Why didn’t the lawyer attend the client’s deposition?

I’ve never in 30+ years allowed my client to be deposed outside of my presence. That’s not the standard of practice in Iowa.

Participation Trophy Awarded to the Financial Planner with the Wrong Plan

What do you do when a professional you relied on for financial services steals your money? Lately there have been too many stories about financial fraud by professiionals. Why? Why are there so many looking for shortcuts to achieve wealth and success? Perhaps sociaty is just sending the wrong message about developing a plan and exercising patience. I refer to it as the Participation Trophy Syndrome.

In St. Louis they'd ask: "Whose sperm is on first?"

Apparently this isn’t an isolated incident in the fertility business caused by carelessness. Here is another story from San Francisco. This legal commentator being interviewed has pretty good suggestions about what to do when the process is fouled up, but that is where I our agreement end. In the case at issue the wrong sperm was used to fertilize the wife’s eggs.

AFTER MAKING A MISTAKE WHY SHOULD PROFESSIONALS APOLOGIZE?

After making a mistake why should medical professionals want to apologize? How about because it’s the right thing to do and you’ll sleep better at night having set the record straight with the person who was injured by your professional mistake. Publicly setting the record straight is important to a good professional reputation. At least it used to be.

But apologizing goes beyond merely the two people involved. There used to be the idea of setting a good example for those who come after us. And then there is the apology shield and what it teaches young doctors and medical students. How do the young people in society interpret what we’ve just done with this legal fabrication? They see it as one more official lie that those in power and those who support it have created. It’s just another double standard that speaks and reeks of hypocrisy. All this says is that those with sufficient earning power can get away with anything, even lying to a jury. And don’t disagree with me on this point because that’s exactly what this is, it’s a license to lie. When a doctor makes a mistake, then apologizes and latter gets to tell the jury he/she did nothing wrong, it’s nothing more than a big fat lie. And at trial it’s officially called lying under oath; but the law allows it. If this were Monopoly it’s the get out of jail free card. If I were a judge, I’d say, not in my court room. You’re not going to lie in my courtroom, neither unofficially or officially. The law is an ass.

THIS IS THE MEDICAL PROFESSIONS WEAPON OF MASS SELF-DESTRCUTION

From now on what happens to the real apologies, the ones that were sincere? They go right up in smoke. No longer can any patient believe any doctor’s apology. We can’t tell who is apologizing because their conscience is bothering them and who’s doing so because the hospital legal staff said, “Go apologize.” The joke is on the medical community. By not speaking out against the apology shield legislation the entire medical community looks and sounds seedy and greedy.

Somewhere along the way the medical community lost some of their sincerity and if they don’t start rethinking about who is in charge they risk losing all self-respect.

You see free apologies really aren’t all that free. A free-market apology costs something or at least places the apologizer at risk. But with this apology right out of a socialist bible there is not a cost to the person who publicly speaks the words of apology. Sort of like an apology from a communist leader who can’t lose your vote even if he/she refuses to say I’m sorry. The apology shield is another sign of America becoming more and more like a Communist country, a Godless regime without a soul. Welcome to the new America, one in which I make every apology.

Apology Shield: Communist Styled, Government Sanctioned Official Lies or "Official News".

I’ve covered the apology shield and today will be my last post on this subject, at least for now. I see it as state sanctioned approval of lying under oath. Some may disagree, but let me demonstrate my point of view with a small hypothetical.

 

HYPOTHETICAL

 

July 8, 2008 – Surgery. Following the surgery the doctor approaches the patient and states how sorry he is that he’s made a mistake and removed the wrong kidney. He explains that he was just too busy to read the chart before starting the surgery room. He further states that no one on the surgical team pointed out his obvious error because they too must have not reviewed the patient chart.

 

September 10, 2008 – The patient visits with an attorney and files suit alleging the doctor and surgical staff violated the standard of care by failing to read the chart and by operating and removing the healthy, rather than the diseased kidney.

 

May 12, 2009 – Trial in Polk County, Iowa. Direct examination.

 

Lawyer's Question: Doctor did you do anything wrong?

 

Doctor's Answer: No.

 

Lawyer: May I approach your honor?

 

Judge: Yes, let’s call a recess and meet in chambers.

 

Lawyer: I’d like to introduce the doctor’s statements that he made right after the surgery apologizing and admitting he made a mistake.

 

Defense Lawyer: Your Honor we object and cite the medical apology shield law that makes the words of apology inadmissible.

 

Lawyer: You’re honor the doctor has denied under oath doing anything wrong, when in fact he’s previously admitted to doing several things wrong.

 

Judge: My ruling is you can’t use the previously inconsistent statements to show he’s lying. The law doesn’t allow it; the law shields the doctor’s previous apology.

 

Lawyer: But your Honor that would then be hiding the truth from the jury. That would mean we are allowing the doctor to perjury himself.

Is this a preposterous scenario? No. We now have state sanctioned lying to juries. What shall we call this, officially sanctioned perjury? Or is it a license to commit perjury? Pick your poison; it’s all the same. What we now have in America is Communist style propaganda. The truth has simply become an inconvenient fact that the government rewrites and that Judges, in the name of abiding by the law, simply rubber stamp. In my mind, a revolution can’t be far off into the future. Good luck America.

APOLOGY SHIELD, THE EMPORER’S NEW CLOTHES

FAKE APOLOGY – THE POWER OF THE INTERNET

We’ve been covering the fake apology laws and why it’s bad for America. Today let’s talk about how common people can fight back to put truth back into medicine. What really is at stake is America’s heart and soul. What made this country great was a culture built on an honest days work – and simply being honest. Americans believe in being honest. It’s always been a part of our culture. Well the American flags fabric is frayed by this law that allows lying to be condoned in the courts.

As Americans we believe in capitalism and a free-market economy that creates better products and services than you can’t get in a communist country. I see a lot of products coming from China, and they are shoddy, crappy products that don’t work as they are intended. Americans make things that work and work right.  We need to get back to that culture, a culture where quality counts.  Communism is the antithesis of the American culture. Communism in China allowed infant formula to be laced with melamine that caused six infant deaths and more than 300,000 infants to go into some degree of kidney failure. Communism rewarded government officials who kept their mouths shut when the milk suppliers were doing an end-run on the government’s protein tests through the addition of melamine to raw milk; a product poisonous to humans. Communism then punished the lawyers who dared to file suits on behalf of the infants and their mothers and fathers. Communism rewards not just inefficiency but dishonest business practices. And that is what the apology shield is, it’s a way of rewarding bad behavior and doing it by sanctioning a lie.

