Medical Malpractice News and Views


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

Traveling Nurses: An Increasingly Common Phenomenon

March 07, 2022

It is no secret that nurses are the backbone of the health care system.  They are generally caring and compassionate.  They are the health care professionals who interact most often with patients in both doctors’ offices and in hospitals.  Right now, they are in short supply, especially at hospitals.

File:The school for nurses, Paris; A history of nursing, 1912 Wellcome  L0001677.jpg - Wikimedia Commons

There have always been traveling nurses.  When hospitals found themselves short staffed due to vacations or other factors, they would hire one or more traveling nurses from a service to fill their temporary vacancies until the regular nurses returned from vacation or until the hospital could hire and train more regular staff.  Things are different today, at least in part due to the Covid pandemic.  Today, almost all hospitals find themselves woefully short of nursing staff.  To fill the gaps in their staffing levels, they are forced to rely on increasing numbers of traveling nurses.  This has significant implications for both hospitals and the patients who come there for treatment.

Why are hospitals so short of nursing staff today?  As I mentioned above, in part the shortage is due to the Covid pandemic.  Nurses are burned out by the demands placed on them by hospitals filled to overflowing with seriously ill patients.  According to various news outlets, many hospitals are so full that they are forced to stash patients in hallways while they wait for a room to become available or while they look for a place to transfer the patient.  Some hospitals are so crowded that they have been forced to convert cafeterias into ICU’s.  The demands of the pandemic with its unrelenting nature, its repeated surges and its high death toll has so depressed many nurses that they have either called it quits completely or opted for a traveling nurse job where they have more control over their schedules.

A second reason for the current shortage of nurses comes down to our old friend money.  Nurses complain that they don’t get enough of it.  Many nurses resent the fact that the hospitals for which they work take in huge amounts of money and that the hospital executives are highly compensated while nursing salaries have not kept pace with inflation.  A recent front page story in the Wall Street Journal quoted a number of nurses blaming the nursing shortage on “greedy hospitals.”

Still another reason for the current nursing shortage is the graying of America.  As our population ages, more and more caregivers are necessary,  Of course, not all of those seniors find their way to the hospital but, wherever they are, they need nurses and hospitals are losing nurses to these other care giving facilities.

The law of supply and demand now takes over.  Hospitals must fill the patient. care shifts that were filled by the nurses who have left them.  To do that they turn to services which provide nurses to hospitals for the short term.  Because the needs of the hospitals greatly outstrip the supply, the traveling nurses and the companies which provide them are making lots of money.  This is of small to no consolation to the loyal nurses who report to work every day and who have not joined the ranks of the traveling nurses.

All of this has a significant impact on patient care in hospitals.  Patient care in the modern hospital requires teamwork.  Teamwork is difficult to achieve when members of the nursing staff come and go frequently.  It is also difficult for traveling nurses to quickly become familiar with the many policies and procedures they are expected to follow at the different hospitals to which they may be sent.  There are also unwritten rules and cultures at hospitals of which traveling nurses will not be aware.  For example, Dr. Jones wants to be called if his patient’s blood pressure ever gets below a certain level.

Over the years I have had two very tragic cases involving paralysis following surgery where the nurse in question was not a regular member of the post-surgical team and made critical mistakes.  In both cases, there were post-surgical changes which occurred during the night and which should have been reported to the surgeon.  In both cases, the nurse failed to notify the doctor and he arrived the following morning to find his patient was paralyzed.

We are going to be dealing with the issue of traveling nurses for quite a while into the foreseeable future.  It will take a while for supply and demand to balance out and for new nurses to be trained and to come on board.  Just hope that in the interim, the legislature doesn’t address the problem the same way it recently addressed the shortage of teachers.  Instead of making it more attractive for teachers to stay in the classroom, the legislature reduced the requirements necessary to teach.  Problem solved?

The takeaway today is the same as it has been for a long time.  Keep your eyes open and pay attention when you are in the hospital.  If possible, have an advocate with you to watch out for you when you are not able to watch out for yourself or speak for yourself.  Don’t assume the nurse knows what he or she is doing.  Make sure medications being passed are actually intended for you and are the correct medications.  Politely but firmly insist that the nurse call the doctor if something seems out of the ordinary.  Don’t just blindly accept the reassuring statement that everything is fine.  Good luck.

