Claim Statute

August 03, 2020

Do you have a claim against the state of Arizona or a city or any other governmental entity or one of their employees? If you do, the Arizona state legislature has an unpleasant surprise in store for you. Rather than the two years that every other citizen of Arizona has in which to make a claim, you have only 180 days in which to file a notice of claim against the state, municipality, entity or employee. Miss that 180 day deadline and you lose your right to bring a claim.

Claims Handling Requirements by State – Arizona | Property ...

The state is the modern-day substitute for the king. In ancient times, the king could do no wrong and, no matter what the king did to you, you had no remedy. That ancient rule became the basis for the legal doctrine of sovereign immunity, which says you cannot sue the state without its permission. While all states have waived the doctrine of sovereign immunity to one degree or another, they don’t like it and they have put up as many roadblocks to these suits as they can. The requirement for a notice of claim in Arizona is one of these roadblocks and it is a very effective one.

I have lost count of the number of clients who have come to me with claims against the state or a municipality but who have arrived at my office more than 180 days after the event giving rise to the claim. They had no idea that they needed to move almost immediately after they were harmed or lose their right to sue. It is an expensive lesson for them but there is nothing I can do. The notice of claim statute has done it’s job in cutting off their right to sue.

Arizona’s notice of claim statute, A.R.S. §12-821.01, does not just allow any old notice to satisfy its requirements. The notice must be detailed. It must set forth the facts upon which the claim is based, the amount for which the claim can be settled and the facts supporting that amount. It must also be served on the employee and on people authorized to accept service of process on behalf of the entity. If any one of these very stringent requirements is missed, the notice of claim is ineffective and the victim loses the right to pursue the claim. The casebooks for Arizona are littered with cases in which a notice of claim was filed but did not meet each and every one of the stringent requirements of the statute and the case was dismissed. This is trouble for the lawyer filing the notice of claim, who usually ends up being sued over the failed notice of claim.

Filing a successful notice of claim is only half the battle. If the notice of claim is denied, and they almost all are, you must file your suit within one year of the date of the injury. Again, this is a year less than every other citizen has to bring a similar claim against a private person or entity.

Don’t fall victim to Arizona’s notice of claim statute. If you believe you’ve been injured by the state, a municipality, a school board or an employee of one of those entities, see a lawyer immediately. Time is passing and the lawyer will need time to investigate your claim, to collect the facts and to prepare and serve the notice of claim. The more time you can give the lawyer to accomplish these tasks, the more likely it will be that your notice of claim will be valid and you will be able to pursue your claim.

Posted in Lawsuits, plaintiff, Statute of Limitations |

Pulmonary Embolism and the Coronavirus.

July 27, 2020

According to the medical experts, one of the possible consequences of the novel coronavirus infection is the formation of blood clots. That makes this a good time to discuss pulmonary embolism, one of the more frequent causes of death resulting from misdiagnosis.

Pulmonary Embolism, Illustration - Stock Image - C027/7044 ...

It is reliably reported, and consistent with what I have seen in over 40 years of trying medical malpractice cases, that misdiagnosis is one of the leading causes of medical malpractice. Two of the most common misdiagnoses involve myocardial infarctions (heart attacks) and pulmonary embolism. These are certainly the two most common I have seen in my work.

Pulmonary embolism and myocardial infarction have some things in common that make them cases I can bring on behalf of a patient, or more likely, the patient’s surviving family members. In the first place, when their presence is missed by the treating health care provider, they can be, and often are, fatal. Secondly, while they have what are called “classic presentations” that most doctors or other health care providers would promptly recognize, they can also have atypical presentations that are harder to identify. The cases I see are usually atypical presentations.

A pulmonary embolism is a blood clot or a group of blood clots that find their way to the lungs and block blood flow through the lungs. If the clot is large enough, it can kill the patient in a matter of minutes. If it is small enough, it will have no effect and may never be noticed by the patient. However, even if clots are small, if there are enough of them, they can block off enough of the blood flow through the lungs to kill the patient.

We have two forms of circulation in our bodies. One is the venous circulation in which the oxygen poor blood is returned to the heart and then the lungs, where it exchanges its carbon dioxide for oxygen. The freshly oxygenated blood is then returned to the heart where it enters the arterial circulation. The arterial circulation then sends the oxygen rich blood to all the parts of the body.

