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Medical Malpractice

Monday, April 10, 2017

Leading Reasons for Medical Malpractice

People who need medical care put their trust in doctors, hospitals and other healthcare providers. When that trust is violated and a patient is injured because of a medical mistake or incompetence, there may be grounds for a medical malpractice lawsuit. This is a brief overview of leading reasons for medical malpractice.

Misdiagnosis or Delayed Diagnosis

Many medical practice claims arise from misdiagnosis or delayed diagnosis. A patient whose injury or illness is not accurately or quickly diagnosed may not receive the necessary treatment and suffer serious harm or death. Having a valid claim requires demonstrating that a reasonably skilled doctor would not have made the same mistake under the same circumstances.

Medication Errors

Medication errors occur when the wrong drug or dosage is prescribed or the medication is not properly administered. These errors often occur when hospitalized patients are given the wrong drugs or equipment such an IV pump malfunctions and overdoses a patient. In most cases, prescription errors cause patients to receive to little or too much of a medication, often with catastrophic consequences.

Surgical Errors

A variety of mistakes can occur during surgical procedures. In some cases, a negligent surgeon may operate on the wrong bodypart, fail to close a bleeding vein or artery, puncture a vital organ, or leave sponges or surgical instruments inside a patient's body. In addition, the nursing staff may be negligent during post-operative care by failing to notice complications.

Anesthesia Errors

Mistakes by anesthesiologists are especially dangerous and even a small error can lead to a permanent injury or death. These mistakes have a variety of causes, such as defective equipment or patients not being properly intubated. In many cases, injuries arise when anesthesiologists fail to adequately review a patient's medical history and administer too much anesthesia.

In the end, the fact that a doctor, hospital, or other medical professional makes a mistake does not mean they were negligent. In order to have grounds for a medical malpractice lawsuit, it is necessary to demonstrate that medical professional failed to provide the appropriate level of care.


Monday, February 6, 2017

Medical Malpractice


There are always certain elements that need to be demonstrated in order to bring a successful malpractice action. For example, the treating doctor must have had a legal obligation to provide this medical care to this particular patient and there must have been a "breach," that is, an intentional or unintentional infraction or violation of the law. A breach usually occurs when the doctor fails to follow the “standards of the profession.” 

Medical malpractice is a tort (civil wrong) that may fall under a “negligence” action.  Negligence by a medical professional typically occurs when he or she neglects to protect a patient “from a foreseeable risk of harm.
Read more . . .


Wednesday, August 26, 2015

Three Real Examples of Medical Malpractice

Daryoush Mazarei: Unfortunately, it is not unheard of for a surgeon to leave a piece of equipment inside of a patient after an operation has been completed. Even though there are procedures in place to prevent this, doctors are human, and mistakes happen on a regular basis. What makes the case of Daryoush Mazarei so notable is that after the surgery, when Mr. Mazarei returned to the hospital complaining of intense pain and attempting to show the health care professionals the end of the 10 inch retractor that was protruding from his ribs where his surgeon had left it, he was told that his pain was in his head and referred him to a psychiatrist.  Eventually the retractor was removed. Mr. Mazarei’s case was settled out of court and the hospital apologized.

Dr. Farid FataDr. Fata is currently serving a 45-year sentence in prison after improperly diagnosing more than 550 patients for profit.  He prescribed extensive rounds of radiation and chemotherapy to patients who did not need it and treated terminal cancers aggressively instead of letting his victims die peacefully in order to rake in more than $17 million from fraudulent bills.  Although Dr. Fata’s fate has been decided, his victims and their heirs are still engaged in a court battle to determine if they will be compensated for Fata’s egregious conduct.

Jesica Santillan: It is especially tragic when a young person’s life is cut short by a terminal illness.  Jesica Santillan’s parents moved to North Carolina from Mexico when they discovered that Mexican doctors could not properly treat their daughter's heart and lung disorder. A local builder heard their story and started a charity to raise money for Jesica's transplant. Just as the family was filled with hope, a careless mistake was made. No one at the hospital checked to make sure the donated organs matched Jesica’s blood type before the surgery, and as a result, her body rejected the transplant, shutting her system down and causing her death two weeks later.  Santillan’s family settled out of court with the hospital for an undisclosed amount, but they will never get their daughter back.

