Medical Malpractice News and Views


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

We Are At The Bottom. Again. Still.

August 09, 2021

USA!  USA!  We’re Number –  Eleven?

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

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

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

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

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

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

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

Physician Conflicts of Interest

August 02, 2021

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

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

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

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

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

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

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

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

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

 

 

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

The Never Event.

July 26, 2021

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

The Correct Use of Jamais in French

Never events are grouped into seven categories.

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

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

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

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

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

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

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

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

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

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

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

 

 

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

The Dishonest Hospital

July 19, 2021

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

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

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

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

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

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

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

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

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

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

 

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

The Arizona Legislature Does Not Like You.

July 12, 2021

The Arizona legislature does not like you, if you have been a victim of medical malpractice.  They have enacted several laws which apply only to victims of medical malpractice and which are intended to make it more difficult for you to be compensated for the harm you experienced.

Tuesday's biggest loser will seek revenge at the Arizona Legislature

Arizona began its life as a state as a bastion of progressive populism.  We had three provisions in our territorial constitution which gave power to the people:  Recall, referendum and initiative.  These provisions were so anathema to the moneyed interests that even then ran the United States that Arizona was prohibited from becoming the 48th state until we removed those provisions from the constitution.  We did, they let us in, and our state leaders promptly put them back in the constitution.  Business leaders have been mad ever since.

Another provision that makes business interests see red and which therefore animates the Republicans who have run our legislature for years forbids any limits on the amounts a person can recover for personal injury or death.  Arizona Constitution, Article 2, Section 31.  Many states have imposed limits on the amount of damages a person injured by medical malpractice can recover.  Our legislature would love to do the same but cannot because of the state constitution.

On three separate occasions since I have been a lawyer, the business interests in this state have tried to get the people to agree to a constitutional amendment to eliminate this restriction.  Three times they have failed.  In each case, the charge was led by the insurance industry, the doctors and the hospitals.  In each case, they claimed that calamity and catastrophe were just around the corner if runaway juries were not curbed.  The public did not bite so they adopted other measures, some of which apply to all personal injury victims and some only to medical malpractice victims.

One change in the law, which applies to all personal injury victims, shifted the risk that a defendant would not be able to pay for the injuries he caused.  Since the time of statehood, all of those whose conduct caused an injury were held jointly liable for the injury.  If one of the defendants did not have the money to pay the judgment, the injured person could collect from any of the other defendants.  The innocent victim would be made whole.  The risk that one of the defendants would not be able to pay was imposed on the other people who caused the injury.  In the 1980’s, the Republicans in the legislature turned that rule on its head.

Now the innocent victim bears the risk that one or more of the defendants cannot pay for the injury he caused.  Now the law requires juries to determine how much each defendant contributed to the injury and allows that defendant to pay only that share of the damages.  If a deep-pocket defendant can persuade the jury that the other defendant was mostly at fault, it can escape having to pay all but a little of the damages.  If the other defendant is broke or doesn’t have enough insurance to cover the damage, too bad for the person who got injured.  He should have chosen the people who hurt him more wisely.  All this was accomplished in the name of fairness, of course.

More was in store in the 80’s and 90’s for victims of medical malpractice.  If you are injured in a car accident and have been wise enough to get health insurance, the person who injured you may not take advantage of your foresight or the money you paid to buy that insurance.  When you ask to be paid for your medical bills, the Collateral Source Rule prohibits the jury being told about your insurance.  If your policy with the health insurance company does not require you to reimburse it, you get to keep the money awarded for your medical bills.  This is not the case, if you were injured by medical malpractice.

If you were injured by medical malpractice, the doctors or hospital who injured you get to tell the jury that your medical bills were paid by insurance.  If you missed time from work due to the injury they caused, they get to tell the jury if you received disability insurance payments or if your employer paid you for the time you missed.  This rule change, which applies only to medical malpractice cases, has had exactly the two effects the legislature intended.

In the first place, it allows the doctors and hospitals to say you haven’t really been injured very much and that there is no real reason to find in your favor at all.  Telling the jury about your insurance reduces the likelihood that the jury will find for you in the first place.

Second, if the jury finds in your favor anyway, it is unlikely to award you the bills which have been paid for by the insurance you purchased with your own money.  At the end of the day, there are fewer jury verdicts for malpractice victims and, when there are, they are smaller than before.

There are a host of other rules which apply only to persons who sue because they have been injured by medical malpractice.  By no coincidence, they all favor the doctors and hospitals who just happen to contribute to the campaigns of the legislators down at the capitol.