Pulmonary emboli are creatures of the venous circulation. A clot develops in a vein, most often in the deep circulation of the leg. This is usually called a Deep Venous Thrombosis or DVT. The clot or a piece of the clot breaks free and is carried along with the venous blood to the right side of the heart. The right ventricle of the heart then pumps the venous blood and the clot into the pulmonary artery, which carries them to the lungs. Once in the lungs, the venous blood is pushed into progressively smaller vessels. The carbon dioxide/oxygen exchange takes place in alveoli, which are almost microscopically small. If a clot is present, the clot will get stuck when it can no longer fit through a vessel in the lung. When the clot gets stuck, it acts as a dam and prevents blood from getting to where it needs to go to be reoxygenated. If the clot is small, it will block off only a small portion of the lung. However, the larger the clot, the sooner it will get stuck and the greater amount of lung circulation it will block. Many small clots in the lung can have the same blocking effect as one very large clot. Many small clots can block off so much lung that the lungs cannot supply enough oxygen to sustain life.

A clot in the deep veins of the leg may produce pain, tenderness and swelling in the leg. If the clot produces these symptoms, it makes the problem much easier to diagnose. A non-invasive ultrasound of the leg will usually show the presence of the clot and the patient will receive some sort of blood thinner to prevent further clot formation and to allow the body to dissolve the clot. The clot may not produce any symptoms in the leg, however. Then the problem becomes harder to diagnose.

Once the clots reach the lung, and assuming they are not so large that they kill the patient right away, they can cause the following symptoms:

Shortness of breath that may occur suddenly.

Sudden, sharp chest pain that may become worse with deep breathing or coughing.

Rapid heart rate.

Rapid breathing.

Sweating.

Anxiety.

Coughing up blood or pink, foamy mucus.

Fainting.

These are the classic signs and symptoms of pulmonary embolism. If these signs and symptoms are all present and if they appear suddenly and are pronounced, they make the diagnosis much easier. In the cases I often see, however, the symptoms are more gradual, only some of them are present and the whole thing looks like the flu or a chest cold. When the symptoms appear gradually and look like the flu or a chest cold, it is much easier for a doctor or other health care provider to mistake the pulmonary embolism for some more benign condition, such as the flu or a cold and send the patient home.

If you have difficulty breathing, shortness of breath, fatigue, fast heart rate, get to an emergency department and don’t delay. It may be the coronavirus, it may be pulmonary embolism, or it may be nothing. Don’t take a chance. Get examined and tested. There are tests which can rule in or rule out a pulmonary embolism. Let the medical professionals decide what, if anything, is wrong with you.

Posted in Blood Clots, Doctors, heart attack, Lawsuits, medical errors, Medical Malpractice, medical mistakes, Misdiagnosis, Pulmonary Embolism |

Medical Record Confidentiality.

July 20, 2020

As patients, we have an expectation that our medical records will remain confidential. After all, there are few records more personal than our medical records, which may describe the most intimate details of our personal lives. Confidentiality is important to the physician/patient relationship because, without it, patients may be understandably reluctant to be honest in describing to the provider their history and problems. Unfortunately, technology and human nature are conspiring to make the desired confidentiality an illusion.

Limiting the Potential for the Unauthorized Accessing of Patient ...

As much as we might want our personal data to be confidential, the ways in which it is distributed, the way health care providers act and the attempts by dishonest people to hack our data all make our desires nearly meaningless.

Let’s start with who gets to see our records already. Over the last 50 years, medicine has changed. When we go to the hospital, we are cared for by a team of doctors, nurses, technicians, aides and on and on. Every breath we take is charted, or is supposed to be. A complete and accurate medical record is necessary to allow for different team members, who may never speak directly to each other, to know what is going on with the patient and how to best treat them. More and more these records are being kept only in hospital computers, These are EMR’s (Electronic Medical Records). Everyone with access to the hospital computer system and the patient ID number can see the patient’s records. You can find news stories about instances in which people with access to the hospital computer have improperly looked at a patient’s medical records. The news stories usually involve celebrity patients but it happens with other patients as well.

The documents we sign for our doctors and at the hospital specifically allow the doctor or hospital to share our records and information with our insurance company and with the businesses they contract with to provide certain services. Among these would be the vendor who sells and maintains the EMR system, outside laboratories, and the like. They are also required to provide our information to local, state or federal agencies under certain circumstances. All kinds of people at these various locations may see your records.