Watch to the YouTube video about melamine and the Chinese Communist Party lying and consider how the apology shield will be viewed by the rest of the world. Are we any different than the CCP? 

On the other hand we have the free-market economy that would prevent or should prevent dishonest businesses from profiting in America. Competitors and government officials are empowered to speak out about illegal business practices and in turn we are all better off. (Well maybe not the SEC when it came to turning a blind eye to Madoff, but that’s for another day.)

With the apology shield officially sanctioning lying under oath, we aren't far behind Communist China.

Now the patients who are injured by shoddy medical practice and their lawyers are faced with a law that rewards dishonesty. The fake apology law says it’s alright to lie to the jury saying you did nothing wrong, when in point of fact you’ve apologized to the patient for doing just that. Absurd? I think so too.

As Americans we have to ask ourselves if we have to take it or can we fight back? The legislature thinks it owns you, just as special interests own them. Well they don’t and I can prove it to you. We have the Internet and that puts honesty back into the equation. YouTube is a great device for exposing lies, deceptions and half-truths that juries hear and are asked to believe.

The Internet is the place where Americans can post the truth. Take the recording you have and post it on YouTube. Let the truth be told to anyone wanting to listen. Let the liars walk naked in cyberspace. YouTube will show us all and all the patients know that the Emperor has no clothes. Allow me to remind you who the Emperor was.

There is a Danish author, Hans Christian Andersen, that we are all familiar. He wrote “The Emperor’s New Clothes” first published in 1837. What is true today was true in 1837. The vanity of those faking the apology shouldn’t swindle the rest of us into believing the naked truth. That lying to a jury remains wrong no matter how many laws they pass. The sky is blue no matter what law your state legislature passes declaring it pink.

“The story has given rise to its common reference as a metaphor in numerous situations. Most commonly, the statement "the emperor has no clothes" is used to refer to a situation in which (at least in the opinion of those using the phrase) the majority of people are unwilling to state an obvious truth, out of fear of appearing stupid, unenlightened, sacrilegious, or unpatriotic, or perhaps out of "political correctness". In such cases it is often implied that the motive and rationale for not seeing the obvious truth has become so ingrained that the majority do not even realize that they are perpetuating a falsehood.”

See Wikipedia, The Emperor’s New Clothes

Like me you should hate this kind of legal fiction that is nothing but official sanctioned dishonesty. You should abhor the fake apology and its shield that cloaks lies as truths and then parades them in front of juries. The honest medical professionals, like winners wanting to win, find this law degrading. In this instance the law assumes we are all dumb and naïve enough to believe those with the power get to rewrite the truth by simply changing the facts through a legally sanctioned fiction. That’s simply wrong for America. It’s not what made America great; it’s a sign of an America I don’t recognize.

Like the honest physicians we should all feel shame.

Join me today to listen to the beautiful music created by the Russian musical group Viagra, meaning Acapela.

IT’S TOO LATE TO APOLOGIZE

WHY THEY ASK FOR THE RIGHT TO LIE WITH A FAKE APOLOGY

An interesting thing about those wanting the apology shield is the emotion that drove them to ask the Iowa legislature to enact the law. They were being greedy and in most situations where greed is the motivating force they will lose what they hoped to gain.

WHAT THEY DON'T KNOW WON'T KILL THEM

Before the apology shield law was enacted, the best thing the defense lawyers had going for them was they could control the doctors and what they said to the patients and those waiting for the patient.  It was easy to just say, say nothing. Doctors are human, and as humans the words they speak are imprecise. Also like most people once they start talking they can’t resist saying one more thing.  And it’s that one more thing that will cause all the problems.

And that’s the interesting thing about the English language, it’s very imprecise. And humans are very unpredictable.

So join me in listening to “Apologize”, by One Republic.

How to expose the fake apology under the Medical Apology Shield

A Patient’s Guide to Dealing with the New Fake Medical Apologies

Today's apology is Chris Matthews apologizing for his characterization of Hillary Clinton's success in politics coming down to her husband's infidelity and that people must have felt sorry for her. It seems genuine to me.

http://www.youtube.com/watch?v=jLIasbt_0xE

Okay yesterday we talked about the importance of an apology and why these new fake apology laws for the medical profession are bad medicine for the community. Today let’s talk about what to do when you’re the patient and are confronted with the fake apology.

FAKING OUT THE FAKERS

Say you’re the patient or the patient’s relative who is on the receiving end of the fake apology. You’re standing outside of the surgical suite, the surgeon emerges looking glum and you hear the surgeon utter the fake apology words, “I’m sorry, but I ______________. “(fill in the blank with your basic never-event medical mistake like wrong-site, wrong-side, wrong-procedure, wrong-patient, wrong-kidney removed, wrong-finger amputate, wrong-leg amputated, wrong-knee operated on, wrong-side of the brain drilled into, wrong-wrong-wrong-wrong-whatever – The list is long and excruciatingly mind-numbing. ). Your immediate reaction is to listen, but at this moment in time, for the sake of your BFF, the patient, you need to be ready to go on the offensive. So listen first then get ready for some follow up questions during the Q&A period. This is important because what you have to know is that not every word spoken may later be classified as part of a fake apology.

My guess is the doctor expects you to first be in shock and then to be forgiving him/her. Those making fake apologies really believe you’re stupid enough to take it at face value and walk with them down to the fake hospital chapel to ask God for forgiveness. What the doctor doesn’t expect is for you to be listening and be ready with a series of questions that go beyond the apology head-fake. An honest and sincerely apologizing doctor will answer your questions; the dishonestly insincere ones will clam up like a jewel thief talking to the cop on the beat right after he’s broken in and is heading out of your apartment.

To fully appreciate this point I need you to be in the right frame of mind. So think about this situation as if the doctor were your teenage son or daughter who violated curfew, brought the car home sans the hubcaps, covered in mud and with the entire passenger side scraped and dented. You know that feeling you get when you hear them say, “I’m sorry, I hope you’re not mad.” It’s that little voice in the back of your head that says, “Not on your life buster/missy, it’s not going to be that easy.” Yes, that one; that’s the frame of mind you’ll need to be in when you hear the apology coming your way from the medical community.