At some point, the pendulum may swing back and Arizona may again be represented by politicians who favor the people over the corporations.  It happened before in our state’s history and it may happen again.  Until it does, the corporations and the medical industry will continue to enjoy every advantage the legislature can think to give them and the people who have been injured by medical malpractice will just have to suck it up.

 

 

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

The Bad Result.

July 05, 2021

Medicine is an art, not a science.  There is far more that we do not understand about the human body than we do understand.  When you receive medical treatment or undergo a surgical procedure, no one makes you any guarantees.  Doctors hope for a good result when they treat you but everyone understands that the actual result may be far less than what the doctors were hoping for.  This has a definite application in medical malpractice cases.

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There are two main elements of proof in a medical malpractice case.  The first is that the health care provider did something wrong.  She or he delivered care which was substandard.  The second element is that, as a result of the substandard care, the patient suffered an injury, which would not have occurred in the absence of the substandard care.  This is where the concept of the bad result comes into play.

If you are going to make a successful medical malpractice claim, you must prove that your injury was not just a bad result, but was the result of substandard care.  This is often a very difficult thing to prove.  Why is that?

The first and most important reason is that medicine is complicated.  Members of the jury are almost always lay people with little to no background in medicine.  At trial they are going to hear from competing experts for the patient and the health care provider.  The patient’s expert will testify that the patient’s injury was the result of substandard care.  The provider’s expert will say just the opposite.  Understandably, the jury may be completely befuddled by these competing opinions.  They can’t both be right.  Which one should they accept as true?

The problem for the patient is that the judge will instruct the jury that the patient has the burden of proving “by a preponderance of the evidence” that the injury was the result of substandard care.  “Preponderance of the evidence” means the patient must prove his or her case is more than 50% likely to be true.  The judge will tell the jury that if they conclude the case is a tie and that the experts were each believable, they must find for the defendant provider.

A second significant problem is that there are certain conditions which are considered to be “risks of the procedure.”  A “risk of the procedure” is some adverse consequence, which can occur even if everyone does everything right.  For example, in a laparoscopic procedure in which surgical instruments are inserted into the abdomen, one of the risks of the procedure is bowel perforation.  Even if the surgeon is the best in the world and does everything right, sometimes one of the instruments inserted into the abdomen will puncture the bowel.  This is an injury which occurred even though the care was good.  Infection is another risk of virtually every medical procedure.  Even if everyone does everything right, a certain number of patients will get some type of infection after a surgical procedure.

If your injury is one of those considered to be a risk of the procedure, your chances of winning are even less than usual.  Just because something is a risk of the procedure does not mean that, in your case, it was not caused by substandard care.  It does make it a lot harder, however, for the jury to find that the injury was not just one of those things which happens even when everyone is careful.  This is why experienced malpractice attorneys usually will not take infection cases; it is almost impossible to get a jury to find that an infection was the result of substandard care.  It can happen but the stars must be perfectly aligned.

Furthermore, while the patient’s experts are limited to testifying only to things which are more than 50% likely, in order to carry the patient’s burden of proof, the provider’s experts get to testify to possibilities that may only have a 1% or 2% chance of being true.  This is another substantial advantage for the defendant provider who can flood the jury box with possible causes for the patient’s injuries, which are unrelated to the provider.

As you can see, human nature, human anatomy and the limits of our knowledge all conspire to make it difficult for a patient to prove that his or her injury was caused by substandard care.  This is one of the reasons why doctors win 85-90% of all medical malpractice cases that go to trial, even when the facts are strong for the patient.  The doctor tells the jury that the patient just got a bad result and the jury, try as they might to do the right thing, accepts that testimony.  Without a very strong case with clear evidence and a serious injury, a patient does not have much of a chance in court.

 

 

 

 

 

Posted in Doctors, Hospital Negligence, Hospitals, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice lawsuits, medical mistakes, Medical Negligence, Nurses, Surgical Errors, trial, Verdicts |

The Hospital Death.

June 28, 2021

People die in hospitals.  It is a fact of life.  Sometimes they die in spite of the very best medical care that we have to offer.  Sometimes, however, they die because they did not receive the care they should have.  Sometimes they die because of medical malpractice.