Health care providers themselves are often sources of confidentiality breaches. Any one of a patient’s providers may gossip with a friend about an interesting case and accidentally provide enough information for the patient to be identified. They may discuss a patient with a colleague when the colleague is not involved in the care. They may discuss a patient with a appropriate person but do so in a careless way. Providers are sometimes overheard in the elevator or the cafeteria or the hallway or the locker room discussing confidential patient information. Studies have found that these are actually some of the most severe breaches.

Then there are the hackers who invade the medical records of hospitals, insurance companies, healthcare providers to steal personal information they can use to make money. In 2019 alone, the records of nearly 35 million patients were compromised by hackers. Some of these hacks went on for years before they were discovered. It is almost certain that there are records being reviewed right now by hackers, who have not been discovered by the system operator. There are so many companies with access to records that there is a vast and fertile field for hackers to exploit to steal information. Sometimes, you don’t even need to be a hacker to get protected patient information. Sometimes, the company accidentally leaves the information unprotected on the internet for anyone to see.

Then, of course, there is plain old fallible human nature and the inevitability that human beings occasionally make mistakes. Some of these mistakes end up exposing confidential information on an individual scale. A provider may disclose sensitive information to a family member. In one case that made the news, the confidential information was disclosed to the ex-wife because the provider had not updated its records. Or the provider may send a letter or leave a voice mail in such a way that someone other than the patient gets the information. This kind of error is most likely to cause great personal distress.

There is not much you can do to make your records more secure. That is the system and we are fools, if we do not recognize the limitations inherent in it. We can and should, however, make sure our records are accurate. More and more patients can see what the provider is writing or has written and ask for corrections to be made. Providers may be resistant to actually correcting records but that is a subject for another day.

Posted in Doctors, electronic medical records, Fraud, Health Insurers, Hospitals, medical charts, medical ethics, Nurses, Secrecy | Tagged , |

Change Is Coming To The Hospital.

July 13, 2020

According to an excellent piece which recently appeared in the Wall Street Journal, the coronavirus pandemic has upset the way in which hospitals have arranged their businesses. In hard hit areas, ICU’s have filled up and other departments in the hospital have been forced to adapt to care for patients sickened by the illness. Emergency departments have become jammed up with sick patients when there has been no place to put them. Non-Covid patients are staying away from emergency departments for fear of catching the disease. Elective procedures have been cancelled or postponed. All of this has seriously disrupted the normal business model and is forcing hospitals to rethink the way they treat patients and provide services.

Telehealth helps one hospital reduce ER overflow hours from 1,700 ...

There is some very innovative thinking going on right now. Hospitals plan to use technology to a greater extent in the future to monitor patients and to reduce the risk of transmission of highly contagious diseases. One example is to give mobile devices to patients who have been diagnosed with a disease and are isolating at home so they can enter their vital signs and symptoms. Providers at the hospital can monitor these patients and determine when or if to bring them in for treatment. This procedure can also be used for any patient who needs monitoring but does not need to be in the hospital to receive active treatment. Patients recently diagnosed with heart disease is one of the examples mentioned in the article.

Hospitals are also likely to use separate entrances for different categories of patients to avoid the problems associated with mixing infected and uninfected patients. Patients entering the hospital for elective surgery or for childbirth will be directed to enter the hospital through a dedicated entrance away from the entrance used for potentially infected patients.

Similarly, traffic patterns and corridors are being designed to avoid to the greatest extent possible exposing uninfected patients to those who have been diagnosed with an infection.

Robots will be used to deliver supplies to patient rooms and to perform certain routine tasks. This will reduce exposure for health care workers.

Telemedicine will be used more aggressively. It will be used to assess patients before they arrive at the hospital to determine if they need immediate treatment and, if they do to what hospital entrance they should be directed. It will be used to reduce the number of doctors in patient rooms during rounds. One doctor will enter the room and interact with the patient while the other doctors or care providers who, in earlier times would have gathered around the patient bed, will be watching and participating by video link.

