Abramson, Brown & Dugan Attorneys

A NY jury found in favor of a mother who was injured during childbirth.  34 year-old Tina Holstein, a home health nurse, entered Community General Hospital in Syracuse NY to give birth to her third child.  After the child was delivered Holstein began vomiting.  She was administered an injection of an intramuscular drug in order to stop the vomiting.  However, the injection was administered properly and caused permanent injury to her sciatic nerve.

The jury found for Tina Holstein and awarded her damages of $1.69 million for the 2007 birth injury.  While the medical malpractice lawsuit against the nurse who gave the injection was dropped, the jury found the hospital vicariously liable for the nurse's wrongful actions.

The FDA has recalled Baxter International's Colleague infusion pumps after the company failed to take proper and timely corrective action to fix problems with the IV pumps.  "Baxter has failed to adequately correct, within a reasonable timeframe, the deficiencies  in the Colleague infusion pumps still in use," the FDA wrote in a letter it sent Baxter on Tuesday.

The IV pump recall affects approximately 200,000 pumps that are primarily used in hospital settings.  The pump defects can be serious because they may shut down or failed to deliver the correct amount of medication to the patient.

Electronic infusion pumps in general have come under FDA scrutiny recently as the federal agency has received an increase in the number of adverse events involving the IV pumps.

The Washington State Supreme Court has struck down a state law that requires a 90 day waiting period prior to filing a medical malpractice lawsuit.  The waiting period legislation was one of several legislative changes made concerning medical malpractice cases in 2006.

The Washington Supreme Court overturned the waiting period requirement because, according to the Court, the notice violated the separation of powers between the legislative and judicial branches of government.  The 6-3 ruling marks the second time in a year that the courts have rejected attempts by the state legislature to reform medical malpractice procedures.

Another legislative attempt at malpractice reform was thrown out by the courts last September.  The court ruled that a law requiring injured parties to first obtain a certificate of merit before filing a medical malpractice lawsuit was a violation of the separation of powers' doctrine as well as an undue restriction on a citizen's right of access to the judicial system.

According to the Seattle Post Intelligencer, "The courts already have procedural rules for filing civil suits, and adding a 90-day notice "conflicts with the judiciary's power to set court procedures," Justice Charles Johnson wrote for the majority.

Civil lawsuits against GlaxoSmithKline, the manufacturer of Paxil, an antidepressant drug belonging to the class of drugs known as selective serotonin reuptake inhibitors or SSRIs, have settled prior to trial in Philadelphia.  According to the National Law Journal, only one of the Paxil lawsuits have gone to trial. 

The birth defect lawsuits allege that pregnant women who've taken Paxil to fight depression are at a greater risk of giving birth to babies who suffer from birth defects, particularly cardiac defects. 

In 2005, the FDA issued a Public Health Advisory regarding Paxil side effects and warned healthcare providers about two studies linking Paxil to a higher risk of birth defects in children whose mothers had taken the drug. 

In 2006, the FDA instructed GlaxoSmithKline to change the drug label to include a warning about specific birth defects including Persistent Pulmonary Hypertension (PPHN), a serious respiratory disorder that prevents the newborn from receiving proper amounts of oxygen.

Last October, GlaxoSmithKline lost the only Paxil trial.  The jury awarded the family $2.5 million because its child was born with heart defects.  The jury in that case found that GlaxoSmithKline failed to warn doctors concerning the serious side effects of Paxil, including serious birth defects.  It also found Paxil to be a "factual cause" of the birth defect in the child. 

Since that trial, GlaxoSmithKline has chosen to settle its other Paxil lawsuits.  Other drugs in the same family of drugs as Paxil include Lexapro, Celexa, and Prozac.

Georgia is the latest state to overturn a cap on medical malpractice claims.  The Georgia Supreme Court cited the cap's unconstitutionality as the basis for overturning the state legislature's cap on damages in medical malpractice cases in Georgia. 

According to the National Conference of State Legislatures, 30 states have medical malpractice damage caps.  The trend started in California in 1975 and was popular for a short time. During the following decade, courts began to review these caps and find them, in some instances, unconstitutional. 

Besides Georgia, Washington, Oregon, Illinois, and Wisconsin have struck down the damages' legislation as unconstitutional.  The foundational argument in each of the cases has been that the damage caps violate the separation of the two branches of government-legislative and judicial.

 

The NH medical malpractice fund, known as the Joint Underwriting Association fund was created in 1975.  It was founded to provide affordable medical malpractice insurance to high-risk health care providers.  Presently, the fund has a $110 million surplus and Governor Lynch wants to tap the fund to balance the budget.  Doctors claim the surplus is theirs and are demanding the money.  The dispute has ended up in court. 

Thus far, a Superior Court judge and the NH Supreme Court have ruled in favor of the policyholders.  The dispute continues and may be decided by the courts if they decide to accept the case.  A decision is expected in approximately one week.

According to WebMD, some 99,000 Americans die each year from preventable hospital infections.  While this is an alarming number, the more disturbing fact is that the nation's hospitals are only beginning to deal with the problem.  For years, government officials assumed hospitals knew their infection rates but declined to make them public.  In fact, most hospitals weren't tracking the data and had no idea about their actual infection rates. 

Lisa McGiffert, who as campaign manager for Consumers Union's Safe Patient Project advocates for states to push hospitals to track the data. 

"When we started, we thought hospitals knew their infection rates and were keeping them secret.  But they were not tracking them at all. If you are not aware of something you can't stop it. Where hospitals have been forced to face this and count it, it has created a sea change," McGiffert told WebMD. 

Kathleen Sebelius, Health and Human Services Secretary has vowed to change the culture in which these statistics are not tracked.  "All 50 states, Washington, D.C., and Puerto Rico recently published state action plans to reduce hospital-acquired infections," Sebelius says in a news release.

Once the infection data is collected and reported to the Centers for Disease Control it is hoped that prevention measures can be implemented so that the number of patient deaths from hospital infections will be drastically reduced.

A Maryland woman who sued two doctors for a botched surgery intended to repair blocked arteries.  The surgery malpractice left the woman a paraplegic.  Dr. Roger E. Schneider and Dr. Mark D. Gonze were sued by Victoria Little in 2008 after the 2007 surgery.  The lawsuit alleged that the doctors failed to comply with accepted medical standards of care and used an inappropriate grafting technique in the surgery to repair her arteries. 

