Pittsburgh Medical Malpractice Blog

No matter which estimate you believe to be accurate, Death by Medical Error ranks as a Top 10 cause of death in the US. Due to the extreme reluctance of hospitals and doctors to report the errors that lead to patient death, it is hard to define an accurate number of medical error related deaths each year. According to a Hearst Newspaper investigative report by Cathleen Crowley and Eric Nalder, “ Within Health Care Hides Massive, Avoidable Death Toll”, estimates vary from a low of 44,000 to 98,000 to as many as 200,000 per year depending on the study criteria and statistical assumptions made in each study. The CDC (Center for Disease Control) lists the Top 10 leading causes of death in the US:

• Heart disease: 631,636
• Cancer: 559,888
• Stroke (cerebrovascular diseases): 137,119
• Chronic lower respiratory diseases: 124,583
• Accidents (unintentional injuries): 121,599
• Diabetes: 72,449
• Alzheimer's disease: 72,432
• Influenza and Pneumonia: 56,326
• Nephritis, nephrotic syndrome, and nephrosis: 45,344
• Septicemia: 34,234

Even the most conservative estimate places Death by Medical Error at #9 on the list. This statistic does not even consider those left with permanent disabilities as a result of medical errors. The numbers are staggering and the personal stories are heartbreaking.

Current Progress to Improve Patient Safety.

According to the article, the National Institute of Medicine issued the report; “To Err Is Human: Building A Safer Health System”, in November of 1999. Although this was the first time an authoritative voice backed such a study, its conclusions fell on mostly deaf ears. The report urged the medical profession and its critics to stop blaming doctors and nurses for these mistakes. “People make mistakes... medicine must design systems that can reduce errors and prevent harm from reaching the patient when a mistake is made.” The report went so far as to define several steps that could be taken to improve patient safety. It is now 10 years since the report was released. The article notes that there has been some progress improving patient safety but,” the positive steps are overshadowed by the continuing death toll.” In their article, Crowley and Nalder quote Kathleen Sebelius, US Health and Human Services Secretary (which oversees the federal Agency for Healthcare Research and Quality (AHRQ), Medicare and the Food and Drug Administration), as saying the 2008 death toll from medical errors is 100,000 – the same as it was 10 years ago.

While lack of progress on such a preventable cause of death is enough to raise your blood pressure, the realty behind this statistic is even worse. Crowley and Nalder believe the death toll figure quoted by Ms Sebelius is most likely a reiteration of the dated statistic provided by the, “To Err is Human” report 10 years earlier. The AHRQ admits their most recent figures for death by medical error were gathered in 1984. Why don’t we have more up-to-date information on this topic? According to the Crowley/Nalder article it is due to a lack of uniform and enforceable reporting requirements. Why is there a lack of reporting? The article states hospitals and doctors are afraid of additional medical malpractice lawsuits so they do not want to report the errors. They would rather continue making mistakes than address and correct them. To accept this as a valid excuse would be the same as excusing the child playing with matches who lights the trash can on fire then, lets the house burn down rather than call for help because he was afraid he would get in trouble for playing with matches. The child blames his fear of punishment on his mean parents while the medical profession wants to blame the mean and greedy lawyers for their inability to admit their mistakes – and correct them. Tort reform is the only answer, they claim. Limit malpractice awards and healthcare costs will go down.

Tort Reform Unnecessary with Improved Healthcare Quality

If that is true, a quick look at some of the states who have instituted limits on malpractice awards will tell us whether or not this type of tort reform reduces healthcare costs. Studies in Texas, and other states where legislation limiting malpractice awards has been enacted, show this type of tort reform does not reduce overall healthcare costs. Rather, Texas is now home to 3 of the most expensive cities in which to get healthcare. You can read more about this study in, “Most Expensive Places For Health Care.” By Rebecca Ruiz at Forbes.com (08/10/09). (The Texas information is in the second half of the article.)

On the other hand, other healthcare cost containment studies* suggest that defining medical errors and addressing their causes actually leads to a decrease in overall healthcare costs. Reducing medical errors obviously reduces the cost of malpractice lawsuits and patient awards. Additionally, and more importantly, it reduces the costs associated with follow up healthcare for patients suffering needless complications. Follow up care due to medical complications is such a significant cost to insurance companies some insurers are now offering doctors bonuses when their patients experience complication free outcomes. Certainly, not all complications are the result of medical errors. However, with this type of bonus award system in place, doctors are more likely to be motivated to reduce patients’ medical complications whenever possible; including reducing complications due to error. Tort reform will be unnecessary if we work to reduce medical errors and improve overall healthcare quality.
If you believe you or a family member has been the victim of medical malpractice in Pennsylvania, please use the form to contact Rosen Louik & Perry for a free evaluation of your claim.

(*) Editorial, Fixing Medical Mistakes, The Washington Post, p. A24, December 27, 1999.

Continue reading "Death by Medical Error: Top 10 Cause of Death in the US" »

An international research team has shown that death and complication rates from surgery can be dramatically improved by using simple checklists to make sure that safety measures are taken before, during, and after each operation.