The ability to ramp up capacity in an emergency has proved to be important. Hospitals are looking at a number of different ways to achieve this. Among some of the innovative solutions is the use of mobile pods that can be fitted up with hospital beds and equipment and delivered to the hospital in times of need. These can even be set up for use as an ICU. Some hospitals that used adjoining space for additional capacity during the recent surge are returning those spaces to their original purposes but leaving behind equipment and infrastructure to allow for a quick return to hospital use in the event of another surge.

Most of what I have been discussing involves making use of existing infrastructure or adding temporary space. New hospital planning and construction will likely be different going forward so as to create infrastructure that can be quickly repurposed in the event of a surge. Rush University Medical Center is Chicago is already ahead of this curve. It designed the main lobby of its recently opened tower so that it can be converted into patient treatment areas in the event of a surge. It has medical gases, suction and electrical built into the support pillars to allow this to happen.

As with so many things in the age of Covid, hospitals will not return to the old normal. There will be a new “normal,” the nature of which we are just beginning to see.

Posted in Doctors, General Health, health, Hospitals, Medical Devices, science news | Tagged , |

Why I Couldn’t Take Your Medical Malpractice Case.

July 06, 2020

I had the opportunity recently to speak with a woman who believed she had been the victim of medical malpractice in connection with a repair of her hip. She had sent me a detailed description of what had happened to her, of her concerns about her treatment and of the limitations she was now experiencing as a result of the hip repair. I had reluctantly turned down her case and she wanted to know why. We had a good talk and, when we were done, she understood why I could not take her case. I thought it might be helpful to others to understand the analysis I have to do when presented with a potential case.

4 Factors Necessary to Prove Causation in a Medical Malpractice Claim

The first thing to keep in mind is that doctors and hospitals win 85% to 90% of cases that go to trial in Arizona. The success rate for doctors and hospitals is even higher, if your case has to be tried outside Maricopa or Pima counties. The first thing I have to do when I look at your potential case is ask whether it is likely to be one of those 10-15% that will be successful at trial. I do not do clients a favor, if I take a case that is likely to be one of those that will lose at trial. Not only do my clients have to undergo the stress of having a lawsuit pending for a couple of years, if we lose, the court will enter a judgment in favor of the defendants for their “taxable” costs. These “cost” judgments will usually be in the range of $20,000 to $30,000. This is no small amount, even for clients who have significant assets.

Sometimes potential clients say they really don’t want to go to trial and urge me to take their case so they can get a settlement short of trial. They are usually quite confident that the doctor or hospital will not want to take the case to trial and will offer a settlement. They are almost always wrong. Doctors, hospitals and their insurance companies know they have a high chance of success at trial, just as I do. For a case to settle, doctors usually have to give written consent to the insurance company. Since a settlement will result in a report to the Arizona Medical Board and to the National Practitioner’s Data Bank, both of which are black marks on the doctor’s record, doctors are reluctant to give consent to settle, unless the case against them is a strong one. I make it a practice not to take cases I am not willing to take all the way to trial. If I take your case, I won’t dump you on the courthouse steps, if the doctor or hospital does not want to settle. Since I am going to be making a large investment of time and money in your case, it has to be one I believe in and am willing to try on your behalf.

To be one of those cases, we are likely to win at trial, there must be clear evidence of medical malpractice. This sounds a lot easier than it is in actual practice. Very often what a doctor or other health care provider should do in a given situation is a matter of judgment, about which competent professionals can disagree. If competent professionals can disagree about what should be done, the doctor wins the case, if he or she chooses any one of the acceptable choices. No matter how clear you may think it is that the doctor made a mistake in your care, the defense team will be able to find someone to say that reasonable doctors could disagree and do it the way your doctor did. If the jury believes them, you lose.

It is not enough to have clear evidence of medical malpractice. you must also have a very significant, permanent injury. If the likely verdict in your case is less than $400,000, it is very difficult to make the case worth your while to pursue. If I succeed for you, and only if I succeed, I receive a fee for the work I have done. That fee is usually 40% of whatever I recover for you, either by way of trial or settlement. If I have to do an appeal for you, the amount of the fee goes up to 45%. If I succeed, I also reimburse myself for the costs I have advanced on your behalf. These are amounts I have advanced for filing fees, for costs associated with travel and depositions but mostly for the fees expert witnesses charge me to consult with me on your behalf or to give a deposition. The more defendants we have in your case, the greater will be the number of experts and depositions and the higher will be the costs. The costs can easily exceed $100,000. You can do the math yourself. In a case in which the recovery is less than $400,000, by the time my fee is paid and the costs are paid, there is very little left for the client. How is that fair to the client? I cannot accept a case in which there is very little chance of getting the client a fair recovery at the end.