Okay now that I’ve reengineered your thinking let’s go over the questions. As you look the doctor squarely in the eye reach down to your pants pocket and turn on the recorder. You did bring a recorder didn’t you? Okay, I’ll cover that in a later post. You should have a medical apology digital voice recorder that you keep in your pocket. Practice turning it on and off in at home in your living room before ever accompanying someone to surgery. Get a Sharpie and write on the case, “Fake Apology Meter”.

So now the doc has said the words of apology and he/she is looking at you waiting for you to say, “That’s okay my wife didn’t need the healthy kidney anyway. How else can we save you money? Would you like to do surgery on me?” But instead you’re going to ask these questions.

1. What did you do wrong?

2. Who made the mistake?

3. What is the mistake that was made?

4. Did you read the chart before starting the surgery?

5. Why not?

6. You do know your left from your right, don’t you?

7. How much sleep did you get last night?

8. During the surgery were you drunk or on drugs?

9. Was it because you were in a hurry to get to another operation, the golf course or a vacation?

10. Who else is involved with making this mistake?

11. Why didn’t any of other members of the surgical team point out you were operating on the wrong _________? (Again fill in the blank.)

12. Tell me again why the mistake was made that led to my friend’s injury/death?

13. Will you or the hospital be charging the patient for this procedure?

14. Tell me again why the mistake was made that led to my friend’s injury/death?

15. Will you be putting all of this information in your surgical report?

Okay, I realize you can’t ask 15 questions, but you can ask the first 3 and if the doctor is willing to engage with you then keep asking questions. Hey remember, he/she started this apology dialogue, not you. He/she is the one getting paid the big bucks while ruining your BBF’s life. All your family asked for was honest professional medical work, not taking out the wrong kidney along with a head-fake apology.

WHY ASK QUESTIONS

You’ll ask questions because, not every word spoken as an “apology” may later be considered to be part of an apology. The more they say the less likely the judge is to later find it as an apology.

WHY IS THE DIGITAL RECORDER A NECESSARY MEDICAL INSTRUMENT?

In order to protect ourselves every patient and working man and woman who is involved with a surgery needs with them a standard hand-held battery operated recording device as part of your hospital-stay overnight bag. You should pack your family’s medical recording device right in with your toothbrush. It should be a part of every patient’s arsenal that we are using to bring honesty back into medicine. The honest doctors won’t mind, it’s the dishonest one’s who deserve it.

Now tomorrow I’ll tell you why it’s important to our children that we record the fake apology.

Apology Shield Examined - Why we apologize.

After making a mistake why should medical professionals want to apologize? How about because it’s the right thing to do and you’ll sleep better at night having set the record straight with the person who was injured by your professional mistake. Publicly setting the record straight is important to a good professional reputation. At least it used to be.

But apologizing goes beyond merely the two people involved. There used to be the idea of setting a good example for those who come after us. And then there is the apology shield and what it teaches young doctors and medical students. How do the young people in society interpret what we’ve just done with this legal fabrication? They see it as one more official lie that those in power and those who support it have created. It’s just another double standard that speaks and reeks of hypocrisy. All this says is that those with sufficient earning power can get away with anything, even lying to a jury. And don’t disagree with me on this point because that’s exactly what this is, it’s a license to lie. When a doctor makes a mistake, then apologizes and latter gets to tell the jury he/she did nothing wrong, it’s nothing more than a big fat lie. And at trial it’s officially called lying under oath; but the law allows it. If this were Monopoly it’s the get out of jail free card. If I were a judge, I’d say, not in my court room. You’re not going to lie in my courtroom, neither unofficially or officially. The law is an ass.

THIS IS THE MEDICAL PROFESSIONS WEAPON OF MASS SELF-DESTRCUTION

From now on what happens to the real apologies, the ones that were sincere? They go right up in smoke. No longer can any patient believe any doctor’s apology. We can’t tell who is apologizing because their conscience is bothering them and who’s doing so because the hospital legal staff said, “Go apologize.” The joke is on the medical community. By not speaking out against the apology shield legislation the entire medical community looks and sounds seedy and greedy.

Somewhere along the way the medical community lost some of their sincerity and if they don’t start rethinking about who is in charge they risk losing all self-respect.

You see free apologies really aren’t all that free. A free-market apology costs something or at least places the apologizer at risk. But with this apology right out of a socialist bible there is not a cost to the person who publicly speaks the words of apology. Sort of like an apology from a communist leader who can’t lose your vote even if he/she refuses to say I’m sorry. The apology shield is another sign of America becoming more and more like a Communist country, a Godless regime without a soul. Welcome to the new America, one in which I make every apology.

WHY SHOULD I APOLOGIZE?

Hopefully our mother’s and father’s taught us that after you do something wrong you should apologize. The apology is meant to communicate a sincere feeling of remorse. We are taught the act of apologizing is a learning tool, for the wrongdoer. The person apologizing does so to affect their own conscience while conveying sincerity to the person wronged. The act of apologizing is a character building event.

But, where the person apologizing has nothing to lose, it isn’t really sincere; meaning for an apology to mean anything there has to be costs, or negatives and risks. That’s how we learn and along the way to build good character and hopefully a solid reputation.

Recently we’ve seen major celebrities in situations that created the need to apologize. Serena Williams could be seen at the U.S. Open Tennis Center verbally assaulting the linesman with curses that I’m sure made her handlers and endorsers must have cringed. She was disqualified by penalty points, which didn’t bring an immediate apology, but the next day she took to the airwaves in a more apologetic mode.

Most of the video on YouTube has been removed. I wonder why? I did find one.

And then there was the Rapper Kanye West’s interruption and outburst when Taylor Swift’s video won at the MTV Video Music Awards that sent him to apologize on the Jay Leno show.

And the last is Congressman Joe Wilson interrupting the President during is address to the Congress. Congressman Wilson later apologized.

Interesting how most of the Serena Williams outbursts were removed from YouTube. I didn’t believe either the Williams or the Wilson apologies. I did believe Kanye West.

So what’s wrong with the Williams and Wilson conciliatory words following their errors of judgment? Kanye West speaks his words and really seems to mean them. The words of neither Serena Williams nor Joe Wilson seem genuine.  Words just aren’t enough. Each seems to lack character.