Bryan Mejia:  Bryan Mejia was born with one leg and no arms because West Palm Beach doctors failed to properly read ultrasounds that would have disclosed his deformity.  His parents were awarded $4.5 million by a jury as a result.

Although these cases demonstrate extreme examples of medical malpractice, not every case is so obvious.  Only an experienced attorney can properly advise you if your case rises to the level of medical malpractice. 


Friday, July 17, 2015

Wrong-Site Surgeries Increase in Number

Imagine that you’re a patient going in for routine surgery.  Now imagine that you’re one of 40 U.S. patients a week who awakens from anesthesia– only to find that your surgeon has operated on the wrong site.  Say for example, your right leg instead of your left leg. What would you do? Sue your doctor? The hospital? A surprising report from The Joint Commission, which accredits and certifies healthcare organizations in the United States, finds that the problem of wrong-site surgery has worsened, not improved.  More and more medical patients are waking up to find that their doctors made an error in a common surgical procedure. 

According to Kaiser Health News, wrong-site surgeries continue to occur on a regular basis. This comes years after the president of The Joint Commission introduced mandatory rules aimed at preventing surgeons from performing procedures on the wrong site.  The study found that wrong-site surgery occurs an estimated 40 times a week in U.S. hospitals and clinics. However, according to the commission, which encouraged surgeons to submit cases of error, only 93 cases were reported in 2010.   

According to the commission, reporting of such incidents is voluntary and confidential.   This policy is in place to encourage doctors and hospitals to come forward .  Aside from the commission, the laws in about half the states, do not require reporting.   

Despite campaigns to encourage surgeons to participate in a timeout at the start of every surgery, where each surgical team takes a moment to verify the procedure to be performed, the article posits that the mistakes may be explained by the increased time pressures surgeons face. Because reporting is not required by many states, the number of estimated wrong-site surgeries could be a gross underestimation. 

Interestingly, a smaller percentage of wrong-site procedures are litigated in medical malpractice suits than one might think.  Settlements in these cases are substantially lower than those where the wrong-site patient seeks representation. 

According to a 2010 study, which reviewed 132 wrong-site cases, about one-third of procedures resulted in death or serious injury.   Despite these horrific outcomes, the average compensation to victims was approximately $80,000 in cases that resulted in a lawsuit and $47,000 in cases settled without legal action.  As incidents of wrong-site surgery continue to increase, patients and their advocates should continue to press for more accountability from their hospitals and their doctors. 


Monday, June 29, 2015

What is a class action lawsuit?

Normally when a person suffers an injury as a result of another person’s mistake or wrong doing, that injured party has the right to file a lawsuit.  Sometimes, an injured party has a right to join a lawsuit that involves a large group of people.  These types of lawsuits are commonly referred to as class action lawsuits.  In these cases, the party who filed a lawsuit must be able to adequately represent the interests of all those who were also allegedly injured by the actions of the defendant.

A court must certify a class action lawsuit.  In order to be certified as a class, two main criteria must be met.  First, all the questions of law or fact in dispute must be common to all plaintiffs in the class.  That means that if a case requires that a plaintiff prove facts specific to his or her own case, it should not be included in the class.  Second, the number of plaintiffs must be large enough to make it impractical to try each case individually.  That number varies and will be decided on a case-by-case basis. 

The point of the class action is to maintain judicial efficiency.  The court system would be bogged down if every single person who purchased a drink with an improper label filed a separate lawsuit claiming unfair business practices.  The legal costs to the defendant would be obscene.  The logistics of bringing the same witnesses to court to testify over and over again would be impossible to deal with.  Class action lawsuits also serve to hold companies accountable for small mistakes that affect many people.  A company that practices deceptive advertising may only trick each consumer out of the price of one of their goods, hardly worth a lawsuit, but when hundreds of consumers band together to enforce their rights, justice is better served.

Once a group of individuals files a lawsuit against a defendant for an alleged wrongdoing, they are responsible to seek out other people who might have been affected and offer them an opportunity to join the class.  Each individual can choose whether to join the class and accept the settlement presented to the entire class, or to preserve his or her own right to file his or her own lawsuit.  Common class action lawsuits include suits resulting from an environmental disaster such as an oil spill, prescription drugs with unforeseen side effects, defective products, misleading advertising, price fixing and price gouging, securities fraud and employment discrimination suits.