There are many more factors I have to consider, too many to list them all in this post. Suffice it to say, I turn down over 100 cases presented to me for every one I am able to take. This is why I just shake my head every time I hear some doctor or some politician saying there are too many frivolous malpractice cases. In fact, the opposite is true. There is rampant medical malpractice but only those with strong evidence and a significant permanent injury are going to be able to find a competent, experienced lawyer to represent them. All those people who are injured by medical malpractice but who do not have strong proof or whose injuries are not severe enough are not able to get justice and I am very sorry about that. There ought to be a better way.

Posted in arizona certified medical malpractice lawyers, Arizona Medical Board, Doctors, Finding a Medical Malpractice Lawyer, Hospital Negligence, Hospitals, Lawsuits, Malpractice costs, Medical Malpractice, Medical Malpractice Case Value, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, Nurses, Valuing Damages in Medical Malpractice Cases | Tagged , |

The Hospital Says, “This is not a bill,” But You May Still Have to Pay It.

June 29, 2020

If you are injured in an automobile accident, you may find yourself at the Emergency Department. Maybe your injuries are minor enough that you can be discharged to home. Maybe they are more serious and you need to be admitted to the hospital. Either way, thank goodness, you have health insurance to pay for the hospital bills. After you have been home for a while, a letter comes in the mail. It is from the hospital or someone representing the hospital. It says, “This is not a bill,” and it is not. It is a lien on any recovery you might get from the person who caused you to be injured in the accident.

The Steps You Need to Take Following a Car Accident – USA TODAY ...

“What is this and what is happening?” you may ask yourself. I have insurance and my insurance has paid the hospital in full. Why does the hospital have a right to any money I might get from the person who injured me? The answer is a perversion of Arizona law that allows hospitals to extort money from you, even though they have received everything they agreed to collect from your insurance company.

Almost every health insurer enters into agreements with local hospitals which establish the amount or percentage of the bill the health insurance company will pay, if one of its insureds ends up in the hospital. If you have seen a hospital bill and compared it to the Explanation of Benefits you receive from your insurance company, you will have seen that the hospital has agreed to accept about 8% to 10% of the hospital bill in full settlement for the services it has provided. The hospitals that your insurance company has made agreements with are said to be “in network.” If you go to a hospital that is in network, the insurance company may reward you with a smaller or no co-pay in return for helping it get the discounts from the hospital. If you are in an accident out of state or are taken by ambulance to a hospital out of network, the insurance company may not get a discount and you may have to pay a bigger portion of the total bill. These agreements between hospitals and the health insurance companies are closely kept business secrets. You can rest assured, however, that the amount the hospital agrees to accept is more than enough to cover its costs and to allow it to make a profit.

Section 33-931 of the Arizona Revised Statutes quite properly provides that health care providers may have a lien on any recovery made by a person to whom they provide medical services. The lien is to be in the amount of their “customary charges” for the treatment given. The problem arises when the hospital claims that its “customary charge” is not the amount it agreed to accept from your insurance company. Instead, it claims its “customary charge” is the “sticker price” at the bottom of the bill, before the discounts the hospital agreed to give. Of course, very few people ever really pay “sticker price” for a hospitalization. Those without insurance don’t have the money to pay while those with insurance usually receive huge discounts off the “sticker price.”

Should the accident that sent you to the hospital not be your fault and you make a successful claim against the person who injured you, the hospital stands there with its lien and wants to get paid the difference between its “sticker price” and the amount it agreed to take from your insurance company. It disingenuously takes the position that it is not you who is paying for its lien; it is the person who injured you. Of course, this ignores the reality that its lien must be paid out of the money the other driver is willing to pay you for the injury you suffered.

If you want to keep your money, your only option is to go to court and defend against the lien by pointing out that the “sticker price” is not its customary charge. Its customary charge is the amount it agreed to take from your insurance company. The hospital knows that by now you are tired of lawsuits, tired of waiting, and just want to take your settlement money or your verdict and go home. You can’t do that without resolving the hospital’s lien. The hospital doesn’t want a lawsuit with you either. It knows its position is weak. For that reason, it is always willing to discount the amount of its lien, in return for your prompt payment. Any payment it receives is like manna from heaven. It goes right to the bottom line. It is new money over and above what the hospital agreed to accept from your insurance company. You are the only loser here.