The research project involved nearly 8,000 patients at eight hospitals around the world and was done as part of the World Health Organization’s program called Safe Surgery Saves Lives. The results were published in January 2009 in the New England Journal of Medicine.

The surgical teams using checklists found that death rates were cut in half and non-fatal complications by one-third.

Items on the surgical safety checklist included basic items like verifying that the team has the correct patient and the correct surgical site, making sure the pulse oximeter (which measures oxygen in the blood) is working, making sure antibiotics have been given within one hour before the start of the surgery to prevent infection, and confirming that x-rays needed for the case are on display in the operating room. Another item on the checklist is to have all members of the surgical team introduce themselves by name and role; this is intended to give permission to lower-status team members to speak up at a later time if they notice something is wrong.

Listed below is the entire nineteen-item checklist from the World Health Organization:

Before Induction of Anesthesia:


1. Patient has confirmed
   
   
   
   • Identity
   
   
   • Site
   
   
   • Procedure
   
   
   • Consent
   
   


2. Site Marked


3. Anesthesia safety check completed


4. Pulse oximeter on patient and functioning


Does Patient have a:


5. Known Allergy?


6. Difficult airway/aspiration risk?


7. Risk of more than 500 ML blood loss (7 ML/KG in children)?


Before skin incision:


8. Confirm all team members have introduced themselves by name and role


9. Surgeon, anesthesia professional, and nurse verbally confirm:
   
   
   
   • Patient
   
   
   • Site
   
   
   • Procedure


10. Surgeon reviews: What are the critical or unexpected steps, operative duration, anticipated blood loss?


11. Anesthesia team reviews: Are there any patient-specific concerns?


12. Nursing team reviews: Has stability (including indicator results) been confirmed? Are there equipment issues or any concerns?


13. Has antibiotic prophylaxis been given within the last 60 minutes?


14. Is essential imaging displayed?


Before Patient Leaves Operating Room

Nurse verbally confirms with the team:


15. The name of the procedure recorded


16. The instrument, sponge and needle counts are correct (or not applicable)


17. How the specimen is labeled


18. Whether there are any equipment problems to be addressed


19. Surgeon, anesthesia professional, and nurse review the key concerns for recovery and management of this patient.

Contact the medical malpractice lawyers at Rosen Louik & Perry, P.C. to obtain your free consultation. Our lawyers are experts in dealing with cases involving surgical accidents. There will be no fee for unless a recovery is made.

Methicillin-resistant staphylococcus aureus, most often simply referred to as MRSA, causes an infection that is resistant to several common antibiotics. An estimated 90,000 people in the United States fall ill each year from MRSA. However, it is not clear how many die from the infection; one estimate puts it at more than 18,000, which would be slightly higher than U.S. deaths from AIDS. The infection has been associated with health care facilities, where it infects people with weakened immune systems. However, many recent cases involve an aggressive strain, community-associated MRSA, or CA-MRSA. Community-associated MRSA is generally the result of skin-to-skin contact between individuals. The infection can be life threatening if untreated. It is spread through close contact with an infected person, or by touching surfaces or personal items used by infected people. As a result, this disease is common among athletes and people in hospitals and jails. MRSA infections produce abscesses, boils and other pus-filled lesions on the skin.

Allegheny County has seen a tremendous rise in the number of community-associated MRSA cases. This year alone, more than 100 cases of community-associated MRSA have been reported in Allegheny County, a figure that already exceeds the 2006 total. Most recently, several Mount Lebanon High School football players have contracted MRSA, and two students in the North Hills School District were recently diagnosed with MRSA.

Fox News reported that the family of a 12-year-old boy that died from a staph infection intends to sue the city of New York, seeking damages of $25 million in a wrongful death lawsuit. Omar Rivera died from MRSA on October 14 at Brookdale University Hospital and Medical Center. Omar’s mother, Aileen Rivera, had taken the 7th grader to the hospital because she wasn’t satisfied with the care that he was getting at a clinic, which belongs to New York City’s public hospital system. Mrs. Rivera claims that the doctor at Kings County Hospital Center misdiagnosed Omar’s illness, identifying it as an allergic reaction rather than an infection. Because of this misdiagnosis, no tests were ordered and Omar was only given Benadryl for his skin lesions. Mrs. Rivera said her suit will be based upon the failure of doctors at Kings County Hospital Center to diagnose Omar’s MRSA infection.

Here are some suggestions to prevent community-associated MRSA:

Practice good hygiene
Keep cuts and scrapes clean and covered with a bandage until healed
Avoid contact with other people’s wounds or bandages
Avoid sharing personal items, such as towels, washcloths, razors, or clothes
Wash soiled sheets, towels and clothes in hot water with bleach and dry in a hot dryer
If a wound appears to be infected, see a healthcare provider. Treatment may include draining the infection and antibiotics.