Thursday, June 18, 2015

What is tort reform and what are some of the criticisms of it?

Tort reform is the name commonly given to a proposed solution to the rising healthcare costs in America.  Some people believe that medical malpractice lawsuits are the main reason why the United States has such high healthcare costs.  The argument is that because doctors are afraid of being sued, they have to conduct more tests than is reasonable.  Essentially, doctors complain that they are forced to be too thorough.  Also, it is believed that hospital bills are high because malpractice insurance premiums are high.  Therefore, by limiting the maximum amount that a Plaintiff could win in a lawsuit, malpractice insurance costs would be reduced, doctors would be free to practice as they see fit and prescribe fewer tests, and the savings would be passed on to the patients. 

This line of thought is not without criticism.  While doctors and insurance companies would surely benefit greatly from putting a cap on the amount of money damages awarded in medical malpractice awards, there is no cap on the amount of damage a doctor might do by making a mistake.  In the case of Colin Gourley, an OBGYN’s negligent prenatal care of Colin’s mother led to the boy being born with severe birth defects including physical, cognitive, and behavioral problems.  He was quickly diagnosed with cerebral palsy.  He will require round the clock care for his entire life.  A jury found that the hospital and the doctor should be responsible for these costs, and awarded the family $5,625,000.00 to cover the damages.  However, because of a law capping damages in such a case, their award was limited to $1.25 million, leaving a middle-income family with a bill of $4,000,000.00 that they had no means of paying.  This is only one case of many which demonstrates the real cost of putting a cap on damages.

The consequences of tort reform affect those who suffer the most as a result of medical mistakes.  Also, the amount of the cap is arbitrary and inherently unfair to those who were mistreated by the medical professionals in the first place.  The proponents of tort reform might better serve society by putting their efforts into lowering healthcare costs by coming up with a way to reduce medical error and inefficiencies. 


Tuesday, June 2, 2015

What is soft tissue damage and how is it treated?

Soft tissue damage refers to damage done to the muscles, ligaments, and tendons throughout the body.  Often referred to as sprains, strains, contusions and tendonitis, soft tissue damage is usually caused by a traumatic event such as a slip and fall or a traffic accident.  It can result in swelling, bruising, and loss of function.   Immediately after an injury, the area affected by soft tissue damage should be protected, rested from any strenuous activity, kept cool with ice to regulate swelling, compressed and elevated.  If pain continues after 72 hours, it is likely that the injury is more than a simple sprain or strain.  When the soft tissue is inflamed for a long period of time it could result in serious, long-term damage.

When soft tissue damage exists in the back and the spinal column is compressed, it may result in what is commonly referred to as a pinched nerve.  Each vertebrae is separated by a gel filled sac that acts as a cushion between the bones.  When the muscles surrounding and supporting the spine are inflamed, it pushes the bones together, squeezing the sac and causing it to bulge, called a bulging disc.  In more serious cases, the sac actually ruptures.  This is called a herniated disc.  Besides being incredibly painful, these conditions can result in weakness or numbness in the extremities, known as radiculopathy.

MRI can confirm the existence of a bulging or herniated disc.  Treatment varies depending on the severity of the case.  For some, physical therapy and chiropractic manipulation will be enough to heal the damaged area.  This is considered conservative treatment.  There is the possibility that an epidural injection to the affected area could help reduce inflammation and give the injury an opportunity to heal.  If nothing else is successful, spinal fusion or decompression may be an option to reduce pain. A doctor should be consulted before engaging in any sort of treatment.  


Sunday, August 10, 2014

Choosing a Litigation Attorney

If circumstances have required you to get involved in litigation, you may find the process of selecting an attorney to be overwhelming.  There are, however, some steps you can take to make the selection process a bit easier.

First, you should consider hiring someone who specializes in your type of case. If you had an automobile accident, consider hiring an attorney who exclusively practices personal injury law and preferably one with a track record of success in car accident cases. If you were wrongfully fired, hire a litigator with experience in employment rights.