Tomorrow I’d like to talk about the medical community’s character when it comes to the apology shield. The apology shield is a sign of the widening crack in American character.

Wrong-side surgery article

This article discusses the issues involving wrong-site surgery and how to deal with it. It also discusses the legal principle of res ipsa loquitur, the thing speaks for itself.

Getting Surgery Right

John R Clarke, MD ; Janet Johnston, MSN, JD ; Edward D Finley, BS

Authors and Disclosures

Published: 09/01/2007; Updated: 11/16/2007

Wrong-site surgery is perceived as a medical error that should never happen, not a medical risk that the patient must accept, and therefore a core patient safety problem. Legally, it qualifies under the principle of res ipsa loquitur. The National Quality Forum (NQF) includes wrong-site surgery events on its list of Serious Reportable Events, commonly referred to as never events.^[1] Several states use that list as the basis for reporting patient safety problems. In some states (eg, Minnesota), these reports are made public. Florida imposes fines and disciplinary actions against surgeons for doing wrong-site surgery. As of July 2006, they had disciplined 45 physicians; 3 had been fined $20,000 each.^[2]

The objective of this author is to identify factors contributing to this medical procedure failure or error. As embarrassing as it is the medical profession needs to address the problem while recognizing why it's occurring. Doing too much in too brief a period of time, being distracted, not reading the chart and allowing the system of health care to operate like factory piece work.  Frankly it's not working for the doctors or the patients.  Simply blaming doctors isn't the answer.  We need to fix the system that allows it.

Objective: We sought to identify factors contributing to wrong-site surgery (wrong patient, procedure, side, or part).

WITH TORT DAMAGES REFORMED WHO WINS AND WHO LOSES?

Today is the end of May 2009 and I thought it appropriate to end Tort Reform month by focusing on the winners and losers when society artificially limits tort damages with caps. It’s been fun this month writing about a topic that strikes so many as emotional. I’ve tried to analyze medical tort reforms from an economic view. I’ve probably succeeded in some respects and in other respects failed miserably. But like always our theme at Lombardi Law Firm has been to tell you what you need to know not necessarily what you want to hear. If you’ve enjoyed it or even if you’ve disagreed with my conclusions, let us know. Drop us a line or a telephone call; I take them from all over the country. I hope the patients and the doctors are better prepared for the road ahead. I wish you both the best of luck. Now, back to the winners and the losers of medical tort reform.

WINNER - Doctors who make the biggest medical mistakes – They get the most from capping the patients’ ability to recover compensatory damages, either economic or non-economic, after a medical mistake. They pay lower malpractice premiums (even though they make the worst mistakes) and by doing so get to take home more income. Their lifestyles will not be affected, but if they are affected, it will be towards improvement economically and socially. The general public will not be made aware of the medical mistakes these doctors cause, because their will be fewer lawsuits that make those mistakes public. Also bolstered by their success at hiding mistakes information will become more difficult to find. They control what goes into paper medical records that have no time or date stamp; a trail for detecting changes; and these doctors will get away with more and more medical mistakes. Patients who suffer the consequences will not have their day in court thus allowing the medical community to continue to sweep evidence of mistakes under the rug.

WINNER - Medical Malpractice Insurance Companies – Insurance companies have a win-win situation because they still get to collect premiums from those doctors making the worst mistakes and with each of those loss events, the losses will be kept artificially low. These insurers get their cake and eat it too. They are clear winners.

WINNER - Politicians – The politicians win because with capping damages they’ve created a steady stream of corporations and individuals willing to annually contribute to their campaigns. Those for and those against laws that artificially cap medical damage mistakes, will contribute to their next campaign effort on an annual basis. Patients, who for the most part haven’t yet understood what this law means economically to them, will not demand political accountability. At least at this point the politicians are clear winners.

LOSER - Health Insurance – With artificial damage caps these companies lose out all the way around. Patients injured by a medical mistake will file all medical expenses with their health insurance. Due to artificial caps on recovery lawyers will take fewer and fewer cases that would have resulted in subrogation recovery from liability insurance carriers. If there is no medical malpractice claim brought or with limited recovery available it is not likely health insurers will be able to recover any medical expense paid for that care made necessary by medical errors. After the initial care the health insurers will continue to lose out by increased payouts on future medical care. With medical malpractice claims being as imperfect as they are, patients even with an award will run out of money and health insurers will to some extent be forced to pick up the tab for medical claims.  

TEMPORARY WINNER/LOSER - Hospital Systems – They win and they lose. They win with paying lower malpractice premiums, for the doctors they employ, but then hand it right back with picking up the bill through lower reimbursement rates from Medicare and Medicaid government programs. Patients that run out of money will soon file for coverage under these governmental programs. Those that continue to have health insurance will increase the burden on health insurance carriers that will in turn negotiate lower and lower reimbursement rates with hospital systems.

BIG LOSER - The United States Government – A clear loser under capped damage laws.  While mistake ridden doctors will continue to practice paying high income taxes; the citizen patients who are injured will end up on Medicare and Medicaid programs along with the Social Security Disability program thereby increasing the payouts and pinching an already shrinking federal budget that is being consumed by entitlement programs.

BIGGER LOSER - States, counties, cities and towns that provide medical care for the poor and uninsured – Clear losers under capped damage laws. When patients run out of cash from lower awards or they are without awards because lawyers refuse to take their cases, state and county hospitals will treat more and more no-pay patients. Many will end up institutionalized in government institutions. This will increase the demands for paying more medical expenses of the needy on an already straining budget.  

ANOTHER BIG LOSER - The Taxpayers – Taxpayers clearly lose. They get to pay higher and higher taxes for the cost of the biggest and worst medical mistakes. The cost of medical mistakes is not being eliminated; that cost is simply being shifted from those that made the mistakes to the tax payers. As demands increase on government entities to provide for the poor patients who never recovered or had reduced recovery through litigation, the economic burden will increase. Taxes to pay for these programs will have to increase. As patients the taxpayer gets a double bill. See immediately below.