 

Posted in Hospital Negligence, Hospitals, medical errors, Medical Malpractice, medical mistakes, Medical Negligence, Medication Errors, Nurses |

It Is The Wild West Out There.

February 28, 2022

In the movies, the wild west is always portrayed as a lawless place in which the sheriff was either outgunned or corrupt and citizens were at the mercy of the bad guys.  You had to protect yourself because there was precious little help available from the people who were supposed to be helping you.  At least as far as medical treatment goes, that is pretty much where we are today.  The people and organizations that are supposed to be protecting the public from fraud and malpractice are either impotent, lazy, or corrupt or some combination of all three.

Is AZ Medical Board protecting doctors or patients? | | azfamily.com

Turn on the television, listen to the news on the radio, read a newspaper, if you can find one.  If you do these things, it won’t be long before you come upon a story of a doctor misbehaving in a way that harms patients.  It is often the same old story that we have seen over and over again.  A doctor gets terrible results in surgery with many badly injured patients.  That doctor is asked to leave the hospital, or even the state, and off she or he goes to the next hospital or the next state with no one bothering to warn the new landing spot about the risks presented by the surgeon.

And it is not just dangerous and incompetent surgeons who get this “hear no evil, see no evil, speak no evil” treatment.  Sexual predators are allowed to go from place to place taking advantage of patients, sometimes for years before they are finally reported to the authorities.  Fraudsters, who fake bills or perform unnecessary medical procedures often get the same treatment.   Where are the people who are responsible for protecting the public?  For many hospitals, it is better to just show the miscreant the door and pretend that nothing ever happened.  After all, who needs bad publicity?  Move along, folks.  Nothing to see here.

Sometimes the doctor taking advantage of the public is treated as a hero.  Performing expensive, aggressive, and perhaps not really needed surgeries and using surgical products in which the surgeon has a financial interest may not be good for the patient but it looks great on the hospital’s bottom line.  If you expect a hospital to look critically at surgeons, or any other doctor, who adds substantial value to the bottom line, you have not been paying attention.  In today’s world of big medicine, money talks and lots of money talks very loudly indeed.

Medical boards don’t have the financial incentive to pretend nothing happened but they are a lot like the sheriff in the movies who doesn’t want to offend the big shots in town and who is just looking for a nice quiet job.  If you are caught abusing drugs or alcohol, you can expect firm treatment from your state medical board.  Malpractice a little here or there, or sometimes even a lot, and you will find the medical board a little more lenient.  After all, the doctor didn’t mean to injure the patient and, as we all here at the medical board know, medicine is complicated.  And the doctor has offered witnesses to say she did nothing wrong.  With all that in mind, how can we take her license away?  Maybe just a letter of concern will fix the problem, especially if she volunteers to take some additional medical education.

Medical boards that get very aggressive and discipline lots of doctors, even if the doctors deserve it, are going to ruffle feathers.  Doctors have money to pay for lawyers.  Doctors have money to make political contributions.  Doctors work at hospitals that don’t want to see their doctors disciplined.  Complaints will be made to the politicians who appoint the members of the medical board and less aggressive members will be appointed to the medical board in the future.

In the wild west of today’s medicine, you need to protect yourself.  You can’t count on anyone else to do it.  Do some research into your condition and into the doctor who wants to treat it.  Ask questions.  If the doctor is offended by your questions, move on to someone with thicker skin who doesn’t mind answering questions.  There are a lot of tools out there for patients to assist them in making good choices.  Use them.

 

 

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Fraud, Health Care Costs, Hospitals, Medical Devices, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, PODS, Secrecy, Surgical Errors |

Beware! Beware! Beware! Part II

February 21, 2022

Last week I wrote about scams being perpetrated on patients.  This week the scammers took on Medicare and the health insurance industry.  Over a period of five years, a woman and her doctor husband operated a surgery “institute,” which defrauded Medicare and health insurance companies.  In order to perpetrate their fraud, they enlisted the help of their patients.

Top 5 Fraud Patterns Risk Managers Should Look Out For

The fraudsters ran their scheme like this:  They would approach people they knew had good health insurance and offer them “free” cosmetic surgery.  In some cases they even paid the patients to undergo the “free” surgery.  All the patient had to do was agree to help the fraudsters fake the insurance paperwork to make it appear as though the cosmetic surgeries were actually medically necessary procedures as opposed to cosmetic procedures.  Virtually all health insurance excludes coverage for cosmetic procedures.  If you want a nose job or larger breasts, you have to pay for these things yourself.  They would submit paperwork that described breast implants as correction of a breast deformity and nose jobs as correction of a deviated septum.