Last week, a jury found for Ms. Little and awarded her $1.3 million in noneconomic damages, $2 million for future medical expenses, and $200,000 for past medical expenses.  The doctors' attorneys said they plan to appeal the verdict.

Drug maker GlaxoSmithKline has settled some 700 cases involving its diabetes drug Avandia, according to a Bloomberg news report.  The Avandia lawsuits alleged that the drug caused them to suffer heart attacks and strokes.  The settlement is reported to be around $60 million for the 700 claimants.  That does not resolve all of the Avandia lawsuits, however.  There are some 9,000 more claims that have not been filed under an agreement between the claimants and GlaxoSmithKline lawyers. 

The first Avandia trial is due to begin this July in state court in Philadelphia.

A cerebral palsy birth injury lawsuit was settled for $9.5 million against Sherman Hospital in Elgin, Illinois, Dr. Jae Eun Han and Mary Traub, a midwife for negligence in the botched birth of Patrick O'Came who suffers from cerebral palsy as a result of brain injuries suffering during the birthing process.  The lawsuit also alleged that the midwife was allowed to perform the delivery alone even though a doctor's availability is required.  When the birth experienced complications and the fetal heart rate dropped, the midwife performed a risky procedure rather than summoning a physician for help.  The baby's umbilical cord was compressed, depriving the child of oxygen for the last 15 minutes of the delivery.  As a result, Patrick O'Came was born with cerebral palsy and suffered debilitating and permanent developmental disorders. 

Cerebral palsy is often a result of medical malpractice during the delivery process resulting in neurological damage, seizures, loss of motor function, and cognitive limitations.

A new study points to a disturbing trend in emergency rooms.  The study shows that emergency room doctors are underestimating the possibility of serious bacterial infections in children presenting themselves with fevers.

The authors of the study concluded, ""Emergency department physicians tend to underestimate the likelihood of serious bacterial infection in young children with fever, leading to under-treatment with antibiotics. A clinical diagnostic model could improve decision making by increasing sensitivity for detecting serious bacterial infection, thereby improving early treatment."

For example, the study found that urinary tract infections, pneumonia, and bacteremia occur in approximately 7% of children who present with a fever.  However, only 70-80% of those children are prescribed with the proper antibiotics with 20% who do not have any signs of bacterial infection are over treated with antibiotics.

The study also noted, "In most cases, the cause of a febrile illness is a self limiting, presumed viral, infection, but 5-10% of febrile children have serious bacterial infections such as pneumonia, urinary tract infection, meningitis,, bacteremia,or bone or joint infection (which usually present with fever).).  These conditions can be difficult to distinguish from viral infections and benefit from early antibiotic therapy. The consequences of a delayed or missed diagnosis can be serious and, occasionally, fatal."

The study was published by BMJ (British Medical Journal).

It seems like this should be common sense.  There is a direct correlation between the number of medical malpractice cases and the quality and safety of medical care.  Those in favor of reducing doctors' liability rather than increasing patient safety don't usually like to talk about this.  However the RAND Corporation has released a study of California hospitals from 2001 to 2005.  The study concluded, "Reducing the number of preventable patient injuries was associated with a corresponding drop in malpractice claims against physicians."

"These findings suggest that putting a greater focus on improving safety performance in health care settings could benefit medical providers as well as patients," said Michael Greenberg the study's lead author and a behavioral scientist with RAND, a nonprofit research organization.

The mother of an 8 year old girl will receive $1.8 million from Community Health Care Inc. clinic in Greenfield, Mass., after one of the clinic's patients caused a fatal car accident.  Stephen Fairchild, 24, of Putney Vermont was a clinic patient being treated for heroin addiction when his vehicle veered into oncoming traffic colliding with a truck driven by Erin Lackey.  Erin's 8 year old daughter Kayla and Fairchild were both killed in the crash.  Autopsy reports showed that Fairchild's methadone level was "peaking" at the time of the 2005 auto crash. 

Kayla Lackey's family sued the Community Health Care clinic citing the clinic for failure to adequately monitor Fairchild after giving him methadone bottles to take home with him, a violation of clinic policy.  The suit noted other warning signs in Fairchild's behavior such as a failure to keep counseling appointments and burns on his clothing and skin, a dangerous sign of drug abuse.  Fairchild had a long history of drug abuse and traffic violations.  Autopsy results showed that Fairchild has used cocaine and marijuana recently prior to the crash. 

The methadone clinic lawsuit focused on the role the clinic and Fairchild's personal physician, Dr. Walter Slowinski, had in treating Stephen Fairchild.   

Mentor ObTape vaginal sling lawsuits will proceed in California after a California Superior Court judge ruled in favor of the four women suing Bayer, the manufacturer of the vaginal slings.  According to the lawsuits, the women allege that the vaginal slings slow tissue integration causing painful side effects including vaginal extrusions, urinary tract erosions, and infections.  The vaginal slings were designed to treat female urinary incontinence and have been used by thousands of women between 2003 and 2006. 

A 2009 study found that 1 in 5 women using the sling would suffer from complications.  The lawsuits claim that Mentor knew about the high rate of complications in 2003 but declined to advise prospective patients of the potential complications.  Many women who experienced these complications were forced to endure further surgeries to remove the tape. 

Sales of the tape ended in 2006.  The product was never recalled from the marketplace.  Presently, ObTape lawsuits have been consolidated into a multidistrict litigation in U.S. District Court for the Middle District of Georgia.  Trials are scheduled to begin in June 2010.

The 7th Annual "Patient Safety in American Hospital Study" has been published and is available online at http://www.healthgrades.com  The study identifies patient safety incidence rates among Medicare patients in almost all of the country's 5,000 non-federal hospitals.  The findings should prove helpful for healthcare institutions that are concerned about tranparency, accountability, and patient safety.

The study analyzed data from 2006-2008 and found that there were nearly 100,000 patient deaths attributable to safety lapses and medical errors.  The costs associated with these medical errors were an astounding $8.9 billion.  The study found that nearly 10% of Medicare patients died from safety errors.  The highest incidence rates concerning safety errors included the following:  failure to rescue (92.71), decubitus ulcer (36.05), post-operative respiratory failure (17.52), and post-operative sepsis (16.53).