BIGGEST LOSER - The Patients – Are the biggest losers under capped damage laws. As a patient they have little information to make an informed decision about which doctors and hospital systems put them at the greatest risk of a medical mistake. Without economic pressure being put on those doctors and hospitals that make the biggest mistakes systematic changes will not take place thereby increasing the number and severity of medical mistakes. In other words you’ll get more severe medical mistakes with greater and greater risks to patients who can ill afford the costs being shifted to them.

Can the patients look to the legal system for help? No. Patients lose again with the legal system that will not be able to take on the patients’ medical mistake cases due to risk-benefit economic analysis. In other words the limited recovery will not make the case economically feasible to pursue. Lawyers who have developed expertise in this area will practice another area of the law, making those lawyers willing to take such cases harder and harder to find.  This will force higher contingent fee percentages; a simple supply and demand economic issue.  When you do find a lawyer you may still not find satisfaction. Lawyers and law firms will not advance thousands of dollars in litigation expenses when the recovery is artificially pre-capped. Those cases that are taken will see a higher contingent fee percentage to compensate for high litigation costs and the risk of taking on tough liability cases with lower damage (recovery) rewards and to offset those cases that produced little or no recovery.  This problem will not be readily apparent, but as the legal market adjusts the problem will become clear after you, the patient suffer the consequences of a medical mistake. The problem is the patient (and taxpayer) will be the last to know and will have the hardest time changing the system to force doctors to pay for their own mistakes.

When faced with hospitalization or the need for immediate medical attention, including surgery, the patient gets little information. What it there is difficult to search and when a major medical mistake occurs they have little chance of recovering compensatory damages sufficient to pay those that line up at the recovery end. After a limited recovery, those asking for payment or reimbursement will include the insurance companies enforcing subrogation clauses, medical service providers with unpaid or uncovered medical expenses, the litigation expenses and the lawyer with his contingent fee. Whatever money is left over after the recovery pays the aforementioned will soon go to future medical expenses and living expenses. The awards will be inadequate for any long term planning; a fact quickly realized by the patients and their families. These patients will have few choices but to go on government medical and disability programs. For the most part they will be forced to divorce and the children to work instead of attending colleges and universities. For most of them life will be a spiraling downward economic cycle towards the poverty line. They will find insurance companies of all kinds (life, medical, disability, etc.) unwilling to insure them leaving them no choice for what the government offers them. Employers viewing them as a medical expense that can’t be controlled will find excuses not to hire them. At that point they will begin to fully appreciate the nature of how artificially capping damages has affected them.

THE SYSTEM REMAINS BROKEN, CAPS DO NOTHING TO FIX IT – GAMBLING THROUGH BLIND FAITH

The current medical system buries medical mistakes and the risks for contracting infections through laws that protect information secrecy. While doctors are disciplined for serious malfeasance, once the medical community determines the need for action they do not make that information ready available for patients to search and review. For instance Texas, like Iowa allows you to research one doctor at a time and then only to see information that has been made public. The patients are forced to search in all 50 state medical board web sites before knowing if the doctor they’ve chosen or intend to choose has a record of making mistakes. Patients have little time to do this kind of research and are forced to consent on blind faith. It’s impossible to go to one web site and search by a doctor’s name. With hospital systems it’s even more difficult to find any information about infection rates and employee mistakes. As an example, try to find out how many wrong-site surgeries have occurred in any one institution, hospital system or any one physician. Good luck, because you can’t.

 

Another wrong-site or wrong-side surgery at a Rhode Island Hospital

Placing the surgeon and surgical staff on administrative leave pending the results of an investigation Hasbro Children's Hospital in Providence, Rhode Island is reporting a wrong-site or wrong-side surgery during oral surgery.  It makes me wonder if these types of mistakes, as common as they are, have to do with tort reforms being added to the hurdles patients must straddle to successfully litigate for a favorable verdict. After getting so many breaks a professional begins to expect he or she is invincible or untouchable.

This is an example of what I meant this morning by tort reform increasing the number of personal injury claims. I think doctors are overworked and that hospital systems put too much emphasis on brick and mortar projects rather than patient safety training programs.

Malpractice is a very personal type of claim

“It would never happen to me.”

This is the assumption of everyone who votes to limit the rights of the injured to receive compensation when someone else causes the injury. It has to be. With few exceptions there can be no other explanation for working people.

In a recent People Magazine ad, page 74 of April 27, 2009 I read these words from 14 year old Rachel Kramer, from the day before she was diagnosed with thyroid cancer. Here complete statement is: “It would never happen to me. I’ve got bigger things to worry about, like homework, friends and all the cute upper classmen.”

Rachel Karmer, 14, the day before she was diagnosed with thyroid cancer.

It’s an ad for Light of Life Foundation, www.checkyourneck.com. They warn that “Confidence kills.” And I would have to agree.

It’s the confidence you have that it, meaning malpractice of any sort, will never happen to you. I hope it doesn’t and I hope if and when it does that you aren’t one of the unfortunate ones who die or live a life altered by the preventable errors of the professionals you trust.

But if it does, ask yourself, will you be willing to accept that no exception can be made for you?

Will you be willing to lose your life savings?

Will you be willing to watch a loved one die without the resources to financially support them?

Will you be willing to watch the responsible party go on without a change in their life, while your family suffers the consequences?

If you can answer yes, then by all means vote for tort reform; but if that something happens to you, just don’t bother going see an attorney. It’s not that we won’t care, we will, but there is nothing we can do for you. While doctors may threaten to quit medicine, lawyers don’t threaten anything; we just won’t take your “case”.

A blood transfusion leaves woman dead

A Haifia woman who received the wrong type of blood during surgery to reset a broken leg died of respiratory and cardiac insufficiency two weeks after the blood transfusion.

"The patient was an 84-year-old woman who, like many people at her age, had prior conditions including lung and heart disease... The error [in the type of blood supplied by the blood bank] was discovered quickly and the transfusion was stopped shortly after was given," Ramban wrote in its response.

The record is not clear whether or not the incorrect transfusion caused the conditions that resulted in her death.

Probably the most dangerous reaction from being transfused with the wrong blood type is an immediate hemolytic transfusion reaction.  This type of mistake is almost always the result of what is called "administrative error".

“When it does happen, the infused red cells are hemolyzed, and the patient experiences chills and fever, a fast heart beat, possibly a drop in blood pressure and, sometimes, kidney failure. The transfusion must be discontinued as soon as this is recognized and the patient given IV fluids to promote good kidney function. Tests are then done with the blood to determine the extent of the problem.”