Misdiagnosis
Misdiagnosing a patient can be a serious problem—especially if the wrong diagnosis results in the patient sustaining injuries, becoming more ill, or dying. A misdiagnosis can cause doctors to give a patient the wrong medication or treatment. In addition, a person’s chances of survival could decrease with a misdiagnosis.

The Pittsburgh law firm of Rosen Louik & Perry, P.C. has represented victims of medical malpractice involving cases where a misdiagnosis has been made, as well as representing people in wrongful death cases. Medical malpractice can occur when a doctor or other medical provider neglects to properly care for a patient during treatment or when they fail to properly diagnose (or delay in diagnosing) a condition.

If you or someone you love has been a victim of medical practice due to a medical provider’s error, it is important that you speak with an experienced medical malpractice lawyer who can evaluate your case for you and file a claim on your behalf. Contact the Pittsburgh, PA medical malpractice law firm of Rosen Louik & Perry, P.C. today for your FREE consultation.

Resources:
The Pittsburgh Channel
CDC

Continue Reading “Family of Boy Who Died from Staph Infection to File $25 Million Dollar Wrongful Death Lawsuit"

Medication errors injure at least 1.5 million Americans annually, costing the United States more than $3.5 billion a year, according to a government report released in July 2006.

According to a report by the Institute of Medicine, in hospitals alone, statistics translate into an average of one medication error per patient per day. Medication errors occur at almost every phase of care, including in administration and at the patient's own hand. Existing studies suggest that 400,000 preventable drug-related injuries occur each year in hospitals, another 800,000 in long-term care settings, and about 530,000 among Medicare recipients in outpatient clinics.

Common medication errors include:

- Doctors writing prescriptions that could interact dangerously with other drugs a patient is taking;

- Nurses putting the wrong medication, or the wrong dosage, in an intravenous drip

- Pharmacists incorrectly dispensing the prescribed medication; and

- Name confusion, i.e., the sound-alike names for the antiepileptic drug Lamictal and the antifungal drug
Lamisil

If you or someone you know has suffered injuries as a result of medication errors, please contact The Pittsburgh medical malpractice law firm of Rosen Louik & Perry, P.C. for a free consultation. Our attorneys have experience dealing with cases involving medication errors, and we have doctors on staff to review your case.

Resources:

The Washington Post
U.S. Department of Health & Human Services

Breast cancer is a devastating disease attacking our sisters, daughters, mothers, and grandmothers. In the United States, close to 213,000 women will be diagnosed with breast cancer this year, with that number increasing to 420,000 annually over the next ten years.

Women with breast cancer often undergo a lumpectomy and radiation to save their breasts and avoid the need for additional reconstructive surgery. However, approximately one-third of all patients are unhappy with how their breasts look after undergoing breast conservation therapy and many would consider reconstruction, according to a study presented today at the American Society of Plastic Surgeons (ASPS) Plastic Surgery 2006 conference in San Francisco.

"I have patients walking into my office saying lumpectomy was supposed to save their breast but what's left doesn't look like a breast to them," said Howard Wang, ASPS Member Surgeon and co-author of the study. "Conservation is believed to be an acceptable way of saving a woman's breast. But many of these women are coming to plastic surgeons for help, saying it isn't so."

In the study, 28 percent of the breast cancer patients stated they were dissatisfied with the cosmetic result of their lumpectomy. Of those patients, 46 percent stated their physical appearance was worse or much worse after the surgery and were considering reconstruction. Only nine percent of patients who were satisfied with the outcome, however, would consider reconstruction if it were offered.

Approximately 26 percent of patients were unhappy with their physical appearance after the lumpectomy but had an improved sense of body image. Plastic surgeons believe this disparity occurred because many patients felt relieved to be free of the cancer, leading them to feel better about their bodies even though they were not happy with how their breasts looked.

According to the American Cancer Society, almost 213,000 women will be diagnosed with breast cancer this year. Almost 58,000 women underwent breast reconstruction surgery in 2005, according to ASPS.

"Patients should know their options and understand that just because they undergo a lumpectomy to save their breast does not mean they will be happy with the cosmetic outcome," said Dr. Wang. "Oncologists need to work with patients to help them understand the potential physical outcomes and refer them to a board-certified plastic surgeon to consider all of their choices."

The medical malpractice attorneys at Rosen Louik & Perry in Pittsburgh, Pennsylvania have successfully represented women (and their families) who suffered injuries because of the failure to timely diagnose breast cancer. If you believe that you, or someone you love, has been the victim of a failure to diagnose breast cancer, you may be able to file a medical malpractice lawsuit and seek compensation for your pain, suffering and loss.

Conact the medical malpractice law firm of Rosen Louik & Perry, P.C. for more information or a consultation.

Resource Links
American Society of Plastic Surgeons

Physicians often commit medical malpractice when they fail to diagnose a disease or other condition in a timely fashion. A study recently published in the Annals of Internal Medicine concluded that in a vast majority of the cases studied, medical malpractice was caused by errors as basic as failing to obtain an adequate medical history or perform an adequate physical examination.