Over the course of their scheme, they fraudulently billed between $25 million and $65 million dollars to Medicare and various health insurers.  The stories I read did not indicate how they got caught but when they were discovered and indicted, they fled the country and settled in Israel.  They were able to live there for many years before the law caught up with them.  They were arrested and returned to this country, where they pled guilty rather than go to trial.  They face many years in a federal prison.

What is significant is not that someone developed a scheme to defraud Medicare and the health insurance companies.  People do that all the time.  The significant thing about this scheme is that it could not have succeeded without the active cooperation of the insured patients themselves.  The news stories I reviewed did not mention what, if anything, happened to the patients who assisted this scheme but they were every bit as guilty of fraud as the doctor and his wife.

I find it hard to believe that these patients did not know what they were doing when they signed paperwork claiming that the procedures being done were being done for reasons they knew were not true.  For the sake of argument, however, let’s assume that some patients were lied to by the perpetrators of the scheme and were just plain ignorant.  Don’t let this happen to you.  There is no free lunch.  If someone offers you “free” surgery or even offers to pay you to have surgery so they can bill the insurance company, be on the alert.  There is almost certainly something wrong going on there.  Keep your distance and keep out of jail.

Posted in Doctors, Fee for Service, Fraud, Health Care Costs, Health Insurers, medical ethics, Plastic Surgery |

Beware! Beware! Beware!

February 14, 2022

Healthcare is a multi-billion dollar industry.  Where there is money, there are fraudsters and scammers.  The healthcare industry has more than its share.  Some of these scammers target Medicare and health insurers but many target individuals.  Don’t be one of their victims.

SIPC - Fraud Alerts

Healthcare fraud against individuals takes many forms.  One involves calling a patient, often an older patient who is a Medicare beneficiary, and obtaining confidential information, which can be used to file phony health claims or to enroll the victim in a Medicare Advantage plan without their knowledge.

Scammers are very sophisticated these days.  They can manipulate the caller ID feature on your phone to make their calls appear to come from anyone they choose.  They can do the same with emails.  For this scam, the caller ID on the phone may say that the call is coming from your local hospital or from Medicare itself.  The person on the other end offers up a plausible excuse for needing to “confirm” the victim’s Medicare number.  Sometimes the excuse is coupled with a threat that, unless the victim provides the information, Medicare will cut off their benefits and they will have to pay for medical care personally.  These scammers have given lots of thought to just the right formula to coax the data out of the victim.  Don’t give out personal data to anyone who calls you.  If there appears to be a real need for data to be given out, hang up and call back to a number you are sure is a legitimate number.  Do not use the number give you by the caller.

Another form of healthcare fraud involves people pretending to be doctors or other healthcare providers.  They often prey upon people in lower income communities, who don’t have health insurance or who don’t have much experience with doctors.  The scammer offers personalized medical care, sometimes at a discount but sometimes for a very substantial amount of money.  It is bad enough if the only thing taken by these scammers is money but I have seen a number of cases in which the fake doctor performed some sort of procedure on the victim and caused serious injury or death.  Make sure you check the credentials of any healthcare provider before going for treatment.

Real doctors are not immune to the temptation to defraud patients.  During the COVID pandemic, some real physicians sold wonder drugs guaranteed to stop COVID in its tracks.  Others sold advance COVID treatment packages that would entitle the victim and his or her family to concierge care from the physician, in the event any of them contracted COVID.  The old adage has a lot of merit, “If it seems too good to be true, it probably is.”

Real doctors sometimes hold themselves out as qualified and experienced when they are not.  As I have mentioned in other posts, once a doctor is licensed, she can do pretty much any procedures she wants, so long as she can do them in her office or a local surgicenter.  We see this with some frequency in cosmetic surgery.  There is a lot of money to be made in cosmetic surgery and that money attracts doctors who have not been trained as cosmetic surgeons.  Maybe they have taken a weekend or week long training offered to give them some skills but that is a far cry from a three year plastic surgery residency or a year-long cosmetic surgery fellowship.  A few years ago, a Phoenix doctor, who was not a trained cosmetic surgeon, did liposuction on a woman and ended up killing her.  Don’t let that happen to you.

