San Antonio Personal Injury Lawyer - Medical Malpractice

Texas Tort Reform: A Good National Model?

Beth Janicek — Mon, 16 Nov 2009 15:10:19 GMT

In 2003, the Texas Legislature passed medical liability reforms that capped non-economic damages for injured patients at $250,000, and brought the number of malpractice lawsuits down dramatically.

The conservative position on health care reform is that medical malpractice claims drive up health care costs and require doctors to practice “defensive medicine” which is costly and wasteful. They believe that medical malpractice lawsuits are a leading cause of rising health care costs. However, health economists and independent legal experts believe that malpractice liability costs are only a small fraction of the costs of the U.S. heath care system, and that medical errors are a huge cost to both the injured patients and the health care system as a whole.

Governor Rick Perry boasted that tort reform that capped injured patients damages was the answer to Texas’ problems. Contrary to his claim, McAllen, Texas is one of the most expensive health care markets in the country, with Medicare spending almost twice the national average per person. Harlingen and Corpus Christi also made the top ten list of expensive cities in the country to receive healthcare.

Caps do not prevent the numerous preventable medical malpractice injuries that occur in America. The caps on medical malpractice damages only limit that who are most seriously hurt by medical errors and does nothing to prevent “frivolous lawsuits”. Limiting damages did not reduce the medical costs in Texas and it won’t limit the costs on a national level either.

Originally posted at InjuryBoard by Beth Janicek

Hospital Fined for Wrong-Site Surgery

Beth Janicek — Fri, 06 Nov 2009 10:10:42 GMT

The Health Department has fined Rhode Island Hospital for $150,000, after a surgical team violated safety policies when it operated on the wrong finger of a patient. This October incident was the fifth-wrong site surgery at this hospital since January 2007. Health Director David R. Gifford said,

“This pattern of surgical errors is completely unacceptable and must be corrected to protect the safety of all patients at the hospital.”

The surgery team failed to properly mark the fingers and failed to follow the rules for “time out,” a pause before the surgery to verify the patient, procedure, and site. The report also said that the hospital was not even following the error-prevention protocol that was adopted statewide on July 1^st. The Health Department reprimanded the hospital, mandated observation of every surgery for a year, required full adoption of the statewide surgical protocol and required the installation of video and audio monitoring in every operating room. The hospital was also given a fine, which was only the second time the state has fined the hospital.

These medical errors should never occur, so five wrong-site surgeries since January 2007 is completely unacceptable. Every facility should have policies and procedure in place to prevent these types of errors from occurring. There should be retribution through the civil court system and through the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) for people and facilities that violate these procedures.

Originally posted at InjuryBoard by Beth Janicek

Medical Malpractice Insurers’ Profits Higher than 99% of All Fortune 500 Companies

Beth Janicek — Sat, 31 Oct 2009 17:58:31 GMT

The American Association for Justice (AAJ) recently released a statistic claiming that medical malpractice insurance companies’ average profits are higher than 99 percent of all Fortune 500 companies. AAJ points out that medical malpractice lawsuits only account for a small percentage of unnecessary costs. The bigger problem is medical errors and the profits of malpractice insurers.

The report released by the AAJ also states that the average profit of medical malpractice insurance companies is 35 time higher than the Fortune 500 average for the same time period, and that malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent. In addition, the report finds that malpractice insurers have publicly overestimated their losses and underestimated their profits in an attempt to suggest that insurance business and medical practices face a crisis that must be resolved by tort reform. This report released by the AAJ shows that insurance companies profit the most, and obviously need Tort Reform the least.

AAJ President Anthony Tarricone said,

Insurance companies are gouging doctors on their premiums to mislead lawmakers…And today, injured patients are often left with no avenue to pursue justice, while health care costs continue to skyrocket.”

Originally posted at InjuryBoard by Beth Janicek

Medical Errors

Beth Janicek — Wed, 12 Aug 2009 11:34:47 GMT

Ten years ago, "To Err is Human" the highly publicized federal report called for a mandatory nationwide reporting system for medical errors, which the AMA and the American Hospital Association strongly opposed. The groups believe that mandatory reporting would only drive medical errors underground.