The study reviewed 307 randomly chosen closed medical malpractice claims from four insurance companies, all of which involved allegations of missed or delayed diagnosis in an office setting. 60 percent of the cases studied resulted in serious harm to the patients and 30 percent resulted in death. The cases overwhelmingly involved various types of cancer, most frequently breast cancer or colorectal cancer.

The researchers found that in 100 of the cases, doctors failed to order appropriate diagnostic tests. In 81 cases, the error was failure to create a proper plan for follow-up. 76 of the cases involved physician failure to obtain an adequate medical history or perform an adequate physical examination. In 67 of the cases, doctors failed to correctly interpret test results. The researchers also concluded that that factors contributing to the medical malpractice included failure of judgment (79%), lack of vigilance or failure of memory (59%), and lack of knowledge (48%). The study’s lead author, Dr. Tejar Gandhi, director of patient safety at Boston’s Brigham and Women’s Hospital, suggests that these errors could be reduced by more use of electronic medical records and the use of nurse practitioners to make sure that follow-ups actually take place.

An article in the Associated Press quotes Dr. Steven Sorscher, an oncologist at Washington University Medical School in St. Louis. As Dr. Sorscher stated concerning the study, “It seemed like the bottom line was that the problems were problems that would occur less if the person was just very compulsive or very diligent. It highlights the fact that the causes of serious errors are often preventable.”

Sources: Annals of Internal Medicine; Associated Press

Proponents of reforming the system for litigating medical malpractice case constantly harp about “frivolous lawsuits.” Physicians and the insurance industry would like the public to believe that very few of the medical malpractice cases filed are, in fact, meritorious. This myth lives in Pennsylvania because many victims of medical negligence cannot discuss their cases. Why? Because most meritorious medical malpractices are settled rather than tried and victims who settle their lawsuits and their lawyers must agree not to publicize anything about their cases, including the settlements.

The Pittsburgh medical malpractice law firm for Rosen Louik & Perry, P.C., could cite hundreds of examples of lawsuits that they have settled for their clients where doctors and hospitals were clearly negligent. However, the Medical Care Availability and Reduction of Error Fund (M-Care Fund), a taxpayer subsidized fund that insures all Pennsylvania heath care providers, has a non-negotiable condition that requires all medical negligence victims who receive M-Care proceeds (and their lawyers) to keep the settlements confidential. Moreover, in all cases involving minors and incompetent adult and in most death case, court approval of any proposed settlement is required; the M-Care Fund also requires that counsel in those cases ask the Court to seal any court-documents, which are normally a matter of public record, that would disclose the settlement. Pennsylvania judges would routinely grant requests to hide these settlements from public view. However, in recent years, an ever-growing number of Pennsylvania judges are rejecting secrecy in favor of full disclosure.

The attorneys at Rosen Louik & Perry have been personally involved in a number of cases in Allegheny County, in which Pittsburgh is the county seat, where judges have refused requests to seal otherwise public documents. The same is true in York County and McKean County. Furthermore, the Wilkes-Barre Times Leader has recently reported that Judge Mark Ciavarella of the Luzerne County Court of Common Pleas refused to seal the record of a $3 million settlement in a medical malpractice case. Judge Ciavarella, whose ruling was the same as that of Judge Terrance Nealon of Lacakawana County two years earlier, noted that allegations of medical malpractice are matters of great public concern and that settlements of such cases should be open to the public. The Times Leader also reported that the M-Care Fund paid more that $232 million in claims during 2005.

It should be noted that a number of injured victims who settle their medical malpractice cases for large amounts wish to keep their financial matters private. On the other hand, other injured victims would like the public to know about the negligent medical providers that caused their injuries to debunk the oft-heard claims of frivolous lawsuits and to allow an honest debate on the issue of the medical malpractice litigation system. The chances for an honest debate are increasing because of a growing number of Pennsylvania judges, who evidently agree with Justice Brandeis that “sunshine is . . . the best of disinfectants.”

Source: Wilkes-Barre Times Leader

The public debate over reforming the medical-malpractice legal system has long focused on extreme positions. Health-care providers and insurers call for a revamping of the entire system by capping damages and creating an administrative system of “health courts.” Victims-rights advocates, including plaintiff’s lawyers, argue that the present system works fine and no reform is necessary. It now appears that a middle ground may be emerging that can reduce litigation costs and permit a faster resolution of malpractice claims. How—by encouraging honesty by health care providers when unforeseen outcomes occur and making early settlement offers and apologizing when injuries are caused by medical negligence.

In a front-page article of the July 17, 2006 in the National Law Journal, Peter Geier reports about the idea of “full disclosure/early offer.” After correctly noting that lawsuits often result because patients and their families cannot obtain answers from their doctors, Geier notes that a number of hospital systems and insurance companies have discovered that lawsuits can be avoided by acknowledging malpractice when it occurs and promptly trying to settle the claim before any suit is filed. Hospitals employing this practice include the U.S. Department of Veterans Affairs, the University of Michigan Health System, Baltimore’s Johns Hopkins Medicine and Minneapolis’ Allina Hospitals & Clinics. Insurers include West Virginia Mutual Insurance of Charleston and COPIC Insurance of Denver.