Of the 8 New Hampshire hospitals that were eligible to receive a Patient Safety Excellence Award, none were recognized for the award. New Hampshire hospitals received an overall grade of average in "Patient Safety Observed-to-Expected Incidence Rate" analysis.  The areas in which New Hampshire was rated "worst" included death in low mortatlity DRG's (diagnosis related groups), latrogenic pneumothorax, and selected infections due to medical care.  The only area in which NH ranked as one of the best concerned rankings for incidents related to decubitus ulcer.

The study concluded, "Avoiding mistakes by chance is no longer acceptable. When patients enter the health care system, they entrust their health and their lives to their caregivers. The health care system must continue to put systematic safe practices in place to ensure that the system created to save them doesn’t unintentionally harm them.

If all U.S. hospitals had performed at the same level as the Patient Safety Excellence Award
hospitals, the U.S. health care system could have saved nearly $2.1 billion and potentially prevented 22,590 deaths in just three years among Medicare cases alone."

The state's highest court overturned the statutory $500,000 cap on non-economic damages which are defined as intangible, including pain and suffering, loss of consortium, disability, and disfigurement.  In its decision to overturn the statute, the Supreme Court ruled that the law violated the separation of powers clause found in the state constitution.  In its ruling, the Court noted that the law "unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law.”

Shortly after the law was enacted in 2005, the case Lebron v. Gotlieb Memorial Hospital challenged the statute's constitutionality.  The case involved a baby born via Cesarean section. The child was born with numerous permanent injuries including brain damage and cerebral palsy.  The case far exceeded the $500,000 cap on non-economic damages.

Last week, the US Senate Finance Committee investigated the diabetes drug Avandia and its safety issues as it is associated with an increased risk of heart attacks.  This week, the powerful committee has focused on long term care hospitals and their allegedly substandard medical care.  The issue was the subject of an article in the NY Times today.  The Times headline read, "Senate Panel to Investigate Deaths at Long-Term Care Facilities".

The Senate committee has focused its investigation on one particular long-term care company which runs 89 such facilities across the country.  On Monday of this week, two members of the committee sent Select Medical Corporation a letter demanding answers concerning staffing levels and quality of medical care at its facilities.  An earlier NY Times article focused attention on these hospitals that treat 200,000 seriously ill patients each year.  According to the Times, the facilities rarely have full-time physicians on staff.  The Times cited one example of a dying patient whose heart monitor beeped for 77 minutes before a nurse responded.

According to today's Times' article, "The letter also requests that Select disclose information about its discharge policies. Former employees have also said that the company presses to keep patients for 25 days and then discharge them almost immediately, because patients are most profitable if they stay exactly 25 days under government reimbursement rules. At some Select hospitals, the 25th day is called the “magic day,” ex-employees say."

This is a particularly stark example of healthcare gone wrong in this country.  It's an example, if the allegations are true, of healthcare companies placing profits over patients. 

Dr. Peter Pronovost, a Johns Hopkins anesthesiologist, is waging a war on what he calls "the secrecy, shame and lack of communication within health care".  According to Pronovost, the war must be waged to protect patients from unsafe hospital practices that lead to dangerous medical errors.  Pronovost has already designed a checklist to reduce catheter-related infections in ICU's.  

Now, he's published a book entitled, "Safe Patients, Smart Hospitals: How One Doctor's Checklist Can Help Us Change Health Care from the Inside Out."  Pronovost's two-pronged approach involves creating safe practice checklists as well creating hospital cultures in which nurses and other healthcare workers are unafraid to challenge doctors who are making errors.

Dr. Pronovost decided to act after witnessing a toddler, 18 month old Josie King, who had been brought to Johns Hopkins Hospital for burn treatment.  Josie died from substandard care resulting from a medical error. 

In the book, Pronovost writes, doctors "think they are infallible, communication between nurses and doctors is poor and accountability is virtually non-existent. . . Medicine operates like a private club of self-styled deities where the entrance requirement is an M.D."

In her February 16, 2010 book review of Dr. Pronovost's work, Wall St. Journal writer Laura Landro mentions two scenes  which Dr. Pronovost cites as examples of this egregious behavior.

"In the course of advancing his argument, Dr. Pronovost offers glimpses into the harrowing world of intensive care, such as a patient accidentally left to overdose on narcotics—saved, ironically, because he was a heroin addict and could tolerate the excess of drugs. In one heart-stopping scene, Dr. Pronovost faces off with a surgeon who refuses to admit that the patient on the operating table is having a deadly allergic reaction to the latex gloves that the surgeon is wearing."

I salute this young doctor's courage and willingness to stand up for patient safety.  Medical errors and patient safety are intimately related to the institutional culture as well as a profession's willingness to change and adopt safe practices of medicine.

A new report published yesterday has quantified the effect of hospital infections and the numbers are not pretty.  In 2006, 48,000 lives were lost due to infections acquired in hospitals.  The financial cost of such infections were estimated to be $8.1 billion.  These numbers are likely to rise and have a profound impact on the cost of healthcare in the United States.

"In many cases, these conditions could have been avoided with better infection control in hospitals," said Ramanan Laxminarayan of Resources for the Future, a think tank that sponsored the study.

The study showed that infections acquired during hospital stays are a growing concern and a huge issue in controlling healthcare costs.  The researchers found that a lapse in infection control can lead to prolonged hospital stays, serious complications, and death. 

A few weeks ago, the medical malpractice attorneys at our firm dedicated an entire week to blogging about the 5 most common myths associated with medical malpractice cases.  In each instance, our bloggers cited independent evidence based on research and statistics that tort reform or medical malpractice reform will not make a substantive contribution to the improvement of our healthcare system.  In fact, one insurance study noted that such emphasis on curbing medical malpractice cases served only to restrict consumers' access to justice in a court of law. 

Now, there are renewed rumblings in Washington that President Obama may be willing to consider tort reform measures in order to obtain Republican support of other aspects of his legislation.  The rumors gathered steam after Republican Senator Judd Greeg (R-NH) appeared on Hardball with Chris Matthews and discussed the possibility. 

As an attorney who has represented victims of medical malpractice for years now, I know that such reform measures only hurt those who need consumer protection the most.  Rather than satisfying the pork barrel interests of large insurance companies, we should be focusing on measures that actually improve the quality of healthcare for all Americans.  This includes the implementation of new safety measures and accountability that empowers consumers with knowledge so that they are able to make informed choices regarding their healthcare.