Wrong-stie surgery - A new survey sheds light on this dark subject.

More and more doctors are being allowed to avoid paying for their mistakes. At this point in the history of our country fear seems to drive every decision. We are consumed with fear. Lobbying groups have senses this weakness in our culture and seize the opportunity to drive decisions that go against common sense. This one is no different.  Tort reform measures that allow them to avoid paying for malpractice mistakes will attract the wrong kind of doctor to these states. In this report the AAOS outlines broadly the types of medical mistakes you can expect to see more of in the future.

The most common error, making up 29% of the incidents, was equipment errors. 

“Instrumentation was reported to cause an error about twice as often as an implant (63% of incidents compared to 32%). Implant errors usually involved a missing implant (43% of these cases) or having the wrong implant (29%). Implants breaking either pre- or intraoperatively were fairly rare occurrences. “

Being able to affectively communicate remains an ongoing concern. Communication errors accounted for 25% of the reported errors. These errors took the form of written, verbal or dictated information or, in 23% of these cases; it simply amounted to a failure to communicate anything.

One interesting reported problems is described as follows: “19% of these incidents resulted in a near miss involving the patient, and the error resulted in a negative outcome (including delayed surgery or a revision) in 33% of these cases. 47% resulted in no harm to the patient.” Don’t ask because I have no clue what this means. You’d think if patient safety were involved there would be clarity in describing the problem, but this description says it all.

Wrong-site surgeries continue to be problematic. There were 27 reports of wrong-site surgery, which can include the wrong side, meaning left versus right; or just being in the wrong part of the body when they state to cut. These accounted for 59% of these were wrong-side. The other wrong-site problems were being on the correct side but ultimately in the wrong location. Things like operating on the correct hand but the wrong finger.  These mistakes included doing the wrong procedure and operating on the wrong patient.

What the survey described as the most serious of errors were medication errors. There were eight of those; a mistake that results in several deaths and serious permanent injury to the patient.

What is most interesting to note about this study is the “resistance” to change that protects the patient. “The study's authors report that there has been "resistance" to adopting patient safety protocols and that the introduction of these programs can represent a culture shift in some ORs. While this survey shows that about half of all reported errors don't result in any harm to the patient, it also highlights room for improvement in patient safety and helps to illustrate how outcomes can benefit from relatively simple measures.”

As painful as this may be it’s a necessary component of change that will result in a better health care system.

Lawsuit Stemming From Deaths at Greenwood Home For Disabled

Under a court order since November of 2004, the Glenwood Resource Center of Glenwood, Iowa, a state-run home for the disabled, has experienced one death per month for the last thirteen months. Ironically, they quote Aristotle for their "quality quote," which reads, "We are what we repeatedly do. Excellence, then, is not an act but a habit."

For those who are unfamiliar with the recent articles written by the Des Moines Register's Clark Kauffman, the facts of this tragic series of incidents are these:

• Glenwood Resource Center has been operating under a court order, enforced by the United States Justice Department since November of 2004. Glenwood was given three years-until October of 2007-to comply with minimum standards of care. Glenwood was given another year to comply with the court order when deadline was extended to October of 2008. The October 2008 deadline passed with no action against Glenwood.
• Unable to complete many of the duties listen in their job descriptions because they were not licensed within the State of Iowa, the two previous medical directors had either no experience in running a medical center or had a lot of experience in filing lawsuits and providing questionable care.
• Over the past 14 months, Glenwood has employed nine unlicensed psychologists who answered to yet another unlicensed employee, the psychology administrator, for a total of 11 unlicensed staff members. However, none of the nine psychologists can be reprimanded because Iowa law only requires private, for-profit psychologists to comply with state licensing requirements.
• A lawsuit was filed by Georgette Alexander of Oskaloosa after her son, a Glenwood resident, died when he was not properly monitored following a choking incident.
• Iowa Governor, Chet Culver, who refused to make public a multitude of e-mails among his staff relating to the death of the Glenwood resident, now claims to be concerned and expects changes to be made.

This series of unfortunate events raises eyebrows as well as questions. Why are both Governor Culver and the U.S. Department of Justice allowing the extension of deadlines? Within forty-eight hours of the October 2007 deadline another Glenwood resident died due to inadequate nursing care. Additionally, why has there been no adverse action taken against Glenwood for failing to meet the October 2008 deadline? Why would Glenwood follow any deadline, when it is apparent that there are no repercussions when they are failed to be met?

Another issue, which leads to problems at Glenwood Resource Center, is the fact that Section 154B.3(3) of the Code of Iowa requires only private, for-profit psychologists to obtain a license within the state of Iowa in order to practice.

In another recent article by the Des Moines Register, Governor Culver claimed that the Glenwood center is making progress in implementing the 2004 court order. One would certainly hope so; the 315 residents at Glenwood have been waiting four years.

Disease Transmission From the Transplantation of Organs

According to the United States Department of Health and Human Services, in the year 2006 there were a total of 98,263 patients listed on the organ donation waitlist within the United States, but only 14,756 organ donors. To make the situation even bleaker, there are a small number of organ recipients who receive more than just their desperately needed organ; they also receive life-threatening disease.

Within the United States, there are significantly more patients waiting for organ donation than there are organ donors. High demand causes organ procurement groups, such as the Indiana Organ Procurement Organization, to race against time in order to determine which organs are safe. However, due to increased demand, the desperate need for organs, and time restraints corner-cutting has also increased, which leads to increased instances of failure within the organ-sharing network.

Dr. Michael Nalesnik, Vice Chairman of the Disease Transmission Advisory Committee of the United Network for Organ Sharing and a professor of pathology at the University of Pittsburgh Medical Center, claims that transmission of disease from donor to recipient occurs less than one percent of the time. This means that with the more than 28,000 transplants nationwide per year, there are fewer than 280 instances where disease is transferred from donor to recipient.

There are minimum procurement standards that outline the appropriate medical tests and examinations before an organ is accepted for transplantation. However, the nature of the standards leave wide discretion to over 50 organ procurement groups that assess organs used for transplantation. Another problem is that these assessments are made with the clock ticking, in order to ensure that they reach the recipient in as little time as possible and to prevent the organs from perishing. This could result in organs being rushed through tests and examinations, or organs skipping tests and examinations, which could result in further injury to patients that are already in dire straits. Transplant surgeons also have the discretion to reject and organ, which is a decision that is sometimes made when there is limited information about a donor.