The University of Michigan Health System initiated the system in 2002 and has seen claims (pre-suit notices and lawsuits) drop from 262 in August of 2001 to 114 in August of 2005 with less than 100 since that time. During that same period, the average claim processing period dropped from 20.3 months to 9.5, litigation costs were cut in half and the total reserves on medical malpractice claims were reduced by more that two-thirds. Similar finding were reported by the other hospitals. By avoiding lawsuits, the health-care providers can emphasize patient safety and better communication between the system and patients, which includes educating some patients as to why their injuries are not the result of negligence.

Plaintiff’s lawyers major concern is that patients are need not be told that they can consult with an attorney to fully protect their interests. However, the VA, which first implemented its system in the late 1980’s, tells veterans that they should seek counsel. Moreover, many of the plaintiff’s lawyers quoted in the article noted that in most instances, their clients were satisfied with the prompt resolution of their claims.

Both Illinois and Vermont has enacted legislation to create pilot programs to test various forms of “full disclosure/early offer;” Texas, Tennessee and New Jersey are also considering such legislation. On the federal level, U.S. senators Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.), are sponsoring the National Medical Error Disclosure and Compensation Act, a national version of the policy.

Source: National Law Journal

Medication errors injure over $1.5 million Americans each year, according to a report of the Institute of Medicine released on July 20, 2006. The report further found that 400,000 of those medical-error injuries occur in hospitals and that, on average, a hospital patient is subjected to one medication error daily. Although not included in the report, other experts estimate that as many as 9,000 deaths are caused each year by medication errors. To eliminate a large portion of these medical mistakes, the report recommends that hand-written prescriptions be replaced with a computerized system by which physicians would prescribe medications and pharmacies would receives those prescription electronically.

In addition to eliminating the long-recognized problems of legibility of hand-written prescriptions, the report notes a number of other benefits with a computerized system. The Pennsylvania Medical Society supports a system linking the electronic medical records of patients with the electronic prescriptions. The prescribing physician could receive automatic alerts if the medicine prescribed might be inappropriate. The prescribing physician could also receive information about a patient’s health insurance, permitting the doctor to prescribe a drug covered by the patient’s health insurer.

The report notes that such a computerized system could be in place by 2010, but other believe such a system will take more time. In an article in the Pittsburgh Post Gazette by Joe Fahy, a spokesperson of the state medical society is noted as reporting that less that 10% of Pennsylvania’s physicians prescribe drugs electronically. The same is true at the University of Pittsburgh Medical Center, which has been at the forefront of creating electronic health records.

Fahy also reports that Children’s Hospital of Pittsburgh uses a paperless system of prescribing medications, which, along with other benefits, can calculate the proper dosage of a medication based upon the child’s weight. Dr. Andrew Nowalk, an infectious disease specialist at Children’s, noted that medication errors have been cut in half since the system was implemented in 2002.

Source: Institute of Medicine, Pittsburgh Post Gazette

In February of 2005, legislation in Georgia went into effect that enacted sweeping medical malpractice reform severely limiting victims’ rights. These reforms limited jury awards for pain and suffering to $350,000, required tougher standards for expert witnesses and included incentives for victims to settle their cases prior to trial. At the time the reforms were proposed, promises were made that enactment of the reforms would reduce malpractice insurance premiums for the state’s doctors. A recent study by the Associated Press of state insurance records reveals those promises were empty, as six of the state’s top medical malpractice insurers have increased their premiums, some by as much as 33%.

In a scenario that is all too familiar, doctors, hospitals and other business lobbies supported the legislation, claiming that it would lead to lower insurance premiums because it encouraged speedy-out-of-court settlements and penalized victims who asserted frivolous claims. On the other hand, plaintiffs’ lawyers and patient advocacy groups countered that the proposed reforms would not reduce insurance premiums, particularly because of the lack of real competition among insurers covering medical providers. Events since the reforms became effective show that the claims of lower premiums were nothing more that wishful thinking. In fact, some of the increased premiums allowed were less than originally requested by the insurers.

An article written by Greg Bluestein of the AP noted comments by John Oxendine, Georgia’s insurance commissioner. Mr. Oxendine that he and his department have little flexibility in curbing malpractice insurance premiums because of the lack of competition. Mr. Oxendine also said that he was focusing on methods of enticing more insurers to write malpractice insurance in Georgia.

The rate increases have occasioned various comments. Allie Wall, director of consumer group Georgia Watch, said, “More than a year has gone by, yet Georgia doctors have not saved a penny on insurance, as promised, and the insurance companies are still raking in record profits.” Not all of the critical comments, however, came from opponents of reform. Dr. Kelly Thrasher, who practices internal medicine and has seen his insurance premiums rise from $9,000 to $17,000 since enactment of the reform, pulled no punches when he said, “I feel like I’ve been duped. [The debate] pitted doctors against lawyers because I think there’s a natural rivalry, but a lot of my colleagues were hoodwinked.”