“To Err is Human” also:

Encouraged states to require medical error reporting. Only 20 states plus the District of Colombia have done so, and there is evidence to suggest that even in those mandatory-reporting states, hospitals only report a tiny percentage of their mistakes.
Claimed that the public “has the right to be informed about unsafe conditions.” However, 45 states, plus the District of Columbia do not provide hospital-specific information, because they either don’t allow access or because they don’t collect the data.
Recommended the creation of a national patient safety center.
Urged hospitals to improve the level of safety within their walls.
Advocated a voluntary system for hospitals to report and learn from errors. Congress approved legislation for “patient safety organizations” to serve this role, but took four additional years to create rules to govern them. In addition, the new organizations have no meaningful oversight and further exclude the public.

While there have been some positive steps, they have been overshadowed by the continual rise in death toll. The Agency for Healthcare Research and Quality (AHRQ) reported in 2008 that preventable medical injuries are growing each year by 1 percent. The analysis showed that more people suffered accidental cuts and tears to their organs during surgery, more patients developed avoidable bloodstream infections from catheters, and one in seven Medicare patients experienced at least one adverse event during a hospital stay. Kathleen Sebelius, secretary of the Department of Health and Human Services said,

“Unfortunately, there hasn’t been a significant improvement in the level of medical errors, and what is getting worse is hospital-based infections that are preventable.”

To see a color coded map, depicting which states require the reporting of adverse events, and which states do not, click here.

Reporting medical errors can be beneficial in limiting the amount of adverse events, but if the legal system in the medical arena worked as it does for the rest of the business community the need for reporting would not be as large. People constantly overlook the fact that medical malpractice cases can help to reduce the amount of medical errors. However, lobbyists in the medical field are so strong that laws become lopsided in favor of the medical profession, ultimately harming the patients. Laws that favor the medical profession limit the investigation of infections received while at hospitals, as well as deny the patient the right to see the hospitals investigation about how they were injured. These are just a few simple adjustments that need to be made to allow the patient or their families discover if a medical error caused their injury or death.

Originally posted at InjuryBoard by Beth Janicek

Leading Cause of Accidental Death in America is Mistakes in Medical Care

Beth Janicek — Mon, 10 Aug 2009 17:40:10 GMT

There was an excellent article about medical mistakes on the front page of the San Antonio Express News this Sunday. The article states that the leading cause of accidental death in America is mistakes made in medical care. According to the Hearst report,

“The Texas discharge records showed there were at least 29 deaths at 15 San Antonio hospitals in 2007 resulting from low-risk procedures.”

In fact, experts estimate that 98,000 people die from preventable medical errors each year, which means that more Americans die each month of preventable medical injuries than died in the terrorist attacks of Sept. 11, 2001.

The official number one cause of accidental deaths in the United States is motor vehicle accidents, accounting for about 43,600 deaths. The next three causes, poisoning, firearms, and falls account for 90,000 deaths. These statistics show that if medical errors and infections were better tracked, they would easily be at the top of the list.

Ten years ago, “To Err is Human: Building Safer Health System,” a highly publicized federal report challenged the medical community to cut it in half within five years. Unfortunately, federal analysts believe the rate of medical error is actually increasing. The report outlined steps that the medical community, the federal government, and most states have failed to take. A national investigation by Hearst Newspapers found that states such as California that have regulations in place often ignore the rules without penalty.

The Texas law that required hospitals to report medical errors expired in 2007, and while lawmakers restored the reporting requirement, it has yet to be funded. A Hearst data analysis showed that in five states – Texas, New York, California, Washington, and Connecticut – only 20 percent of 1,434 hospitals surveyed are participating in two national safety campaigns begun in recent years. Also, a detailed safety analysis examined discharge records from 1,832 hospitals and medical facilities in four of those states (including Texas) and found major deficiencies in patient data that states collect from hospitals. Nevertheless, they still found a minimum of 16 percent of hospitals had at least one death from common procedures.

Originally posted at InjuryBoard by Beth Janicek

Medical Malpractice Payments Fall to All-time Low

Beth Janicek — Thu, 23 Jul 2009 10:23:00 GMT

The watchdog group Public Citizen has reported that medical malpractice payments continued to fall across the country last year and only account for a minuscule portion of health-care costs. According to data from the federal government’s national Practitioner Data Bank (NPDB), the number of payouts declined for the third straight year.