The United Network for Organ Sharing reports that malignant cancer was the cause in 14.5 percent of kidney recipients five to ten years after the transplant operation.

CAT Scans Lead To Radiation Exposure

A computed tomography scan ("CT scan" or "CAT scan"), which is a procedure that takes no more than a few minutes, is a medical imaging method that is used to create three-dimensional x-ray images. CT scanning has a number of benefits over traditional medical radiography. For example, CT scanning eliminates superimposed structures outside the area of interest and tissues that differ in physical density can be more easily identified. The most crucial part of the scan is usually completed in under a minute, but prolonged scanning could result in a number of severe health risks due to high radiation exposure.

A typical dose of radiation for a CT scan that includes the head and chest would result in exposure to 7.3 mSv (millisievert) of radiation. For comparison, the average survivor of the Hiroshima and Nagasaki bombings were exposed to 40 mSv of radiation, and the average radiation exposure from natural sources to an individual within the United States is about 3 mSv. Additionally, the effects of low doses of radiation-less than 100 mSv-are observed on a cellular level and may not be detected for up to twenty years after exposure.

According to the United States Nuclear Regulatory Commission, the exposure to radiation can have three effects: 1) cells are injured or damaged and then later repair themselves, resulting in no enduring damage; 2) cells could be killed, which happens on a large scale every day; or 3) cells incorrectly repair themselves, which results in a biophysical change.

Genetic effects and the development of cancer are the primary adverse effects attributed to radiation exposure. Cancer is five times more likely to occur after radiation exposure than a genetic effect.

With CT scanning technology on the rise, the likelihood for public exposure to harmful levels of radiation increases. Traditionally, it was a physician's decision whether or not to scan a patient; but today, an individual may undergo a scan of their entire body without consulting a primary care physician.

There exists a lack of awareness of the risks of radiation exposure. Patients who undergo CT scanning, as opposed to other imaging techniques, are exposed to higher levels of radiation. For example, MRI is safer, but more expensive and has limited availability. As CT technology increases, the necessary dose of radiation also increases. Therefore, there is an increase in radiation exposure to the public, as well as its adverse health effects.

Due to the increased public exposure to radiation, there is an increase in controversy regarding a more conservative use of CT scanning. For example, asking the question "Is there a reasonable need for a CT scan in this situation?" might help decrease the detrimental effects of radiation on the public.

Deaths at Iowa's Glenwood, A Home For Disabled Lead To Lawsuit

Under a court order since November of 2004, the Glenwood Resource Center of Glenwood, Iowa, a state-run home for the disabled, has experienced one death per month for the last thirteen months. Ironically, they quote Aristotle for their “quality quote,” which reads, “We are what we repeatedly do. Excellence, then, is not an act but a habit.”

 

For those who are unfamiliar with the recent articles written by the Des Moines Register’s Clark Kauffman, the facts of this tragic series of incidents are these:

 

· Glenwood Resource Center has been operating under a court order, enforced by the United States Justice Department since November of 2004. Glenwood was given three years—until October of 2007—to comply with minimum standards of care. Glenwood was given another year to comply with the court order when deadline was extended to October of 2008. The October 2008 deadline passed with no action against Glenwood.

· Unable to complete many of the duties listen in their job descriptions because they were not licensed within the State of Iowa, the two previous medical directors had either no experience in running a medical center or had a lot of experience in filing lawsuits and providing questionable care.

· Over the past 14 months, Glenwood has employed nine unlicensed psychologists who answered to yet another unlicensed employee, the psychology administrator, for a total of 11 unlicensed staff members. However, none of the nine psychologists can be reprimanded because Iowa law only requires private, for-profit psychologists to comply with state licensing requirements.

· A lawsuit was filed by Georgette Alexander of Oskaloosa after her son, a Glenwood resident, died when he was not properly monitored following a choking incident.

· Iowa Governor, Chet Culver, who refused to make public a multitude of e-mails among his staff relating to the death of the Glenwood resident, now claims to be concerned and expects changes to be made.

 

This series of unfortunate events raises eyebrows as well as questions. Why are both Governor Culver and the U.S. Department of Justice allowing the extension of deadlines? Within forty-eight hours of the October 2007 deadline another Glenwood resident died due to inadequate nursing care. Additionally, why has there been no adverse action taken against Glenwood for failing to meet the October 2008 deadline? Why would Glenwood follow any deadline, when it is apparent that there are no repercussions when they are failed to be met?

 

Another issue, which leads to problems at Glenwood Resource Center, is the fact that Section 154B.3(3) of the Code of Iowa requires only private, for-profit psychologists to obtain a license within the state of Iowa in order to practice.

 

In another recent article by the Des Moines Register, Governor Culver claimed that the Glenwood center is making progress in implementing the 2004 court order. One would certainly hope so; the 315 residents at Glenwood have been waiting four years.

Patient Safety: What types of dumb medical mistakes can you expect as a hospital patient?

The Institute of Medicine estimates that each year in the United States our healthcare system wastes up to 98,000 lives, 2.4 million extra hospital days and $9.3 billion in excess charges due to “serious reportable events”; put plainly, errors/mistakes that were easily preventable.  

“Tens of thousands of lives are forever changed each year as a result of healthcare errors.  There is a critical need to enhance health system capacity, so that all patients will receive care that is safe and effective.”    - NQF President and CEO Janet Corrigan  

Who pays for SRE’s?

Who pays for these mistakes? You and I do. The taxpayer does either through taxes to provide governmental medical assistance programs to the poor and aged, through higher rates for private health insurance premiums or generally in higher health care costs.

What are these serious but avoidable mistakes?

There is a list of SRE’s, as they are referred to in the medical industry. I’ll include that list below. Most of the SRE’s are easily avoided or corrected.  Others are not; such as the criminal behavior SREs.

Are civil lawsuits for damages the only way to seek changes to avoid SREs?