Since you and the attorney you choose will be working very closely together, it’s important to choose someone with whom you feel comfortable.   How long has the attorney been practicing law? Has the attorney ever handled a case like yours before? What was the outcome? How much are fees and how are they paid? Does the attorney seem like he or she is concerned about your case? Does the attorney seem knowledgeable about the area of law?   Does the attorney articulate himself clearly and effectively?  Does he have a credible and trustworthy demeanor?  Remember, a judge or jury may be making the same assessments down the line.   

With respect to fees, most attorneys will take a personal injury case on a contingency basis, meaning that you only pay if they succeed, typically about one-third of the judgment or settlement amount.  You may be able to negotiate the percentage, especially if your damages are significant and your case against the potential defendant strong.  In addition to contingency fee structure, you should also be aware that many attorneys will bill for “out of pocket expenses” such as $0.25 per page for photocopies, $1.00 per page for faxes and cost of hiring experts and consultants.  Again, depending on the strength of your case, you may be able to negotiate these terms.  If you’re involved in a commercial or contract dispute, most such cases are billed on an hourly basis.  If you’re a plaintiff, a hybrid fee structure whereby you would pay a lower hourly fee but provide the lawyer with a percentage of the settlement may be an interesting option.

It’s also a good idea to find out how long the attorney believes the case will take. Obviously, many factors are beyond your attorney’s control, but you should be able to determine a general timeline and what type of resources the attorney will commit to your case.   It’s also important to know how you will be kept updated throughout the proceeding. It can be very frustrating if your attorney does not keep you informed on the status of your case. Ask the attorney how he or she plans to communicate with you and how often you can expect a status report.

Choosing an attorney is a big decision. Before you decide to choose one based on the number of television commercials he or she runs, or the size of the yellow pages ad the firm maintains, it’s important to sit down with the attorney to make sure the relationship is the right fit for your case.


Wednesday, July 23, 2014

Expert Witnesses Can Be the Key to a Lawsuit

In civil cases, plaintiffs have the burden of proving defendants are to blame for their injuries or economic losses by a preponderance of the evidence, which essentially means, that based on the evidence, the defendants were more likely than not responsible for the injuries.  That can be a lot more complicated than it sounds  Expert witnesses can be a critical key to success in winning over the jury and winning these complex matters.

 
Take the case of Margaret Wellinghorst.  In November 2007, she was walking her dog when she tripped on the edge of a trench that had been dug in the road.  She fell and injured her left hand.   With the help of her attorney, to get compensation for her injuries, she sued the companies responsible for creating and filling in the trench and repairing the road.
 
Ms. Wellinghorst had the burden of proving that the defendants owed her a duty of care, defendants breached that duty and as a result, she suffered injuries.  The fact that she tripped over the edge of a trench created by defendants and was injured, simply wasn’t enough to win her case.  She had to prove negligence by defendants.  To do that, an expert witness was introduced to show defendants did something wrong which consequently injured the plaintiff.   
 
Expert witnesses are used to introduce evidence that’s scientific, technical or specialized in nature.  It’s the kind of evidence that the average person isn’t qualified to introduce, or to render a judgment upon, given the facts of the situation.
 
Ms. Wellinghorst’s expert witness was William Poznak, a civil engineer with over 30 years of professional experience.  He examined the roadway, took measurements, took photographs and created a report.  He observed that the section of trench under the road sunk uniformly over the years, while the rest of the road did not.  In a deposition, Mr. Poznak gave the opinion the trench was backfilled improperly, which lead to the surface sinking and Ms. Wellinghorst’s injury.  
 
Mr. Poznak’s opinion was that the defendants did their work negligently.  But all he had was his opinion and that’s not enough.  He couldn’t say why that area of road sank, thus had no facts to back up his opinion.  Defendants’ attorneys brought up two possible tests that he could’ve done to help determine what happened.  Mr. Poznak admitted he had performed neither.  
 
The expert was unable to perform the key role he was hired to do.  He couldn’t explain why the area of the trench sank into the roadway.  If he couldn’t do that, he had no factual basis for his opinion that the defendants did something wrong or did something negligently which resulted in plaintiff’s injuries. Since the plaintiff had no other experts, and Mr. Poznak’s testimony was the best the plaintiff could do, Ms. Wellinghorst’s case was dismissed.
 