Patient advocacy groups have formed a coalition to launch a new website designed to highlight the relationship between medical errors and physician fatigue.  www.WakeUpdoctor.org is the site that will gather information and the stories of patients who've been harmed by medical error associated with physician fatigue and overwork.  The effort will concentrate on reducing the number of hours worked by interns and residents in order to improve patient safety and reduce medical errors. 

"Few, if any, people would fly on a plane whose pilot had been awake and working for 25 to 30 hours. In fact, that long a shift is prohibited," said Dr. Sidney Wolfe, director of Public Citizen's Health Research Group. "But patients routinely get medical care from resident physicians who have been working that long. They become fatigued, making them more susceptible to making errors that greatly harm patients. It is likely that there are more deaths in U.S. hospitals each year caused by sleep-deprived doctors than the total annual deaths from plane crashes and train accidents."

Since the link between medical errors and physician sleep deprivation has grown over the years, the new effort is a common sense approach to reducing errors and improving patient safety.  This is a step in the right direction.

 

In a 4-2 vote, the Illinois Supreme Court has overturned a five year state law capping damages in medical malpractice lawsuits.  The Court found that the law was unconstitutional because it limited the compensation injured victims could receive for pain, suffering, and other non-economic damages.  The majority opinion concluded that the law violated the state Constitution's separation of powers clause by imposing decisions that are properly reserved for juries and judges.

The decision was a major victory for consumers and injured victims of medical malpractice.  Approximately 30 states have laws that limit non-economic damages.  11 states have overturned such laws.

The Court's ruling came in the case of Abigaile Lebron, who suffered severe mental impairment after a botched Caesarean section four years ago.

Last Sunday, the NY Times ran a front page story about the dangers of radiation overexposure.  The article highlighted the tragedy of Scott Jerome-Parks who died as a result of a radiation error.  Ironically, Jerome-Parks contracted tongue cancer from volunteering in the 9/11 cleanup.  On the morning of September 11, 2001, Scott missed his train that would have taken him to work at the World Trade Center.  His sense of responsibility and commitment to the 9/11 victims compelled him to volunteer in clearing away the rubble.  Exposure to the toxic dust from the collapsed towers led at least one doctor to believe that may have caused the tongue cancer.

In 2005, Jerome-Parks was receiving radiation treatments for the tongue cancer.  According to the NY Times article, malfunctioning computer software for a new linear accelerator caused three radiation treatments to be 7 times more powerful and radiate a much broader area than the tongue cancer required.  The radiation error caused tremendous pain, loss of hearing, an inability to swallow, and finally an inability to breathe.  The excess radiation caused fatal damage to the nearby organs and led to his painful death in 2007.

As Scott Jerome-Parks was dying, he had a single request.  He wanted his tragedy and the medical errors associated with it to become public so that others would not suffer a similar fate.

“If one life is saved from this, then Scott’s death won’t be in vain,” said his mother. “We hope people will become advocates of their own treatment. Ask the radiology staffs to check the settings, not once but twice.”  As painful as it was for his parents to tell Scott's story to the NY Times, they could  do it because it was his wish.  He didn't want others to suffer from a lack of knowledge.
“With the Times' report, we are in some ways dealing with Scott’s death all over again,” said Donna Parks. “But this time we feel better because some good is coming out of it. People will be more aware that radiation accidents can happen.”

We're continuing to discuss the 5 Myths of Medical Malpractice today.  This one happens to be my favorite because it's so outrageous and a number of people believe it.  The second myth is "Medical malpractice claims drive up healthcare costs."  According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence in 2007 was $7.1 billion—just 0.3% of health care costs.  Now, remember this figure is from the insurance industry.  The second argument is an indirect one.  Those who promote this myth argue that medical malpractice claims drive up insurance by forcing doctors to practice defensive medicine.  However, the facts don't support this claim.  According to the AAJ study, "Most claims of “defensive medicine” are derived from a 1996 study that has repeatedly been debunked by government agencies and academic researchers. The study, conducted by Daniel Kessler and Mark McClellan, examined data on the costs of treating cardiac patients covered by Medicare in 1984, 1987, and 1990. The authors took this small subset of data and extrapolated the findings to the entire health care system to conclude that tort reform could reduce medical costs by five to nine percent because doctors no longer felt the need to run tests because of liability concerns."  If defensive medicine exists at all, its sole purpose is to generate income not avoid a liability claim.

In an editorial that accompanied the release of a new study on prescription pain pill overdoses, Thomas McLellean, the deputy director of White House Office of National Drug Control Policy, noted that doctors should re-examine how they manage pain in their patients.

"It is easy to blame the growing epidemic of opioid overdose and death on manipulative patients who misrepresent pain symptoms to obtain drugs to abuse or sell," McLellan wrote, saying the study identifies a "potential role for physicians" in the epidemic.

"Smarter, more responsible practices are the only hope to avoid tragic, avoidable deaths."

The editorial served as a buttress to the study published in the current Annals of Internal Medicine, which studied 10,000 Group Health patients with prescriptions for pain medicine for such ailments as arthritis and back pain.  The research suggests that patients with higher opioid doses were 9 times more likely to overdose than those patients with loser doses.

Dr. Michael Von Korff, senior investigator for the Group Health study noted that for every fatal overdose there were seven non fatal poisonings that were considered medically serious.  Doctors are prescribing more pain pills at higher doses than ever before.  In the United States, deaths from prescription pain pill overdose tripled from 1999 to 2006.  In Washington state, pill overdose deaths now eclipse car accidents as the primary cause of accidental death.

In his editorial, the deputy drug czar concluded, "It is easy to blame the growing epidemic of opioid overdose and death on manipulative patients who misrepresent pain symptoms to obtain drugs to abuse or sell," McLellan wrote, saying the study identifies a "potential role for physicians" in the epidemic.

"Smarter, more responsible practices are the only hope to avoid tragic, avoidable deaths."

It's taken some time, but New Hampshire will require hospitals to report medical errors and avoidable mistakes to the public.  The logistics of such a reporting system have yet to be determined.  However, the good news remains that New Hampshire will finally join other states in publicizing medical errors.  While the Institute of Medicine has continued to state that hospital errors are a leading cause of death in the United States, New Hampshire has dragged its feet in implementing a policy of transparency and openness to the issue of medical malpractice and errors that lead to severe and permanent injuries, including death. 