Write or call your state representative or senator. Ask that this legalized extortion be stopped. Ask that the law be amended to provide that, if the hospital or health care provider has agreed to accept a certain amount for its services and has been paid that amount, it has no lien on your recovery.

Posted in Fee for Service, Health Care Costs, Health Insurers, Hospitals, Medical Costs, plaintiff, Secrecy | Tagged , , |

Our Drug Development Model and Drug Supply Chain Are Broken.

June 22, 2020

One of the lessons of the COVID-19 pandemic is that our drug development model and drug supply chain are broken.  Our western capitalist system has served us well for many years.  It provided products at a low price, which allowed us to enjoy a good standard of living.  It does not do everything well, however.  The profit motive has produced a dysfunctional drug development model and has also produced less-than-robust supply chains that rely on foreign manufacturers to produce the drugs we need.

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Here are just some examples of drug development and supply dysfunction.

Orphan Drugs.  Orphan drugs are drugs created to treat rare illnesses.  Under normal market conditions, a manufacturer cannot sell enough of the drug to make a profit.  This requires either government intervention to support the sale of the drug by direct payments to the manufacturer or charging an extremely high price for the drug to those unfortunate enough to need it.

Orphan Illnesses.  Orphan illnesses are a corollary of orphan drugs.  They are illnesses that are so rare that there is no money to be made in developing, licensing and selling a cure without government assistance.  While no illness is a good thing, it can be truly tragic to contract a rare one.  Victims of rare illnesses and their families regularly stalk the halls of Congress trying to drum up support for research into cures and treatments for their disease.

Leveraging Generic Drugs.  Sometimes there is a generic drug that is used to treat a rare condition.  It has been on the market for a long time and is relatively inexpensive.  Often, because of the rarity of the disease, it is the only drug being sold to treat it.  Some unscrupulous investors have taken to buying the company making the drug and then raising the price to astronomical levels.  Even if another manufacturer decides to begin making and selling the drug at reasonable prices, there will be a period of time when patients  have no choice but to pay the artificially inflated price.  Of course, there is no guarantee the new manufacturer will decide to sell at the old price.  It may just decide to join in fleecing the patients.

Patent Abuse.  Our patent system is intended to reward innovation by protecting the innovator from competition for a limited period of time.  In the case of pharmaceuticals, at the end of that period, new manufacturers can enter the field and market generic versions of the drug.  The abuse arises when the original manufacturer applies for multiple patents over time after making slight tweaks to the product, thereby unfairly extending the protection period.  Another form of patent abuse involves the original manufacturer either paying potential competitors to stay out or suing them and alleging patent violations.  Sometimes, just the threat of an expensive patent suit can be enough to keep out competitors.

Race to Cut Costs.  No manufacturer wants to pay too much to manufacture its product.  In drug manufacturing, as in so many other forms of manufacture, that has meant moving production overseas to a country with lower labor costs.  This has the unfortunate consequence of making our drug supply vulnerable to unrest, labor problems or shipping problems elsewhere in the world.  If a cure for coronavirus is developed in Asia and is in limited supply, you can expect to see the countries of Asia preventing or limiting its export to the United States.

Fakes and Knock-offs.  Federal agents routinely discover and seize fake versions of popular drugs.  These fake versions may look just like the real thing and may even be sold by reputable vendors and drug stores.  In rare cases, they may actually work but, more often than not, they are just pretend versions put on the market to steal from patients.

If there is a silver lining in the COVID-19 crisis, it is the light it is shining upon the failings of our drug and medical supply chains.  These medicines and supplies are too critical to the health of our country to be left to the “invisible hand” of the capitalist system.  We need to make sure that we have a strong development and supply chain to assure we have the drugs and supplies we need in the future.  No more relying on some shady Chinese manufacturer to make N-95 masks that may not even work.  This is going to require federal intervention.  We need to learn from our mistakes.

Posted in drug companies, Fraud, health, Health Care Costs, Lawsuits, Medical Costs, Medical Devices, Medicare, Pharmacies, Secrecy, Vaccines |