In addition to holding themselves out as qualified to do procedures for which they have not been properly trained, some real doctors defraud their patients by recommending unnecessary surgeries or treatments that will put money in their pockets.  There have been cases of doctors lying to patients and telling them they have cancer so the doctor can give them expensive cancer treatments.  Remember, just because a doctor says it does not make it true.  Get a second opinion before any major surgery or course of treatment, like chemotherapy, that can cause significant bodily harm.

Beware of health care scammers.  Be skeptical.  Be cautious.  Be alert.

Posted in Doctors, Fee for Service, Fraud, Health Care Costs, Health Insurers, Medical Devices, medical ethics, Medical Malpractice, Medicare, Plastic Surgery |

“But He Came Highly Recommended.”

February 07, 2022

There are some bad doctors out there.  They are what medical malpractice lawyers call “frequent flyers.”  They are careless and incompetent.  They get sued over and over again.  No matter how often they get sued, the Arizona Medical Board keeps on renewing their licenses.

Bad Doctors: Lowry, Thomas P., Reimer, Terry: 9781453810859: Amazon.com: Books

It never ceases to amaze me that these bad doctors keep getting patients referred to them by other doctors.  What is going on?  Don’t the doctors who are referring patients to these bad doctors know what all the malpractice lawyers know?  Do they know and not care?

I think the most charitable and probably most accurate explanation is that the referring doctors don’t know what is going on in the practices of the bad doctors.  They know the bad doctor from the country club or they know her because she has an office down the hall in the same building or they have seen him at medical meetings.  They know that she or he specializes in the kind of medicine this patient needs and that is all they need to know to give the patient the name of the bad doctor.  It is hard enough for doctors to keep track of their own practices without adding the additional burden of keeping track of the practices of all the doctors to whom they might refer patients.

People get recommendations from their friends too and these are far more understandable.  As the old saying goes, “Even a blind squirrel finds an acorn every once in a while.”  The bad doctors do not kill or maim all their patients.  They may be very charming and may get some good results with some of their patients.  Those patients who got the good result may sing the bad doctor’s praises to the world.  They just don’t know any better.

You, however, should know better than to assume that just because your friend saw Doctor X and got a good result that is a good basis for choosing Doctor X for your treatment.  Do yourself a favor and do some investigating before entrusting your care to any doctor.

Always start at the medical board web site.  Has the doctor been the subject of medical board discipline?  If the doctor has been the subject of medical board discipline, that does not mean that you should avoid this doctor but it is something that bears further inquiry.  By the same token, just because the doctor has not been the subject of medical board discipline does not mean that she or he is a good doctor.

Where did the doctor train?  Was it a good medical school or some foreign, fly-by-night outfit.  Again, some doctors from foreign schools are very good while some from respectable schools are not very good doctors.

Does your doctor specialize in the area you are interested in?  If she does, what training has she had in that area?  Did she do a residency in the area?  Is she fellowship trained in the area?  Doctors are not limited in the areas in which they can practice.  If they have a valid license, they can do almost anything.  We see this a lot in cosmetic surgery where people with no formal training hold themselves out as doing cosmetic procedures.  Beware of these people.

Is your doctor board certified?  You can determine board certification by going to the web site of the American Board of Medical Specialties and entering your doctor’s name.  Board certification requires experience in the area and passing a written and oral examination.  While board certification is no guarantee of a good result, at least you will have the satisfaction of knowing that the doctor has some competence in the area.

The last question to ask is whether your doctor has been sued.  The clerk of the court in almost every major county usually maintains a database that can be searched by name.  That is certainly the case here in Maricopa County.  A single suit against your doctor should not be considered disqualifying but does merit further investigation.  More than one suit, however, suggests a real problem.  Look somewhere else for a doctor, if your candidate has been sued more than once.

If you do these basic steps, you will have given yourself the best chance of getting a good result with your new doctor.  If you don’t and it turns out your doctor was a “frequent flyer,” you will have yourself to blame along with the incompetent doctor.

Posted in Arizona Medical Board, Doctors, medical errors, Medical Malpractice, Medical Negligence, Secrecy, Surgical Errors |

Blood Clots Are On The Rise.