According to a WMUR report, the state could begin publicizing such medical errors within six months.  Medical errors and medical malpractice cost the lives of 200,000 Americans.  Comparing this to the death toll in Vietnam (58,000), the number is staggering.

There was a provocative article posted on www.injuryboard.com about the potential costs of medical practice cases.  A hospital in Florida is charging a medical malpractice victim $1,000,000 to retrieve medical records concerning the doctor who botched his back surgery.  While on the surface that may seem like a Florida problem, it's really a systemic problem concerning medical records and transparency.  Any adverse event or surgical complication should be a matter of public record, yet it is not in most states, including New Hampshire.  For those who've suffered medical malpractice or surgical errors, retrieving medical records of what actually transpired during treatment or surgery may be difficult or impossible to obtain due to existing legislation.

When a victim of alleged medical malpractice comes into our office, there's an extremely high threshold that that person must overcome to convince us to take their case.  This is not because we don't believe the victim.  However, the law, public opinion, and prospective jury pools are skeptical when it comes to medical malpractice cases.  Our reputation as a respected medical malpractice law firm hinges on the fact that we only accept what we consider meritorious cases.  

We've been representing victims of medical malpractice for three decades now.  We are only interested in the pursuit of justice and increasing the quality of patient care.

It didn't receive much notice in the press but the US Senate gave consumers an important Christmas present when they voted no on a measure that would have capped fees in medical malpractice cases.  HB 3590 was soundly defeated 66-32 because Senators determined the so-called "tort reform" arguments weren't accurate.  For years, these groups have argued that healthcare reform begins by stopping medical malpractice lawsuits.  They reasoned that the best way to stop the lawsuits was to put caps on lawyers' fees.  Yet, in states where there are caps on such cases, healthcare costs have continued to skyrocket and insurance premiums have continued to rise at an unprecedented pace.

In voting down this bad bill, US Senators stood up for victims of medical malpractice.  Even the poorest victims of medical malpractice will be able to receive medical treatment and pursue justice in the courtroom.  Medical malpractice attorneys will continue to represent victims and fight for their rights in court. 

Real healthcare reform begins with accountability, transparency, and a concerted effort to improve patient safety.  The US Senate recognized this and did the right thing.  Let's hope this is a trend that will continue to bring improvement to our healthcare system.

The Food and Drug Administration has announced that it will begin to study the effects of prescription drugs on pregnant women, a population that is usually not considered in clinical drug trials.

The Medication Exposure in Pregnancy Risk Evaluation Program (MEPREP) will be a collaborative effort between the HMO Research Network's Center for Education and Research in Therapeutics.  The groups will gather and study data from 11 health plan-affiliated research sites.  Together, the sites may access data from 1,000,000 births from 2001 to 2007.


"Many of the mothers associated with these births likely used medication during their pregnancies and now, with the program in place, the FDA and participating researchers have a systematic and timely way of retrieving information from this network," the agency said in a news release.  

Since a majority of pregnant women takes prescription drugs, the study hopes to provide the necessary medical knowledge to increase the safety and health of both the mother and the child.

A new study has shown that up to 20% of kidney dialysis patients who undergo procedures to open a clogged artery are given the wrong drugs, significantly increasing the chances of increased bleeding.  The study notes that many doctors disregard or ignore drug warning labels which puts the patient at significant risk for injury. 

"The results of this study illustrate the problem of medication errors in the United States, as well as the need to make patient safety a priority on the health care agenda," Dr. Thomas Tsai of the Denver Veterans Affairs Medical Center and colleagues wrote in the Journal of the American Medical Association.

Errors such as these cause more than 100,000 preventable deaths each year as well as medical malpractice lawsuits. 

Certain blood thinners are not recommended for kidney dialysis patients.  Drugs such as Lovenox, also known as enoxaparin, made by Sanofi-Aventis SA's and Merck Schering-Plough's Integrilin, also known as eptifibatide, are not recommended for kidney patients because they are cleared through the kidneys.  In spite of this, more than 20% of dialysis patients received one or the other blood thinner in the recently published study. 

"This study therefore demonstrates that these medications are used in clinical practice despite (U.S. Food and Drug Administration) FDA-directed labeling, and their use is associated with adverse patient outcomes," the team wrote.

The Leapfrog Group, a patient safety and quality advocacy group, has released its determination of the best hospitals in the country.  The list includes urban hospitals, rural hospitals and pediatric hospitals.  Leapfrog listed 45 healthcare institutions committed to patient safety and quality of care.  Among those hospitals listed in the rural category, two Maine hospitals were cited-Stephens Memorial Hospital in Norway and Waldo County General Hospital in Belfast Maine.  Children's Hospital in Boston was listed as one of the best in the pediatric category.

The Leapfrog Group survey of hospitals is the only national, public comparison of hospitals on key issues such as mortality rates, rates of infection, safety practices and measures of efficiency.  The Leapfrog survey has received independent recognition for its work and advocacy of patient safety and quality of care.  In a 2008 study performed by Harvard Medical School's Dr. Ashish Jha and published in the Journal of the Joint Commission, Leapfrog hospitals had lower mortality rates and better quality of care than those hospitals not participating in the Leapfrog survey.

In order for an urban hospital to be listed as one of the best by Leapfrog, it must meet the following criteria:

  1)Fully meet Leapfrog standards for implementing computer physician order entry (CPOE) systems (that have been shown to reduce medication errors by up to 85%), and for passing Leapfrog's test of their system;

  2)Fully meet stringent performance standards for complex, high-risk procedures (such as heart bypass surgery) done in that particular hospital;  

  3)Fully meet standards for staffing the ICU, shown to reduce mortality by 40% or more;   

  4)Score in the top decile in the country for efficiency - scored by the Leapfrog Hospital Recognition Program incorporating quality outcomes, length of stay, readmission rates, and incidence of hospital acquired conditions and infections. The efficiency standard applies to heart bypass surgery, heart angioplasty, heart attack and pneumonia patients.

As the US House of Representatives prepared to vote on their health reform bill early last month, Rep. Bruce Braley, an Iowa Democrat, took the floor to advocate for patient safety.  As he began his floor speech, Rep. Braley was shouted down by some members of the House.  He was derided as a "trial lawyer" as he spoke about the dire need to focus on patient safety.