Source: Associated Press

The Institute of Medicine recently released three reports warning that this country’s emergency medical system was “overburdened, under-funded and fragmented.” The Institute, an independent body that advises the federal government on health-care matters, noted that although no widespread failures in the emergency care system have yet to occur, that could all change if the system had to deal with a pandemic flu, a bioterrorist attack, or a major natural disaster.

The reports, which were published by the National Academy of Sciences, made a number of key findings. Although the demand for emergency care grew by over 25% between 1993 and 2003, the number of emergency departments and hospital beds declined during that same period. As a result, sick and injured individuals are required to wait for up to 48 hours in an emergency department for an inpatient bed to become available. Additionally, ambulances are diverted from one hospital to another on the average of once every minute. 75% of hospitals report problems with recruiting specialists trained for emergency and trauma patients. The reports also noted that the emergency medical system is particularly unequipped to handle pediatric cases. Despite the fact that children constitute 27% of all emergency room visits, a vast majority are not seen at children’s hospitals; rather, they receive emergency treatment at general hospitals, which lack the expertise, equipment, supplies and policies to properly treat children. Finally, the reports found that emergency departments are not prepared for major disasters, lacking the proper equipment and training to deal with such situations. (Emergency medical services received only 4% of the Department of Homeland Security’s first responder funding in 2002 and 2003.)

The reports also made a number of specific recommendations to fix these problems, most of which called for additional funding. For example, it was recommended that Congress increase funding to a federal program for emergency care of children to $37.5 million for five years. It was also recommended that Congress appropriate $50 million to hospitals that are not compensated for emergency care provided because so many patients have no health insurance. It was also recommended that Congress spend $88 million over five years to better coordinate emergency care. The reports also said that states should require greater accreditation for emergency medical providers.

Sources: Institute of Medicine, National Academy of Sciences

In spite of the United States Senate’s recent rejection of proposed medical malpractice reform, Senators Rick Santorum and Bill Frist were recently in Scranton again urging such reform. The American Trial Lawyers Association, whose stated goals are promoting justice for injured persons, defending the right to jury trials, and strengthening the civil justice system by disclosing information critical to public health and safety, issued a statement accusing the two senators of hypocrisy and deception.

After stating that the senators’ real reason for urging reform was to obtain campaign contributions, primarily from the insurance industry, the press release noted that Santorum was attempting to curb the rights of Pennsylvanians despite the fact that his wife had successfully sued her chiropractor for medical malpractice. ATLA also accused the pair of ignoring mounting evidence that malpractice insurance rates were rising because of price gouging by the insurance industry and not by lawsuits filed injured patients. (The statement noted that an insurance firm controlled by the Frist family was one of the most blatant price gougers.) ATLA noted a study by the Institute of Medicine that between 44,000 and 98,000 citizens die each year from medical negligence.

ATLA accused Santorum and Frist of ignoring various data and studies that showed that the justifications for medical malpractice reform could not withstand critical scrutiny. With regard to the claim that numerous lawsuits were driving up costs, the “reformers” ignored statistics release by the Pennsylvania Supreme Court that the number of medical malpractice cases filed had dropped 35% between 2000 (2632 filings) and 2005 (1698 filings). In fact, those statistics also showed that in Lackawanna County, where the pair had appeared, filings dropped 50% over that same period (71 to 35).

It is often claimed that reform is needed because Americans and Pennsylvanians are being denied access to health care. This claim, however, is refuted by a 2003 study of the Government Accountability Office that found “many of the reported provider actions taken in response to malpractice pressures were not substantiated or did not widely affect access to health care….”

ATLA’a main claim that Santorum and Frist were being dishonest was with regard to their assertion that their proposed reform would reduce malpractice insurance costs. The press release noted a number of different matters. First, a 2005 study by Public Citizen showed that the number a medical malpractice payments of behalf of physicians fell by 13% between 2001 and 2004 and that adjusted for inflation, average malpractice payments had increased less that 2% a year between 1991 and 2004. Second, a 2005 study by the Missouri insurance commissioner found that the 15 largest medical malpractice insurers had increased premiums between 2001 and 2004 by 120% in spite of the fact that payouts had increased by less than 6%. Incredibly, the insurer controlled by the Frist family had increased its premiums by 88% between 2000 and 2004 despite a corresponding 32% drop in claim payments. Finally, ATLA noted a number of statements from insurance industry executives that the proposed reform would not lead to a reduction in insurance premiums.

Sources: ATLA, Public Citizen, Government Accountability Office, Institute of Medicine

The North Carolina Court of Appeals has ruled that the North Carolina Medical Board did not have grounds to suspend the license of a physician who testified as an expert witness for plaintiffs in a medical malpractice case against two North Carolina physicians. In a unanimous decision dated June 6, 2006, the court of appeals ordered the trial court to dismiss all disciplinary actions the medical board had filed against Dr. Gary J. Lustgarten, a board certified neurosurgeon from Miami, Florida.