January 31, 2022

In so many ways our bodies are wondrous machines that work nearly flawlessly for decades before they finally wear out or something goes wrong.  Over millions of years, the process of evolution tried out various strategies and discarded the ones that didn’t work well.  When something new and better came along, it was incorporated into our genes.  The process worked well until civilization changed the environment so quickly our bodies could not keep up.  The process of blood clot formation is an excellent example.

Microgel Particles Boost Blood Clotting | National Institutes of Health (NIH)

If our blood did not clot, we would die.  Some people have a disease which prevents normal clotting.  It is called hemophilia and, in the absence of treatment, hemophiliacs have short life expectancies.  In the 1960’s, a hemophiliac could expect to live only until age 11.  So blood clotting is a good thing, at least until it is not.

Our distant ancestors were not couch potatoes.  In the first place, there were no couches.  In the second, anyone who sat around all day starved to death.  It was a struggle to find food and that struggle necessitated constant or near constant movement.  Movement keeps the blood in our bodies flowing and keeps it from clotting.  Our blood was meant to circulate inside a moving body.  When we park our bodies in front of a television or on a long distance flight across the ocean, our blood flow slows down and clots may form.  Obesity also slows down our bodies and increases the risk of clot formation.  So do lots of other things we encounter in modern life.

Here is a list of some things that increase the risk of clot formation:

  • Surgery
  • Hospitalization
  • Cancer
  • Some cancer treatments
  • Pregnancy
  • Use of estrogen-containing contraceptives
  • Hormone replacement therapy
  • Old age
  • Long distance travel
  • Varicose veins
  • Catheter placement in a vein
  • History of blood clots
  • Obesity
  • Smoking
  • Trauma
  • Autoimmune disorders

Some of these risk factors we can and should avoid, such as smoking.  Others are justd part of modern life and must be managed and should keep us on alert for clot formation.

Although clots can form almost anywhere, the most common place in the body for the formation of dangerous clots is the deep veins of the legs.  When this occurs, it is called Deep Vein Thrombosis (DVT).  DVT may be silent.  There may be no symptoms.  If there are symptoms, they usually involve pain in the calf, and perhaps redness, swelling and a feeling of warmth.  If you develop these symptoms, especially if you have any of the risk factors listed above, seek medical treatment.

DVT can be fatal, not in and of itself, but because of what can happen, if the blood clot breaks free of the deep vein and travels through the heart to the lungs.  When the oxygen-depleted blood returns to the heart, it is sent on by the right ventricle into the lungs to take on a fresh load of oxygen.  In order to reach the small chambers where the oxygen transfer takes place, the blood has to travel through ever smaller vessels in the lung.  If the blood is carrying a piece of clot that broke off from the calf, it will get stopped and clog up the vessel when the vessel gets too small for it to pass.  When that happens, no more blood can flow past that point.  The larger the piece of clot, the sooner it will get caught and the greater the amount of lung that can no longer transfer oxygen to the body.  A blood clot which reaches the lungs is called a pulmonary embolism.

Sometimes the piece of clot that breaks off is so large that it blocks the very top of the lungs where the depleted blood is diverted into either the left lung or the right.  A clot this large is called a saddle embolus and if it blocks all or most of the flow of blood into the lungs, it is usually almost immediately fatal.

At the other end of the spectrum is what is called an embolic shower.  This is a shower of very small clots,  If they do not interfere very much with the flow of blood into the lungs, they will not cause much in the way of symptoms and will be dissolved by the body.  The clots can be anywhere from the large, fatal, saddle embolus to the very tiny.  The larger they are, the more symptoms they will cause and the more likely they are to lead to death or disability.

When the clots reach the lungs, most people will feel some symptoms.  Here are some of the symptoms of pulmonary embolism.

  • Sudden shortness of breath
  • Chest pain
  • Feeling of anxiety
  • Irregular heartbeat
  • Dizziness, fainting or lightheadedness
  • Heart palpitations
  • Sweating

If you develop chest pain or shortness of breath, seek immediate medical attention.  The other symptoms are less specific and could be many things but should be monitored.

Pulmonary embolism is not always an easy diagnosis to make.  I have handled a number of fatal pulmonary embolism cases over the years.  They each involved our old friend misdiagnosis.  In each case, the health care provider thought she was looking at a cold, a pneumonia, non-cardiac chest pain or some other condition not likely to be fatal.  In each case, she was mistaken.  The best thing you can do is avoid those risk factors you can avoid and be alert to the development of DVT and pulmonary embolism.  Give the doctors all the time you can by not waiting until things get bad before seeking help.