Braley, seen by many of his House colleagues as the leader in patient safety advocacy, remained undeterred by the catcalls.  "Who will speak for the patients?" Braley said in his House speech. Referring to an Institute of Medicine report, Braley said "They told us the most significant way to reduce the cost of medical malpractice is to emphasize patient safety by reducing the number of preventable medical errors."

200,000 Americans die each year from preventable medical errors.  Yet, the issue of patient safety has received scant attention in the debate over healthcare reform.  Perhaps, Rep. Braley will lead this important fight.

"When my colleagues chose to attack me by screaming 'trial lawyer, trial lawyer' it wasn't affecting me in the least," Braley told advocates last week at the Consumers Union conference. "I was thinking of people that need someone to stand up for them when it comes to important issues of patient safety."

Taunting and name-calling doesn't serve the interests of the American people who need real reform.  As the US Senate debates various healthcare reform measures this month, let's hope that the focus of the debate centers on the issues not on personal attacks.

In spite of the groundbreaking Institute of Medicine report entitled "To Err is Human", patient safety and the rate of medical errors leading to medical malpractice hasn't improved significantly in the last ten years, that's according to two authors of the original study. One of the study's authors, Dr. Donald Berwick, president of the Institute of Healthcare Improvement, gives the state of medical safety a C-. 

While there may be more awareness of medical errors, there has been little significant progress in preventing or correcting these errors in the medical field.  A lack of mandatory medical error reporting across the United States is a factor in the lack of progress in patient safety.  If there is no baseline from which to gauge the problem of medical errors, it's difficult to track progress.  Another factor in the lack of safety progress concerns the medical profession's hesitancy to embrace technological innovations such as electronic medical records which studies have shown, can reduce medical errors significantly.

New Hampshire medical malpractice cases that we've handled over the years often involve devastating injuries and death.  These medical injuries and deaths were the result of medical malpractice on the part of a healthcare professional.  Those who've suffered because of medical negligence are victims and deserve to pursue their legal rights. 

Two weeks ago, a group of medical malpractice victims traveled to Washington to remind Congress of their suffering as well as their legal right to court access.  These courageous people went to Washington DC in order that the protection of patient rights be part of any meaningful healthcare reform. In a press release issued on October 21, 2009, Center for Justice and Democracy, Executive Director Joanne Doroshow wrote:

"We must not solve the nation's health care problems on the backs of injured patients and their loved ones. We hope Members of Congress will join Chairman Conyers and Representative Braley and reflect on the tragic stories of these American families who traveled great distances in rejecting any limits on their legal rights." 

Congressman Bruce Braley (D-IA) has vowed to introduce legislation that would improve patient safety by making the reporting of medical errors mandatory.  Rep. Braley made the announcement during a news conference in which he was flanked by victims of medical malpractice. 

The 1999 Institute of Medicine's study To Err is Human, noted that medical errors cost the American taxpayer $17-29 billion annually and take lives of 98,000 Americans each year.

Rep. Braley is focusing his efforts on patient safety and has stated his opposition to caps on medical malpractice damages because they interfere with patients' rights. During his news conference, Braley stated that it's  "important to give another side of the story and talk about the real human cost of medical errors."

Braley has said that he'd like to introduce medical error reporting legislation separate from the impending healthcare reform bill so that medical error reporting receives proper focus and attention.

Ortho Evra has been touted as a safe, easy-to-use birth control patch that is more convenient than oral contraceptives.  Since its introduction in 2002, its maker Johnson & Johnson aggressively marketed the birth control patch.  What wasn't revealed at that time was Ortho Evra exposes users to 60% more estrogen than the average oral contraceptive.  This high dose of estrogen can lead to blood clots and strokes.  In 2005, the FDA issued a warning about the potential dangers of the birth control patch.

Now, a 17 year old Boston girl has died and her relatives are blaming the birth control patch for her untimely death.  The Boston Globe reported that the teenager died from a pulmonary emboli on September 28.  Adrianna Niedner was just starting her freshman year at Trinity College when she suddenly collapsed in her dorm room.  Her mother has sued Johnson & Johnson, the maker of Ortho Evra and wants the product removed from the market. 

According to the health advocacy group Public Citizen, 2 million women still use the birth control patch even though Ortho Evra side effects have been well publicized since late 2005.

Medical errors that lead to death are far less likely in our country's best hospitals, according to a report released today by the medical ratings company Health Grades.  According to the study, patients have a 51.53% lower risk of dying in our nation's top rated hospital in comparison to the general US hospital. 

This is an astounding figure.  The discrepancy in the quality of care received in our nation's hospitals is appalling.  As Congress debates healthcare reform legislation, it's unfortunate that such issues are not at the forefront of the healthcare debate. 

According to Rick May, one of the authors of the study, this information should be part of the ongoing debate. 

"The fact is, patients are twice as likely to die at low-rated hospitals than at highly rated hospitals for the same diagnoses and procedures. With Washington focused on rewarding high-quality hospitals and empowering patients to make more informed health care choices, this information comes at a turning point in the health care debate."

Other findings in the 12th annual "HealthGrades Hospital Quality in America Study":

 

• If all hospitals performed at the level of a five-star rated hospital across 17 procedures and diagnoses studied for mortality rates, 224,537 lives of Medicare patients could potentially have been saved from 2006 through 2008.
• About 57 percent (127,488) of the potentially preventable hospital deaths were associated with four diagnoses: sepsis (44,622); pneumonia (29,251); heart failure (26,374) and respiratory failure (27,241).
• Across all procedures studied, there was a 61.22 percent lower chance of experiencing one or more in-hospital complications in a five-star rated hospital compared to the U.S. hospital average.
• Hospitals that have received the stroke certification from the Joint Commission on Accreditation of Healthcare Organizations have an 8 percent lower risk-adjusted mortality rate than hospitals that have not received this certification.

SSRI (selective serotonin reuptake inhibitor) antidepressants, including the popular Prozac, have been linked to premature births in pregnant women who've taken the drugs, according to a new study.  

The study appeared in a journal called Archives of Pediatrics & Adolescent Medicine, published by the American Medical Association.  The research studied 329 pregnant women who were taking SSRIs during pregnancy.  The study found that women taking the antidepressants were twice as likely to give birth prematurely.  The findings also showed that these  women were at a higher risk of giving birth to babies who needed some form of treatment in intensive care shortly after birth.