Death and Dying

If you have lost a loved one to a hospital death, please accept my condolences.  It is never a happy event.  Sometimes, the death has been expected for a long time.  Sometimes, however, it comes as a great shock.  Some of the ones that come as a great shock should not have happened.  They are the result of medical malpractice.  The number of annual hospital deaths that are the result of avoidable medical mistakes has been variously estimated to be as low as 22,000 and as high as 250,000.  One thing I can tell you is that, if your loved one died because of medical malpractice, no one at the hospital is going to tell you.  You will have to figure it out on your own.

I review many hospital deaths in my practice.  Prospective clients come to me and ask whether their loved one died because of medical malpractice or not.  One of the first questions I ask is whether there was an autopsy.  If there was not, it will be very difficult to prove that the death was due to medical malpractice.

It doesn’t matter what the death certificate says.  It doesn’t matter what the diagnosis was in the medical records.  If we file a lawsuit, the defendants will offer expert witnesses to say that the death certificate was wrong and so was the diagnosis in the chart or, even if the diagnosis in the chart was correct, that was not the cause of death.  The cause of death according to these experts is always something completely unrelated to the defendants.  If you are thinking that there may have been a medical error involved in the death of your loved one, you will almost always need an autopsy to prove it.

The autopsy is, of course, only the first step.  It may or may not conclusively establish the cause of death.  Even if it does, the question will be whether the death was the result of malpractice.  To answer that question, you are going to need to collect the medical records.

The first place to start is with the hospital chart.  You are entitled to a copy of the chart, if you are a spouse, hold a medical power or other power of attorney or are the son, daughter or parent of the deceased.  Make them give it to you on a disc so you don’t have to pay for copying.  If your loved one was receiving active treatment before the hospitalization, get the records of those doctors as well.

You can count on the doctors presenting a united front and denying the existence of any mistakes.  From their point of view, it is in no one’s best interest to criticize a fellow physician.  The committees that run the hospital are made up of the doctors who practice there.  Speaking ill of another doctor in the hospital is a good way to make enemies and enemies in a hospital setting can destroy doctor’s ability to practice at the hospital.  Better to go the “hear no evil, see no evil” route.

It can be a little different with the nurses.  In medical malpractice cases, the nurses are expendable.  Often the doctor’s defense is that the nurse, who was at the bedside, failed to keep the doctor informed of the patient’s condition.  There is no penalty for a doctor who blames the nurses and they do it frequently.  On the other hand, nurses will rarely blame the doctor.  They may testify that they did keep the doctor informed but they won’t go out and throw the doctor under the bus, unless the doctor makes their conduct an issue in the first place.

Once you have all of the records, take them and the autopsy report to an experienced medical malpractice attorney.  You will need someone who knows how to read medical records, understands anatomy and medicine, and has access to good expert witnesses to offer opinions about the care given and its relationship to the death.

One more word of caution, just because a lawyer says she or he is an experienced malpractice lawyer doesn’t make them one.  The really good malpractice lawyers tend to concentrate on medical malpractice and a few other complex areas of personal injury.  An attorney who claims to be an expert in many areas is probably an expert in none.  Go to the attorney’s web site and review their qualifications and their areas of practice.  You can learn a lot.

 

 

Posted in Autopsy, disclosure of medical mistakes, Doctors, electronic medical records, Finding a Medical Malpractice Lawyer, Hospital Negligence, Hospitals, Lawsuits, medical charts, Medical Malpractice, medical malpractice cases, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, Nurses, Secrecy |

When Your Baby Dies Or Is Damaged During Childbirth.

June 21, 2021

There are few things more devastating than a baby who dies or is badly injured during childbirth.  What should have been a happy occasion for celebration turns into tragedy.  The gaily decorated room at home prepared in anticipation of the arrival of the new baby is now a sad reminder of what could have been.  Sometimes, it is just God’s will that the baby will die or be damaged.  There is nothing anyone could have done.  Other times, the baby’s death or injury is due to human error.  That is when parents should come to see me.

Image result for newborn baby

Human mothers have been giving birth to babies for hundreds of thousands of years.  Childbirth is a dangerous time for baby and for mother.  Many mothers died during childbirth over those hundreds of thousands of years.  It is only in the last hundred years or so that medicine in the developed world has been able to make a difference in whether a baby makes it or not and whether mom will be there to raise her baby.

The men and women who work in Labor and Delivery units at our hospitals are well-trained and are usually experienced.  They are caring people.  They want to do the right thing.  They want to send mothers home with healthy babies.  But when you come to work every day and care for laboring mothers, it sometimes becomes routine.  It sometimes becomes a job.  It sometimes gets taken for granted.  That is when mistakes happen.