 

Posted in Blood Clots, Doctors, health, healthy living, Medical Malpractice, Misdiagnosis, Obesity, Pulmonary Embolism |

Misdiagnosis – The Most Common Form of Medical Malpractice.

January 24, 2022

Misdiagnosis is the most common form of medical malpractice and it very often results in death or serious injury.  A 2012 review of 45 years of high quality medical literature, which was published in the BMJ Journal Quality and Safety, estimated that over 40,000 patients die in the ICU in the United States each year due to misdiagnosis.  Vascular events and infections led the list of misdiagnoses.  Not only is this a very large number, it is particularly high given the high level of professional care found in the typical ICU.  If even these medical professionals are routinely misdiagnosing their patients, what can we expect from less well-trained and less experienced doctors and nurses.  The level of misdiagnosis in the ICU has powerful implications for the number of misdiagnoses of patients who never make it to the ICU.  Many researchers estimate that fully 20% of all cases involve some form of misdiagnosis, a number that far exceeds surgical errors and drug errors as causes of serious injury and death.

Image result for misdiagnosis

The consequences of misdiagnosis are many.

One of the results of misdiagnosis is the money spent on medical care that will be of no benefit to the patient because she does not have the disease the care is intended to treat.  In the United States in any given year, wasted medical care costs billions of dollars, dollars that could have been used to actually treat illnesses and cure patients.

When a patient, who has been misdiagnosed, undergoes unnecessary medical treatment, more than money is wasted.  The patient’s time and even health are also wasted.  Sometimes the unnecessary treatment is surgery.  Sometimes it is a medication that has serious side-effects for the patient taking it.  The unnecessary treatment may result in serious health issues for the patient or even death.  There is almost always an emotional toll when a patient undergoes medical treatment, whether it is needed or not.

Of course, the other side of the misdiagnosis coin is that the true cause of the patient’s problems, the problems that brought the patient into the health care system in the first place, are going unrecognized and untreated.

Misdiagnosis just never seems to go away.  Regardless of the changes in medicine, including the development of newer, more accurate tests and better ways of imaging the body, doctors keep diagnosing illnesses that do not exist and missing ones that do.  Of course, the reason is that diagnosis is an art.  Some doctors do it much better than others.  Often, the reason is that the really good diagnosticians are really good listeners.

I have heard more than once that, if you listen carefully, the patient will tell you what is wrong.  If you are impatient or if you are prone to leap to conclusions, you will make a lot of mistakes in diagnosis.

For the patient, it really helps if you have a common disease because the impatient doctor is most likely going to choose your diagnosis from a list of pretty common ones she or he has seen frequently in the past.  Patients should always think about getting a second opinion, especially if the condition being diagnosed is one which requires surgery or complicated, risky treatment.  If you don’t get well after your diagnosis and treatment, you should also be thinking about getting a second opinion.  If you are going to get a second opinion, look for someone who has a reputation as a good diagnostician.

The best advice I can offer on the subject of misdiagnosis is to know that it exists and that it is not at all uncommon.  Don’t believe everything you are told, even if it is a doctor who is telling it to you.

Posted in Doctors, medical errors, Medical Malpractice, medical mistakes, Medical Negligence, Misdiagnosis |

Don’t Expect Too Much From The Medical Profession.

January 17, 2022

I like doctors.  I really do.  Most of them are caring professionals who try to do the right thing.  Unfortunately, there are some who are only in it for the money and who are selfish jerks.  There are also some who either never should have made it out of medical school or who just let their skills erode to the point that they often deliver substandard care.  The problem I want to talk about today is the tolerance the medical profession has for jerks and incompetents.

American College of Physicians Releases 7th Edition of Ethics Manual - Neurology Advisor

Physicians pride themselves on having high ethical standards and living up to those standards.  Most do but almost all have a blind spot.  They don’t want to report other physicians who are rude, insensitive, disrespectful of patients or who are just plain incompetent.  As a result, the public is repeatedly exposed to these terrible people.  Why does the medical profession fail to police itself?  The answers are subtly different for the rude, disrespectful doctor and the incompetent one.