When prescribing SSRIs to treat depression in pregnant women, doctors are advised that the benefits to such treatment must outweigh the potential risks to the unborn child.  While it is not clear if there are any long-term effects of SSRI drugs on the newborn, the study shows that the drug enters the fetus' bloodstream and that some babies experience withdrawal symptoms soon after childbirth.

The study does not discuss the risks of untreated depression in pregnant women, which can also affect the baby's growth and development.

A new Danish study has linked a specific type of birth defect in cases where pregnant mothers were taking antidepressants.  The Danish study, reported by WebMD, found that women who take more than one selective serotonin reuptake inhibitor (SSRI) or switch SSRIs during the first trimester of pregnancy are more than 4 times as likely to give birth to babies with septal heart defects.  Popular SSRIs include Prozac, Paxil, Zoloft, Celexa, and Lexapro. 

In 2005, the FDA sent a letter to physicians regarding a potential link between Paxil and birth defects but did not mention any of the other antidepressant drugs.

Medical errors that can lead to medical malpractice lawsuits can be caused in part by physician fatigue and stress, according to a new report in the Journal of the American Medical Association.  While this may seem like an obvious conclusion to most of us, healthcare officials have been slow to act in relieving the human factors that lead to medical errors.

“While fatigue is important, said study lead, Dr. Colin West of the Mayo Clinic in Rochester, Minnesota, “there is this whole domain of distress beyond fatigue that also demands attention,” quoted Reuters. The findings are hoped to better enable ways to reduce stress on residents, which is hoped to reduce errors, said Reuters. “I think this is going to have an impact on health care reform,” West said. “We need (to put) resources into training and medicine to control work hours and maintain physician well-being,” he added, said Reuters.

The investigative journalism website, Dead by Mistake, estimates that 200,000 Americans die from preventable medical errors.  It seems reasonable that a percentage of these deaths is attributable to physician fatigue or stress.  As Dr. West stated, this needs to be part of the healthcare reform discussion.

Medical Malpractice.  The two words have taken on such a pejorative connotation in our society that politicians regularly take aim at them.  The words remain the favorite culprit of insurance companies when they have to explain the rise in premiums to doctors, elected officials, and the average consumer.  Yet, reputable studies in states like Texas have shown that it's really a red herring to which many insurance companies will turn when company executives have to justify an increase in insurance premiums.

The real losers in this faux debate are those who've suffered and lost loved ones as a result of medical errors and medical malpractice.  These are the ones who rely on the civil justice system.  If we're going to debate healthcare, let's do it with facts.  Let's avoid the hyperbole and politically charged arguments that serve the few at the expense of the multitudes who deserve better.

Cerebral palsy, like Erb's palsy, may occur as a result of medical malpractice during the birthing process.  Medical errors and mistakes during delivery of a child may lead to this condition. 

Cerebral palsy is a term used to describe a variety of medical conditions affecting a newborn's or child's muscle coordination and bodily movements.  The condition is caused by damage to the area of the brain associated with muscle function and coordination.  It is a permanent condition that usually occurs during birth, shortly after birth, or infancy. 

When cerebral palsy occurs as a result of medical malpractice during the birthing process, it is usually a result of one or more of the following errors:

• a child left in the birth canal for an extended period of time leading to a lack of oxygen to the brain
• misdiagnosis of infant seizures and failure to treat them in a timely fashion
• failure to detect a prolapsed cord during which the baby is deprived of oxygen because the umbilical cord has wrapped around the baby's neck
• failure to recognize and treat jaundice and meningitis
• failure to recognize fetal distress and respond promptly to relieve that distress.

These are just a few of the potential causes of cerebral palsy during the delivery that can lead to permanent brain damage in a newborn.

Injury to the largest part of the brain (cerebrum) can lead to the loss of nerve functions in different areas. Many children with this condition have increased muscle tone (spasticity). Spasticity may affect:

Presently, there is no cure for cerebral palsy. The goal of treatment is to help the person be as independent as possible.

Treatment requires a team approach, including:

• A primary care doctor
• A social worker
• Nurses
• Occupational, physical, and speech therapists
• Other specialists

It's a preventable birth injury that is often caused by the medical malpractice of a doctor who either pushes or pulls a baby out of the birth canal.  Such excessive force can cause permanent but preventable injury.

Erb's Palsy (aka brachial plexus palsy) is a medical condition that is normally precipitated by the birthing process.  The severity of the condition ranges from return to normal range of arm motion to physical therapy or surgery.

Erb's Palsy normally occurs during the birthing process as a result of shoulder dystocia where the baby's shoulder becomes stuck against the mother's pelvis.  The injury usually occurs when the healthcare professional exerts excessive force thus straining the brachial plexus nerves.  The brachial plexus nerves run from the spinal cord to the arm and control arm movement and flexibility. 

Proper pre-natal care can make birth defects such as Erb's Palsy avoidable.  Risk factors for Erb's Palsy include:

• Obese mother
• Above-normal weight gain during pregnancy
• Advanced age of mother
• Short or small mother
• Flat, contracted or exceptionally small pelvis
• Diabetes in the mother
• Large baby
• Overdue baby
• Prolonged labor
• Breech position

If any of these risk factors are present during pregnancy, a planned C-section may be determined to be the proper course of action in order to prevent Erb's Palsy. 

Diane Stewart, 70, finally decided to have the knee replacement surgery her family and friends had urged her to have for years.  She had suffered from severe arthritis since a car accident 40 years ago had crushed her knees.  Now, unable to walk, she gave in to her family's demands to have the surgery.  Her family had made sure that the surgery would be performed at a hospital that enjoyed a very good reputation- Stanford University Medical Center in Palo Alto.  The knee replacement surgery was performed by Stanford University Professor Dr. Stuart Goodman.  As she prepared for surgery on March 30, 2007, she seemed in capable hands. 

After the surgery, she began to complain of excruciating pain in her abdomen.  Her family asked to speak with her doctor, but it was the weekend and her doctor was unavailable. By the time a doctor examined her, it was too late.  She had gone into shock and was rushed into intensive care where she died due to a bowel obstruction. If the bowel obstruction had been detected when she began complaining of pain, her doctors could have resolved the issue by inserting a nasogastric tube to relieve pressure on the bowel or by surgery. If left untreated, the condition is very dangerous. The patient can develop peritonitis, go into septic shock, and die.  This is precisely what happened to Diane Stewart.