The cost of the malpractice liability system fell to less than 0.6% of the $2.1 trillion in total national health-care costs in 2006, and the cost of actual malpractice payments fell to less than 1/5^th of 1% of all health care costs.

Medical malpractice payments have fallen to an all-time low, while the cost of health care continues to rise. Public Citizen’s whole report can be found here.

This report does not actually mean that safety efforts have been successful. It states that:

“There is no evidence that medical errors have declined. Rather than pointing to safer medical care, the reduction almost certainly means that there are ever more malpractice victims not receiving compensation.”

In addition, Public Citizen doubts that national tort reform will have an impact on health care costs.

David Arkush, director of Public Citizen’s Congress Watch Division said,

“Any way you measure it, medical liability accounts for less than 1% of the country's health-care costs, and the vast majority of victims receive no compensation whatsoever.”

Originally posted at InjuryBoard by Beth Janicek

Jury Awards 10 million in Heparin Case

Beth Janicek — Sat, 04 Jul 2009 13:50:37 GMT

In Houston, Texas, a jury recently awarded 10 million in a medical malpractice case against Methodist Hospital and the doctors who treated John German. He sustained an amputation of his left leg above the knee, all the toes on his right foot and all of his fingers following heart surgery. The lawsuit claimed the hospital nurses failed to properly monitor him after he had been administered Heparin. He had a reaction commonly referred to as HIT, heparin-induced thrombocytopenia. The hospital claimed the nurses had not done anything wrong and had helped save Mr. German’s life. Apparently, the jury did not agree.

The jury award will help provide for the extensive medical care Mr German will have in the future.

As he stated,” It’s like closing a painful chapter in my life, even though I have to live every day like this.”

The hospital intends to appeal the case. Hopefully, the verdict will stand on appeal. I have blogged in the past about the devastating damages which result from HIT and the importance of the medical community to be vigilant in monitoring patients following heart procedures. This Texas jury has sent that message to the medical community.

Originally posted at InjuryBoard by Beth Janicek

Small Gifts Found to Influence Doctors

Beth Janicek — Tue, 26 May 2009 09:56:00 GMT

According to a study in The Archives of Internal Medicine, little promotional gifts such as pens or coffee mugs inscribed with a drug’s name can really make a difference in the doctor’s prescription patterns. The study reports that students from a medical school which allowed gifts had a more favorable attitude toward a certain drug than did students from a school that bans promotional gifts.

The researchers worked with 352 third- and fourth-year students at Penn, which bans gifts, samples, etc. from drug companies, and the University of Miami, which allows them. When researchers sought to influence the student unconsciously, they found that the fourth year students at Miami showed strong positive feelings for the drug.

The study emphasized the powerful effect of branding, including nonverbal logos. In the past I have blogged on this very issue. In fact, Massachusetts state officials have given the final approval to begin regulating this common trend. The regulations include banning gifts to physicians, limiting when companies can pay for doctors’ meals, and requiring companies to publicly disclose payments to doctors over $50 for certain types of consulting and speaking engagements. In addition, companies will have to disclose payments to doctors and hospitals for research designed to promote a particular products.

The study stated,

“Our findings are particularlynotable because they are attributable to simple exposure topromotional items independent of other effects attributableto the social relationships associated with gifts. Our studyalso suggests that institutional policies, by way of their influenceon student attitudes toward marketing, could lead to differentresponses to branded promotional items.”

Originally posted at InjuryBoard by Beth Janicek

Bill Would Allow Military Personnel to Sue for Medical Malpractice

Beth Janicek — Wed, 20 May 2009 11:10:18 GMT

Legislation that would enable military service members to sue the government for medical malpractice is moving closer to becoming law. The House Judiciary Subcommittee approved Carmelo Rodriguez Military Medical Accountability Act. The legal precedence barring negligence lawsuits for military service members goes back to a 1950 Supreme Court ruling known as the Feres Doctrine.

The Feres ruling came from the Federal Tort Claims Act of 1946, which waived the common law doctrine of sovereign immunity in certain circumstances to allow lawsuits against the government for negligent acts. The law was initially interpreted to forbid lawsuits by military personnel only for combat-related injuries. The Feres decision extended the law to include any lawsuits for injuries “incident to military service.”