When it comes to the rude, disrespectful doctor, and it can be either a man or a woman but it seems to more often be a man, there may be a legitimate fear of retaliation, if that person’s misconduct is reported.  After all, this person is a jerk and has no respect for others.  He or she probably believes that it is their right to be rude and disrespectful and that other doctors have no right to interfere or to harm their medical practices.  These people may even be blind to their own rudeness and lack of respect.  Anyone who crosses them can expect all-out war.  Is it any wonder that many good doctors will just decide that it is not worth it to report this person?  Of course, this leaves the rude doctor to continue his offensive and disrespectful behavior.

When it comes to the incompetent doctor, the reluctance to report may stem from a concern that “There but for the grace of God, go I.”  Maybe the incompetence gets chalked up to the incompetent doctor just having a bad day.  Maybe it is excused because the incompetent doctor is a friend or is well-liked in the community.  Maybe the doctor who sees the incompetent behavior tells herself that she doesn’t have all of the facts and therefore can’t be sure this was incompetence.  Maybe she says it can be overlooked because no one was harmed.  Regardless of why it is not reported, it often is not reported and the incompetent doctor goes on to make more mistakes and to probably harm patients as a result.

My point is that the public cannot count on the medical profession to police itself.  It just is not going to happen consistently.  In most cases, reports will not be made.  When they are made, medical boards and hospital disciplinary committees do not consistently weed out the bad apples.  As a result, my in box fills up with messages from patients who have encountered these people, sometimes with catastrophic consequences.  We deserve better.

 

 

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Hospitals, medical ethics, Medical Malpractice, medical mistakes, Secrecy, Surgical Errors |

The “Just World” Phenomenon and the Malpractice Jury.

January 10, 2022

The “just world” phenomenon is the name given to the tendency of human beings to believe that the world is just and that people get what they deserve.  It is a form of cognitive bias.  We all have this tendency to a certain extent, with some believing it more strongly than others.  We want to believe the world is fair.  We want to believe that if we work hard and follow the rules, we will be rewarded, or at least not punished.  It doesn’t always work out that way, of course.  Bad things sometimes happen to good people.  Bad people sometimes seem to be the big winners in life.  Confronting the unfairness of life presents us with hard-to-resolve emotional conflicts.

A radical approach to creating fairness | Dhaka Tribune

Malpractice jurors are almost always called upon to confront an unjust world in which an innocent patient has been seriously injured.  Jurors who believe in a just world have a hard time finding in favor of such patients.  The stronger their belief in the fairness of the world, the more difficult it is for them to return a verdict for the patient.  If bad things can happen to good people, then bad things can happen to them or their families, even if they follow all the rules and live good lives.  It is hard to be optimistic about life, if you believe that everything is just a matter of chance.  It is much more reassuring to believe the world is fair.

Here is where the cognitive bias comes in.  If the world is fair, then there must be a reason this patient suffered a serious injury.  There must have been something the patient did or didn’t do, which brought this injury on her.  In a malpractice trial, there will be no shortage of suggestions by the attorneys representing the doctor about what the patient did or didn’t do that helped cause the injury.  Malpractice defense attorneys are some of the best trial lawyers around.  They know all about cognitive bias.  They know how successful blaming the patient can be as a trial strategy for a doctor who has committed malpractice.  They spend a lot of time before trial thinking up ways to blame the patient.

Sometimes the suggestions by the defense attorneys are well-reasoned and sound.  Sometimes they are ridiculous.  However, regardless of whether they are sound or ridiculous, they are still attractive to a juror trying to reconcile the need for the world to be fair with the injury to the patient.  If the terrible injury was somehow the patient’s fault, then the world is working in a fair way and you can’t blame the doctor for the patient’s injury.  Now the juror can go home and sleep peacefully, secure in the knowledge that the world is a fair place and nothing terrible is going to happen to his family.

Looking at it another way, no juror wants to believe that doctors make mistakes that kill and injure innocent patients.  Jurors want to be able to trust their doctors.  It is far more reassuring to conclude that the patient is somehow at fault for her injury.

There are many other cognitive biases out there that affect the way jurors hear the evidence and how they decide cases.  You need a lawyer who understands these things.  The deck is already stacked against patients who have been injured by doctor or hospital malpractice.  Don’t trust your case to someone who hasn’t proved their ability in trial.  If you have an experienced trial lawyer, the deck will still be stacked against you, but you will have given yourself the best chance to win.