Nurses and obstetricians are just like us.  They have their good and bad days.  They have all the worries and cares about their families and about how to pay the bills as the rest of us.  Unfortunately, when they have a bad day or get distracted by personal issues, something really bad can happen.

There are lots of factors that lead to bad outcomes in Labor & Delivery.  Communications are always a potential problem.  The labor and delivery process is an active one.  Things are constantly changing.  Mother is laboring and, in the best case, moving toward a vaginal delivery of her baby.  The doctor is often not at the bedside as the mother labors.  It is the responsibility of the labor nurse to monitor the mother and to keep the doctor advised of all pertinent information about the mother and the baby.  The doctor has to rely on the nurse to pay attention, to accurately assess what is happening and to accurately report it to the doctor.  Mistakes and misunderstandings can and do occur.

Miscalculations are another problem area.  The doctor does not need to be present during all parts of the labor but does need to be present in the event of problems and does need to be present at the delivery.  Sometimes, however, baby surprises everyone and comes before she is expected.  Sometimes that is before the doctor can get to the hospital.

Doctors make the big decisions.  When they fail to make the correct decision or fail to respond to a developing situation, sometimes nurses are reluctant to call them out.  There is a great difference in the power of the doctor compared to the power of the labor nurse.  The doctor may discourage the nurses from calling him or her too often with reports of the baby’s progress.  The doctor may intimidate the nurses and make them hesitant to second guess the doctor’s decisions.  Sometimes bad things happen that could have been avoided had the nurses spoken up.

Too much reliance on technology can be a problem as well.  If no alarms are going off, nurses may assume everything is going well when it isn’t.  They may misinterpret the fetal heart monitor strips as showing a well-oxygenated baby with good reserves when, in fact, the opposite is true.

The bottom line is that labor and delivery is a dynamic process in which things are constantly changing and in which something can go wrong very quickly.  The doctors and nurses involved in monitoring the labor and delivering the baby can make mistakes, which may result in the death of the baby or a serious injury.  If your baby died during childbirth or was born with a serious injury, you should give me a call.  We can get the records and see whether your tragedy was unavoidable or whether someone did not do what they should have done.

Posted in Birth Injuries, Doctors, Hospital Negligence, Hospitals, medical errors, Medical Malpractice, medical malpractice claims, medical mistakes, Nurses |

Doctors Behaving Badly.

June 14, 2021

Most of the instances of medical malpractice I see in my practice are of the unintentional variety.  Someone made a mistake that ended up hurting a patient.  There is another variety of medical malpractice, however, and my partner and I do see it from time to time.  It is the intentional action by a doctor in violation of medical ethics which harms his (it is usually a male doctor) patient.  That is what I want to talk about today.

Medical Ethics For Dummies: 9780470878569: Medicine & Health Science Books @ Amazon.com

Doctors who are defendants in medical malpractice cases benefit from the fact that the public has a great deal of respect for doctors.  Members of the public usually like their own doctor and trust him or her.  They usually don’t hear much about bad conduct by doctors and assume, incorrectly, that it only exists in extremely rare cases.  Sadly, it is not all that uncommon.  One reason the public does not believe this kind of misconduct is common is that it does not get reported to the authorities all that often and is reported in the press even less often.  Not all doctors should be respected by the public but the bad ones get the benefit of the doubt created by the good ones.

There are three common forms of intentional ethical violation by doctors and they cover a lot of territory.  The first is the improper prescription of dangerous drugs.  The most obvious example of this is the doctor who runs a pill mill.  The second is improper sexual contact.  This can range anywhere from touching to flat out rape of the patient.  Last is the unnecessary medical procedure or test.  In almost every case, the doctor knows he is acting in violation of ethical rules but does so anyway for some form of monetary or emotional gain.  Here is a link to an excellent analysis of cases of serious ethical violations by doctors over an eight year period in the early 2000’s.

There are a number of reasons why these actions by doctors are not reported to the authorities.  When the ethical violation is prescribing controlled medications to patients who should not be getting them, the patients receiving the medications are often addicted and looking for drugs.  They actively want the doctor to prescribe for them and do not want to do anything to risk the loss of their source.  When these doctors are found, it is often because of computer programs that look for patterns of prescriptions.  It is reported in the article above that CDC data shows that 62% of prescribed opioids are prescribed by only 3% of all physicians.  While there may be other motivations from time to time, such as trading drugs for sex, most of the overprescribing is done for money.