Over the years cases applying the Feres Doctrine have include incidents such as leaving foreign objects inside patients, misdiagnosing, failure to notify patients about potentially deadly health problems, and failure to treat patients with easily treatable illnesses.

The Feres Doctrine has received criticism all across the board. Attempts to revoke the doctrine have surfaced periodically in Congress for over 20 years, but all have failed. In 1987, a 5-4 Supreme Court decision reaffirmed the Doctrine. The decision drew dissents from Justices John Paul Stevens and Antonin Scalia.

Scalia wrote that the Feres Doctrine “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

The latest attempt to amend the Feres Doctrine is H.R. 1478, the “Carmelo Rodriguez Military Medical Accountability Act of 2009”, introduced by U.S. Representative Maurice Hinchey (D-N.Y). The Act would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice but would contain an exception for combat-related injuries. It also requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury.

U.S. Rep. Hinchey said, “I think military personnel should be treated in normal ways. Their medical issues should be dealt with responsively and attentively, the way we anticipate and expect the medical problems of ordinary citizens should be dealt with. We see far too much negligence in military medical care.”

Jonathan Turley, a law professor at George Washington University, has been a leading critic of the Feres Doctrine for years.

He said, “We see cases in the military involving conduct that would be viewed as perfectly medieval in the civilian world. Decades ago civilian doctors were sued over the practice of leaving sponges in patients. It used to be very common.”

Now, he says, it is rare to see that type of malpractice in civilian medicine, due to the fear of lawsuits. But since there is no fear of a lawsuit in military medicine, it keeps occurring.

Turley said, “I consider the Feres Doctrine to be one of the most grotesque rules created in the history of this republic. It has done untold damage to thousands of military personnel and their families.”

Let’s hope for the sake of our military that the Carmelo Rodriguez Military Accountability Act of 2009 has a better outcome than other bills written to overturn the Feres Doctrine. Rep. Hinchey admits that this bill is going to face a tough fight, but as far as he is concerned it is simply a matter of fairness.

Originally posted at InjuryBoard by Beth Janicek

Two Die at Delaware Hospital After Taking Heparin

Beth Janicek — Fri, 15 May 2009 11:57:02 GMT

Medical care providers at a Delaware Hospital and U.S. health officials are investigating the deaths of two patients that may have been related to a brand of heparin blood thinner Baxter Internal Inc. The U.S. Food and Drug Administration said that the situation “appears to be an isolated incident.”

Although there is no specific evidence tying heparin to the illnesses, use of Baxter’s heparin has been suspended at Beebe Medical Center where adverse reactions were reported in five patients. Erin Gardiner, Baxter spokeswoman said that they “have not received any similar reports of adverse events from any other hospital regarding this widely-used product.

Last year after roughly 80 deaths were linked to contaminated heparin, Baxter recalled the medicine from several companies. Heparin is used largely before kidney dialysis and before major surgeries such as heart operations. The heparin used in these patients at Beebe Medical Center came in pre-mixed bags and was not the same product sold in vials that was part of the global recall last year. The heparin came from a North American derived bulk material supplied by Pfizer and not from the heparin Baxter claimed was altered in the China-based supply. Pfizer, based in New York, has not received any other reports of adverse reactions from heparin.

The two patients in Delaware, a 71-year old man and a 64-year old woman, did not have severe hypertension, or low blood pressure like the earlier cases. The symptoms involved intracranial bleeding. Wallace Hudson, Beebe Medical Center spokesman said, “We are not pointing fingers at Baxter. We don’t know what’s going on, but heparin is the only commonality that we were able to see ourselves.”

The hospital informed Baxter on Friday that the patients had become ill, and the company immediately contacted the Food and Drug Administration. The FDA sent medical teams to Delaware, and an FDA agent drove samples of the heparin bags directly to an agency laboratory in Queens, NY. The FDA spokeswoman, Karen Riley said, “Results of product testing to date by FDA and Baxter have not revealed any problems.”

Heparin has caused a flurry of litigation involving contaminated heparin and the allergic reaction, heparin induced thrombocytopenia, HIT. The injuries have been devastating. Our office is currently handling heparin related cases and would be happy to answer any questions.

Originally posted at InjuryBoard by Beth Janicek