Her family has filed a medical malpractice lawsuit against the hospital as well as her surgeon.  As part of the investigation into Stewart's death, a nurse told an investigator from the Department of Health Services that she had called two doctors asking to insert a nasogastric tube but both denied her request.  She also told the investigator she asked one of the doctors to visit Stewart, but he declined to do so.  According to the lawsuit, Stewart showed further signs of a bowel obstruction.  She was experiencing decreased urine output, nausea, vomiting, elevated heart rate, and a sudden drop in blood pressure. On Monday morning, she was disoriented and breathing rapidly, and nurses could not find her pulse, records show. She was rushed to the emergency room.  She died due to a bowel obstruction, according to hospital records.

According to a story in the San Francisco Chronicle, state health investigators found that the hospital destroyed part of Stewart's medical records. "In 2008, investigators from the state Department of Public Health found that "relevant" portions of Diane Stewart's computer file had been deleted after her death and that a supervisor instructed a nurse to make postmortem "late entries" to describe her care. In a written statement, the hospital said that only temporary notes that were never intended to become part of Diane Stewart's permanent record had been discarded. Soon after that, her son (a physician) asked to review her medical records. Stanford officials resisted. Meanwhile, after her death, someone deleted some of her records from the hospital computer, the state health department later found. Then, a week after she died, nurses made a series of late entries to her file. The late entries described her condition in the hours before she went to the intensive-care unit. In a 2008 statement of deficiencies, the health department said Stanford Hospital had "failed to permanently record relevant information" about the patient, as required by state law. In the lawsuit, Stewart's family says that both the destruction of the records and the late entries to the file were part of an effort to cover up the negligence and mistakes that led to her death."

Diane Stewart's death is a tragedy.  According to her family, the death was a direct result of her physicians' failure to diagnose a bowel obstruction and treat it in a timely fashion.

The Senate Health, Education, Labor and Pensions Committee heard testimony last week from medical experts concerning the proposed Medical Device Safety Act of 2009. If the Act becomes law, it would restore many of the patient rights lost in the 2008 Supreme Court ruling in Riegel v. Medtronic. In an 8-1 ruling, the nation’s highest court exempted medical device manufacturers from civil lawsuits in state courts if the medical device in question had been previously approved by the FDA. The Supreme Court’s pre-emption ruling was a setback to those who’ve been injured by defective medical devices. One of the key supporters of the Medical Device Safety Act is Dr. William Maisel, director of the Medical Device Safety Institute and a cardiologist at Beth Israel Deaconess Medical Center in Boston. Dr. Maisel also chairs the FDA’s Circulatory Advisory Committee. In his testimony before the Senate committee, Maisel told the Senators that FDA approval of a medical device does not guarantee its safety. Furthermore, Maisel argued, the FDA is not capable of monitoring every medical device that is on the market. The legislation has received letters of support from AARP, the Center for Justice and Democracy, Consumer Federation of America, the Consumers Union, and the National Association of Consumer Advocates. It is endorsed by National Conference of State Legislatures, the New England Journal of Medicine, the American Bar Association, AARP, the Center for Justice & Democracy, Consumer Federation of America, Consumers Union, Homeowners Against Deficient Dwellings, National Association of Consumer Advocates, National Consumers League. OWL - The Voice of Midlife and Older Women, Progressive States Network, Public Citizen, and the National Research Center for Women & Families.

As of January 1, 2010, text messaging while driving will be illegal in New Hampshire. Governor John Lynch has signed legislation that will impose a $100 fine for drivers who are caught texting while driving on New Hampshire roads. Similar legislation was defeated last year. However, a Boston MBTA accident earlier this year may have influenced the NH legislators. In that accident, the subway driver was texting his girlfriend just prior to the subway crash. Fifteen states have banned or will ban texting while driving. Recent studies have concluded that the practice is as dangerous as drunken driving. A study issued last week noted that texting drivers are 23 times more likely to be involved in a car crash than those who are not so distracted. The legislation has some weak points. It exempted the act of placing a phone call and did not address the problem of talking on a cell phone while driving. Some states have instituted bans on any cell phone use that is not hands free.

It didn't last more than a day, and it's already over. The highly anticipated first Neurontin trial ended after an anonymous donor offered $50,000 to pay the educational expenses of the decedent's daughter. The donor offered to put the money in a trust for the 10-year-old daughter of suicide victim Susan Bulger. As the case was preparing to go to trial both sides acknowledged the difficulty of the case given the plaintiff's personal history and past suicide attempts. Yet, the maker of the epilepsy drug Neurontin had to face some issues as well, not the least of which involved marketing the drug for off label uses and downplaying the increased suicide risk. The trial presented risks for both sides, a common theme in all trials. This one ended on a compassionate note. Some have speculated that the anonymous donor was an attorney friend of Bulger's family lawyer Mark Lanier. In a sense, it doesn't matter. What matters is someone stepped forward to assist with the financial needs of a young girl who'd lost her mom. That's all that matters in this case.

Maryland's highest court has reversed a lower court and revived a jury verdict awarded to a family in a birth injury case. Peggy McQuitty and her son Dylan sued obstetrician Donald Spangler in Baltimore County Circuit Court for failing to inform her that an immediate Cesarean section was possible after an ultrasound revealed an abnormality in her uterus. Ten days later, Peggy McQuitty suffered a complete uterine abruption and an immediate C-section was performed. McQuitty's son Dylan was born with cerebral palsy. If a C-section had been performed upon receipt of the ultrasound, the result could have been a healthy baby. In ruling for the McQuitty's, the state's high court extended the legal doctrine of informed consent to the doctor's discussions of medical options with the patient. According to the Maryland Daily Record, "the $13 million award includes $3.5 million in compensation for pain and suffering, which is expected to be reduced significantly due to Maryland’s statutory cap on non-economic damages, resulting in a final award of about $10 million.

Statutes of limitations restrict the time period that a person can file a lawsuit.

The general statute of limitations for medical malpractice actions in New Hampshire is three years from the time the negligent event occurred or when it should have been reasonably discovered. However, there are exceptions to this rule such as in cases involving minors or in cases involving a federally funded medical provider. In all instances, it is imperative that you act promptly if you believe you're a victim of medical malpractice. Contact an experienced medical malpractice attorney in order to preserve your legal rights.