Sexual improprieties with patients are also believed to be substantially underreported.  In the first place, it is believed that much sexual assault in the general community is not reported for a whole host of reasons, including shame, fear of disbelief, the desire to avoid publicity and fear of that old tactic of blaming the victim.  The factors which discourage the victims of sexual assault from reporting it in the general community apply even more strongly when the sexual predator is a doctor.  Even when sexual improprieties by doctors are reported, there may be no action taken.  A good example is the Larry Nassar case at Michigan State University.  Dr. Nassar sexually abused many young, female gymnasts over decades.  Despite repeated complaints, no action was taken for many, many years.

The Nassar case is not an isolated one.  The University of Southern California just paid out over $1 billion in settlements to the many young women who were sexually abused by Dr. George Tyndall, a university employed gynecologist.  Although abuse by Dr. Tyndall was reported to the university in the early 1990’s, the university did not report Dr. Tyndall to the medical board which allowed him to continue to practice there and abuse women until 2016.

Unnecessary medical procedures are another form of unethical behavior that is substantially underreported.  The reasons are obvious.  Only in rare cases do patients ever discover that they have been the victims of an unscrupulous surgeon who has performed unnecessary procedures on them.  Only when another doctor just happens to review charts of the unethical physician are these matters ever discovered and, even then, the physician may have misrepresented information in the chart to make the treatment or test appear justified.  One example of this type of ethical violation was uncovered in Michigan a few years ago when an office manager reported that his oncologist employer had told a number of patients that they had cancer when they did not and had administered chemotherapy to them for the non-existent cancer.

If you believe that you have been the victim of a predatory doctor, don’t just take it in silence.  Report it to someone.  Studies have shown that behavior like this is rarely a one-time thing.  It is usually repetitive behavior and reporting it may prevent others from being victimized.  You should also call an experienced medical malpractice lawyer to inquire about your rights and whether you are eligible for a monetary recovery.

 

 

Posted in Arizona Medical Board, Cancer, disclosure of medical mistakes, Doctors, Fraud, Lawsuits, medical charts, medical ethics, Medical Malpractice, medical malpractice lawyers |

The Brave New World of Genomic Testing.

June 07, 2021

An organism’s genome controls its destiny.  This is as true for the human genome as it is for the genome of the Covid-2 coronavirus.  It was less than 20 years ago that scientists first sequenced the human genome.  The project took nearly 15 years and cost over $2 billion.  Today, due to tremendous strides in computing power and other technical advancement, genomes can be sequenced in a matter of hours and for only $100.00.

Experts assess potential of whole genome sequencing in food safety | Food  Safety News

The Covid-2 pandemic has been both a curse and a blessing.  The curse part is obvious.  The blessing part is less obvious to the general public.  The vaccines, which are being administered around the world, were developed in record time and have an extremely high degree of effectiveness.  Researchers were able to achieve these results using the sequenced genome of the virus.  In the “old days,” researchers working on a vaccine for a virus had to have a sample of the virus with which to work.  For Covid-2, the labs used only the genome; they never had and did not need actual virus to create a vaccine.  The lessons they learned and the capabilities they developed in this quest for a vaccine will be invaluable in many other areas going forward.

Researchers involved in genomic sequencing think its potential is almost beyond understanding.  It has already begun to spark a revolution in many fields of human endeavor.  More are on the way.

Cheap genomic sequencing will allow each individual to have his or her genome sequenced.  This will allow doctors to identify genomic mutations which have the potential to cause illness in the future.

The name given to this concept is “personalized medicine.”  It is the opposite of “one size fits all” medicine.  For example, a medication which works for some patients does not work for others.  Genomic sequencing may be able to tell in advance which patients will benefit from a particular medication and which will not.  The medication can then be given only to those likely to receive a benefit.

Crispr technology, which involves changing and substituting genes, may allow defective genes to be replaced with healthier ones.

We are apparently close to machines which can detect the presence of many cancers from a single drop of blood.

As new viral outbreaks occur, we can detect them in real time, monitor spread and develop treatments and vaccines.

Further afield, advocates suggest that genomic sequencing may revolutionize food safety.  Animals and plants can be sequenced and, using the genomic information, illnesses can be avoided and new breeds of organism can be created.

Fasten your seatbelts.  Every revolutionary technology creates upset.  That is why it is called revolutionary in the first place.  We may not always like the changes that are brought about by genomic sequencing.

Posted in drug companies, genetic testing, Health Care Costs, healthy living, medical research, science news, Vaccines |