Dr. Lustgarten, the first doctor sanctioned in North Carolina in connection with testifying as an expert witness in a medical malpractice case, had testified in a 1998 case that the two North Carolina neurosurgeons had been negligent for at least four separate reasons. On cross-examination, Dr. Lustgarten also questioned certain testimony given by one of the defendant doctors. Following a hearing in 2002, the North Carolina Medical Board ruled all of Dr. Lustgarten’s testimony constituted unprofessional conduct and revoked his North Carolina license. The Wake County superior court reversed the medical board with regard to Dr. Lustgarten’s testimony concerning negligence but upheld its finding of unprofessional conduct with regard to the testimony concerning the defendant doctor’s credibility. The court of appeals, however, completely vindicated Dr. Lustgarten and ordered that all charges against him be dismissed.

In an interview with the Greensboro News & Record, Dr. Lustgarten indicated that he believed the medical board’s actions were an attempt to intimidate him and others from testifying on behalf of patients and against fellow physicians. Despite the charges, Dr. Lustgarten has continued to testify on behalf of plaintiffs in other cases. He is considering possible legal action against the medical board. A representative of the medical board said that the board has not decided whether it will appeal the decision.

Dr. Lustgarten’s case is not the only one of this sort. At present, similar sanctions against two doctors are being reviewed by appellate courts in both Texas and Florida. Both of those doctors are represented by John Vail at the Washington based Center for Constitutional Litigation. Vail indicated that the efforts at intimidation are working as a number of physicians have told him they have decided against testifying because of the threat of sanctions and long legal battles. When physicians decide not to testify against their fellow doctors, many victims of medical malpractice suffer additionally because of the inability to press legitimate claims.

Source: ATLA Law News Digest, Greensboro New & Record

Dr. Lisa Marcucci, a trauma surgeon formerly associated with Geisinger Medical Center, has written a book entitled “Avoiding Common Surgical Errors.” In it, she identified 186 medical mistakes, some of which could involve serious consequences to patients. Dr. Marcucci’s stated goal—to help prevent such errors in the future.

In an interview with the Times Leader, a Wilkes Barre online newspaper, Dr. Marcucci stated that she was motivated to write on this subject because of numerous surgical errors that she has both seen and heard about. She related that, as a second-year resident, she attended a conference about medical errors and learned of two mistakes made by other second-year residents. One patient died after the resident removed a chest catheter while the patient was sitting upright. Another patient lost a hand after a resident attempted to draw blood from two large arteries in the same arm at the same time. Despite attending a top medical school and having completed a year of residency, Dr. Marcucci had never been taught that the actions of the two residents constituted mistakes.

Dr. Marcucci noted that doctors often confer to review errors and how to avoid them. She noted, however, that the results of such conferences fail to reach a broad enough audience, particularly medical residents (including approximately 2,300 new surgical trainees annually), interns, and young attending doctors. This latter group, as well as physician assistants and nurse practitioners, are the primary target audience of Dr. Marcucci's book. Twenty-six other physicians contributed to the book.

In the future, Dr. Marcucci plans to write a series of book on medical errors in a number of different areas of medicine. She is also developing a web site for patients planning to undergo surgery and their families. Dr. Marcucci finally noted that even though doctors in this country practice the best and safest medicine in the world, room for improvement exists and she hopes her efforts will lead to such improvement.

Source: The Time Leader

At the invitation of the University of Pittsburgh Medical Center’s risk manager and director of patient safety, Neil Rosen recently spoke to physicians associated with UPMC about being deposed as a defendant during the discovery phase of medical malpractice litigation. Rosen, who almost exclusively represents plaintiffs in medical malpractice cases, cautioned those in attendance that they should take their deposition very seriously, as a poor performance makes defense of the case more difficult and increases the value of the case from the victim’s perspective.

Rosen’s main thrust was to emphasize that physicians should adequately prepare when they are about to be deposed as a defendant. After briefly explaining what happens at a deposition, Rosen informed his audience that anything said is response to questioning becomes a permanent part of the record of any malpractice case. Although defendant-physicians could later change their testimony, they would be forced to explain any such changes, a situation that any experienced civil litigator can exploit by, at a minimum, seriously undermining the credibility of the doctor.

Rosen explained that all successful attorneys who represent plaintiffs understand the importance of a defendant-doctor’s deposition and, accordingly, take preparation very seriously. That preparation includes a thorough review of the patient’s entire medical record pertaining to the incident in question. As a result, it is also incumbent on the defendant doctor to conduct a similar review of the record. Rosen also informed the audience that preparation by him includes extensive medical research on the issues involved so that doctors being deposed should be prepared for questions from an attorney who has much more than a mere cursory understanding of the medicine involved.

As a part of the program, a reenactment of an edited actual deposition taken by Rosen was performed, with Rosen pointing out a number of common mistakes made by defendant-doctors. The program, which was attended by well over 100 physicians, nurses, and risk managers and lasted nineth minutes, concluded with a question and answer period.