Posted in Doctors, Finding a Medical Malpractice Lawyer, Hospital Negligence, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice lawyers, medical mistakes, Medical Negligence, plaintiff, trial, Verdicts |

Why You Need Uninsured and Underinsured Motorist Coverage.

January 03, 2022

Not all my practice is devoted to the representation of victims of medical malpractice.  I also represent people who suffer serious injuries in automobile accidents.  These cases often involve uninsured or underinsured motorist issues.  Of course, by the time I see the client and we discuss insurance issues, they either had uninsured and underinsured motorist coverage at the time of the accident or they did not.  It is too late to get it by the time they are sitting in my office.

 

Crash being investigated in Phoenix that injured 2 people | Arizona News | azfamily.com

Let’s get some of the basics out of the way.

Uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) are different but similar.  Uninsured motorist coverage (UM) applies if you are in an accident and the other driver does not have an automobile liability policy in the minimum limits required by the State of Arizona.  It also applies if you are in an accident with a hit and run driver.  For policies issued before June 30, 2020 Arizona’s minimum limits are $15,000 per person and $30,000 per accident for bodily injury.  For policies issued after June 30, 2020, the minimum limits are $25,000 per person and $50,000 per accident for bodily injury.  If the other driver has such a policy, he is not an uninsured motorist even if the policy limits are not enough to pay for all the damages he caused.

By contrast, an underinsured motorist is a person who has automobile liability insurance with at least the limits required by the State of Arizona but whose limits are not sufficient to pay for all the injuries he caused.  It does not matter how big his policy is.  If it is not big enough to pay for all the damages, he is an underinsured motorist.  Underinsurance is measured by comparing the amount of the damages to the amount of the policy.  For example, if a motorist has a $1,000,000 liability policy limit but causes damages to you in the amount of $1,050,000, he is an underinsured motorist for the amount by which your injuries exceed his liability limits.  In my little example here, you can collect his million dollar limit and then recover your additional $50,000 in damages from your UIM coverage, if your UIM limits are that high.

A person cannot be both an uninsured motorist and an underinsured motorist.  He can be one or the other but not both.

A.R.S. Section 20-259.01 requires an insurer writing an automobile liability policy to make a written offer to the customer of both uninsured motorist coverage and underinsured motorist coverage for limits at least as much as the policy’s liability limits.  This means that, if you buy a policy with a $500,000 single limit of liability coverage, the insurance company must offer you $500,000 worth of uninsured and underinsured motorist coverage.  You don’t have to buy it in that amount, or at all, but the insurance company must offer it to you in writing.  There is no requirement to offer uninsured or underinsured motorist coverage when selling an umbrella policy.

So why buy these coverages at all?  If you decide to buy, how much should you get?

When I talk to a new client about their automobile accident case, one of the questions I always ask is whether they had UM and UIM coverage at the time of the accident, and, if so, in what amount.  I often find that the client has either refused the coverage or purchased it in an amount less than his or her automobile liability limits.  In my opinion, this is foolish.

UM and UIM are the only coverages that pay you and your passengers, if you are in an automobile accident.  If the accident is your fault, the liability portion of your policy pays the other people in the accident.  While that helps you by protecting your assets, if the accident was your fault, it does not put any money in your pocket.  On the other hand, if the accident was not your fault and you do not have either UM or UIM coverage, you are at the mercy of the other driver.  If the other driver has no insurance or only a small policy, you and your passengers may be out of luck.  On the other hand, if you have UM and UIM coverages, you will be able to make a claim under those coverages for the amount of your injuries up to the UM or UIM policy limits.

It is estimated that almost 12% of the drivers on the road in Arizona are uninsured.  Many, many of the rest will have only small policies.

For all these reasons, I recommend buying UM and UIM coverages in the biggest amount the insurance company will sell you.  The coverages are less expensive than liability coverage and are well-worth the money you spend to buy them.  In fact, I recommend buying the largest liability policy you can afford just so you can force the insurance company to offer you more UM and UIM coverage.

If you are in an accident in which you or a passenger suffer any serious injury as a result of the fault of another driver, I can virtually guarantee you that the other driver will be either uninsured or will meet Arizona’s definition of underinsured.  You need to protect yourself and your passengers and family from these people.  Buy that uninsured and underinsured coverage when it is offered to you and buy as much of it as you are allowed.

 

 

 

Posted in Insurance Law, Lawsuits, plaintiff |