A legal case is like a chain in that it is only as strong as its weakest link.  Competent attorneys will test every link to its limits.  In this case, the weak link that broke the case was the expert testimony.  In our cases, we hire the right experts who are knowledgeable and experienced, and are able to communicate effectively in a courtroom.
 

Friday, May 23, 2014

“We Don’t Get Paid Unless We Win” – What does it all mean?

Each day, thousands of advertisements for personal injury lawyers can be found in local newspapers, on television stations and even on social networks like Facebook and LinkedIn. Most of these ads explain that the firm doesn’t collect any fees unless they win. Of course, there’s usually a catch with this statement and it centers around what the advertising firm means by “fees” and what other costs you might be expected to pay regardless of whether or not you win your case.

Attorney fees usually involve the time and labor of the attorneys and their staff. These fees do not include the out-of-pocket case costs that are inevitable in any court proceeding. So while you may not be required to pay any attorney fees upfront or at all (unless you win), you may be required to pay all related case costs. Case costs are usually expenses charged by third parties for work on your case. These may include court filing fees, expert witness fees, cost of obtaining medical records, court reporter fees, etc. Depending on the scope of your case and the duration of these proceedings, these fees can easily be thousands of dollars.

While some firms will require you to pay case costs as they are incurred, others won’t require upfront payment (especially, if you have a very strong case) and will instead deduct these expenses from the final settlement. Combined with legal fees, these costs may add up to 50% or even more of the settlement. In selecting an attorney for your personal injury matter, it’s important that you take time to understand what expenses, in addition to attorney fees, you will incur.


Wednesday, April 30, 2014

Federal Agency Proposes a Centralized System for Reporting Medical Errors

Currently, there is no centralized system to report hospital or medical malpractice, and research indicates that reporting rates are very low.  The federal Agency for Healthcare Research and Quality (AHRQ) has proposed a new, centralized system for consumers to file complaints about harm suffered while receiving medical care.  


Information About Reporting Rates for Medical Errors
Because no centralized complaint agency exists for reporting medical malpractice, accurate statistics about the medical error rates in the United States are difficult to come by.  A 2010 review of medical records by the inspector general of the Department of Health and Human Services (HHS) revealed that about 134,000 Medicare patients were harmed in the hospital in a single month. Another HHS report revealed that hospitals report only about 1 percent of adverse medical events they are required by state law to register.  The report went on to state that the low percentage is most likely due to hospitals’ failure to identify medical errors that occur in their facilities, as opposed to failure to report known medical errors.

In short, available data suggest that hospital error reporting does not accurately reflect the number of hospital errors that actually occur.  The data also suggest that one reason for low reporting may be that hospitals do not have accurate systems in place to identify adverse medical events resulting from medical negligence or medical malpractice.

Why Are Hospital Errors and Medical Malpractice Incidents Rarely Reported?
Hospitals may need to improve their reporting procedures if hospital error data are to more accurately reflect reality.  There are other reasons for low reporting rates, as well.  Patients who suffer from hospital errors may be too traumatized to make the report, they may be focusing on other aspects of their lives after a disabling medical error, or they may find the current reporting bureaucracy too complex to navigate.  Without a centralized reporting system, patients and their families must choose from several different complaint options:

  • The state medical professional licensing board
  • The state public health department
  • The Joint Commission, which accredits hospitals
  • A Medicare Quality Improvement Organization

These different agencies do not have procedures in place to communicate complaints among one another, and no agency collects accumulated data from all agencies into a centralized location.

Summary of the Agency for Healthcare Research and Quality’s Proposed Program
The AHRQ’s proposal is to design a prototype system to collect information about patient harm events, to test telephone and internet patient questionnaires, and to test follow-up surveys of health care providers after a report of hospital error.

You can Visit the Federal Register Website for information about commenting on the AHRQ’s medical error complaint prototype system.
 


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Richard F. Silber is admitted to practice in Washington, D.C. and Maryland. From his office in Georgetown, he and his legal team assist clients throughout the Washington metropolitan area.



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| Phone: 202-338-0687

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