Proponents of reforming the medical malpractice litigation system often claim that reform is needed to curb frivolous lawsuits. The proponents of reform argue that frivolous lawsuits are the primary reason for high malpractice insurance rates, which are causing physicians to leave Pennsylvania. However, a study conducted by a number of health professionals and recently published in the prestigious New England Journal of Medicine suggests that such claims are greatly exaggerated.

After carefully reviewing and analyzing 1452 closed medical malpractice files submitted by insurers to determine if a medical injury occurred, and if so, whether it was caused by medical error, this study reached two general conclusions. First, the authors clearly stated that the claims of reformers were “overblown.” Second, they determined that the medical malpractice system was able to differentiate between non-meritorious and meritorious claims.

These conclusions were supported by a number of different study findings. Although it was determined that non-meritorious claims were filed, a vast majority of those claims received no compensation. Conversely, most of the compensation was actually paid to those individuals who were injured as the result of medical errors. (Interestingly, when non-meritorious claims were presented to a jury, compensation was almost never awarded, thus debunking the myth that juries were unable to effectively analyze medical issues.) The results were the same when considering the costs of litigation other than actual compensation paid to plaintiffs; a vast majority of costs were attributable to meritorious claims. Thus, these findings support the study’s conclusion that reforms being proposed would have a little effect on reducing total litigation costs. Further, if litigation costs were not reduced, it is safe to assume that such reforms would also have little effect on reducing malpractice insurance premiums.

In a similar vein, the Pennsylvania Supreme Court recently released statistics concerning medical malpractice cases in Pennsylvania. In early 2003, the supreme court reformed its civil procedural rules and required plaintiffs, before proceeding with malpractice litigation, to obtain an opinion from a health-care provider that the plaintiff’s claim was meritorious. After this change became effective, statewide medical malpractice filings dropped by almost 40%. Those same statistics revealed that the number of large jury verdicts had not increased over prior years.

Despite the supreme court’s reforms, which undoubtedly reduced the number of frivolous lawsuits, malpractice insurance rates for physicians continued to rise. As Chief Justice Ralph J. Cappy noted in an interview concerning the release of the statistics, “There still is a problem with the malpractice insurance rates, and we can’t ignore that. But I’m virtually certain that those rates aren’t being affected by [actions of our] judiciary or an out-of-control legal profession.”

Sources: New England Journal of Medicine, Pennsylvania Law Weekly

While the concept of medical malpractice normally connotes mistakes made by highly-trained medical professionals, the Pennsylvania Supreme Court has recently made clear that the failure to properly perform a normal, every day activity such as bathing a patient can be medical malpractice. In Strine v. Commonwealth of Pennsylvania, a four-member majority of the court has ruled that the act of bathing a totally-dependent-elderly patient is a medical service under Pennsylvania law, thus triggering insurance coverage from Pennsylvania’s former Medical Professional Catastrophe Loss Fund (CAT Fund).

Marie Barnes was a resident of Chester Care Health Center, a commonwealth-licensed nursing home. Ms. Barnes, who was seventy-five, suffered from severe dementia, and could not walk, speak, or feed herself. Because she was bedridden and suffered from bedsores, Ms. Barnes’s doctor ordered a daily whirlpool bath to treat the bedsores. However, Chester Care did not have a whirlpool bath; as a result, Ms. Barnes was bathed every day as opposed to the normal practice of bathing patients twice a week. In June of 1996, a certified nursing assistant employed by Chester Care drew a bath but failed to check the water temperature, which was 138 degrees. When the nursing assistant placed Ms. Barnes in the bath, she suffered severe burns and died three days later.

Chester Care agreed to settle a wrongful death action for $1.5 million. Under then existing Pennsylvania law, Chester Care’s first $200,000 of insurance coverage was provided by a private insurance company. The next $1 million of coverage was provided by the CAT Fund. (At present, the second level of coverage is now provided by the Medical Care Availability and Reduction of Error Fund, though the required amounts of primary coverage and MCARE coverage are now only $1 million, as opposed the previous $1.2 million.) However, the CAT Fund refused to pay its coverage, arguing that it insured only for “professional liability” “resulting from the furnishing of medical services which were or should have been provided,” and that bathing Ms. Barnes was not a “medical service.”

In an opinion authored by Justice Saylor (and joined by Justices Newman, Eakin and Baer), the Supreme Court rejected the CAT Fund’s argument, relying primarily on the fact that Ms. Barnes was totally dependent on others for all activities of daily living. The Court also noted that Ms. Barnes suffered from bedsores, which could be treated with daily baths. Furthermore, the court rejected the CAT Fund’s argument that no special skill other than a “strong back” was need to bathe Ms. Barnes, pointing out that the nursing assistant’s required formal training included instruction on bathing. As the court concluded, “Administering a bath under these circumstances . . . falls outside the scope of general custodial care which can be performed adequately by an untrained employee.” Chief Justice Cappy filed a dissenting opinion that Justice Castille joined.