I’d like to say no, but I’m not so sure the general public appreciates how difficult proactive change can be in the health care system.  Traditionally civil lawsuits were the vehicle to right the wrongs. Civil lawsuits come after the SRE either maimed or kills the patient and in that sense it’s simply putting a band aid on the wound that already exists; the lawsuit comes after the insult and doesn’t stop that incident, but suits do have a deterrence effect for the future.  In recent years jurors have become stingier and stingier in awards; a trend that has all but eliminated any deterrence. Defendants feel empowered by jurors that ignore wrongdoing and take the law into their own hands.  Conservative judges who pander to the mentality of jurors awarding little or nothing only extend the empowering of those who do wrong and rationalize their own wrongdoing.  Corporations have no conscience, no heart and no soul.  Everyone in corporations have a job to do and can easily rationalize away systematic wrongdoing simply by saying, “It wasn’t my job.” Or “I was just doing my job.” Jurors who reflect the “it won’t change anything” or “accidents happen” mentality simply ignore reality. Yes what goes around does come around. And no just because you’re now injured doesn’t mean you get treated any different by pandering and uncaring juries. You too get the same attitude from those conservative judges and juries.

Where does your state stand on SRE’s? Is your state included or not included? If not included then why not?

Only 25 states have joined the efforts to make the medical facilities in their states safer by avoiding those practices that make up the SRE list.  Iowa, where I live is not one of them. Tomorrow I’ll list those states and you can ponder the difficult question of why your state government would choose to not be a part of changing your healthcare system to avoid SREs.  One has to wonder if lobbyists associated with hospital and health care systems are doing more harm to this country than any civil lawsuit ever did.

What is the bottom line? How can you be affected?

Take a good look at the following list of SRE’s and consider if you are the patient how each may impact your life.  When you read this list you are walking through history of health care in which, in the past these mistakes, like many of the patients have been buried, covered up or only whispered about in the hallway, rather than published, discussed and changes implemented to avoid them in the future. Don’t fool yourself into believing they still don’t occur; because they do. The general public seems weary of the law and use of civil lawsuits to implement change; and that’s fine with me, so long as you the public become active in seeking change yourselves. Go back to sitting in front of the television or not wanting to be bothered and you may very well find yourself, your spouse or even your children one of the disabled or dead. It’s your choice, as a juror, choose to honor the civil lawsuit process or get active. There is no free lunch.

Serious Reportable Events

• Surgical Events
• Surgery performed on the wrong body part
• Surgery performed on the wrong patient
• Wrong surgical procedure performed on a patient
• Unintended retention of a foreign object in a patient after surgery or other procedure
• Intraoperative or immediately postoperative death in an ASA Class I patient

Product of Device Events

• Patient death or serious disability associated with the use of contaminated drugs, devices or biologics provided by the healthcare facility
• Patient death or serious disability associated with the use or function of a device in patient care in which the device is used or functions other than as intended
• Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility

Patient Protection Events

• Infant discharged to the wrong person
• Patient death or serious disability associated with patient leaving the facility without permission
• Patient suicide, or attempted suicide, resulting in serious disability while being cared for in a healthcare facility

Care Management Events

• Patient death or serious disability associated with a medication error (e.g. errors involving the wrong drug, wrong dose, wrong patient, wrong time, wrong rate, wrong preparation or wrong route of administration)
• Patient death or serious disability associated with a hemolytic  reaction (abnormal breakdown of red blood cells) due to the administration of ABO/HLA – incompatible blood or blood products
• Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy while being cared for in a healthcare facility
• Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility
• Death or serious disability associated with failure to identify and treat hyperbilirubinemia (condition where there is a high amount of bilirubin in the blood) in newborns
• Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility
• Patient death or serious disability due to spinal manipulative therapy
• Artificial insemination with the wrong donor sperm or wrong egg

Environmental Events

• Patient death or serious disability associated with an electric shock while being cared for in a healthcare facility
• Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances
• Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility
• Patient death or serious disability associated with a fall while being cared for in a healthcare facility
• Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility

Criminal Events

• Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider
• Abduction of a patient of any age
• Sexual assault on a patient within or on the grounds of a healthcare facility
• Death or significant injury of a patient or staff member resulting form a physical assault (i.e., battery) that occurs within or on the grounds of a healthcare facility

Patient Safety: Why does Iowa wish to keep SREs the hosptials dirty little secrets?

Yesterday I promised the list of states that had joined the efforts to avoid SRE’s.  As I said Iowa is not one of those states with mandatory reporting or SRE’s.

Where does your state stand on SRE’s? Is your state included or not included? If not included then why not?

Only 25 states have joined the efforts to make the medical facilities in their states safer by avoiding those practices that make up the SRE list.  Iowa, where I live is not one of them. Today you and I can ponder the difficult question of why our state governments would choose to not be a part of changing your healthcare system to avoid SREs.  One has to wonder if lobbyists associated with hospital and health care systems are doing more harm to this country than any civil lawsuit ever did.

 

Quality and Patient Safety

State adverse event reporting rules and statutes*

Note: States listed here are linked to NASHP's Patient Safety Toolbox and to individual
state profiles of each state's adverse event reporting system

California
Title 22 Division 5 Chapter 1 Article 70737

Colorado              
Colorado Revised Statutes, sec. 25-1-124
The Code of Colorado Regulations, ch. 2, sec. 3.2
State Board of Health, General Licensure Standards

Connecticut        
General Statutes Section19a-127n

Florida                   
Fla. Stat. ch. 395.0197 (2003):  Internal risk management program

Georgia
Georgia Rules 290-9-7-.07

Illinois
Public Act 094-0242

Indiana
Executive order 05-10 
Indiana Department of Health; 410 IAC 15-2.4-2.2

Kansas                 
Kan. Stat. Ann. § 65-4923 (2002)
Kansas Administrative Code, 25-52-1

Maine                   
Me. Rev. Stat. Ann. tit. 22, § 8753 (2003)

Maryland
COMAR 10.07.06

Massachusetts 
105 Code of Massachusetts Regulations 130.331

Minnesota
Minnesota adverse events legislation

New Jersey        
New Jersey Regulations NJAC 8:43G-5.6
www.nj.gov/health/quality/pslaw_chap9.pdf

Nevada
Nevada Revised Statute (NRS) 439.800-890 
Nevada Administrative Code (NAC) 439.900-920
Assembly Bill 59 (AB59)

New York            
New York Public Health Law, sec. 2805(L)
New York Code of Rules and Regulations, Title 10, Section 405.8

Ohio
Ohio Department of Health's reporting requirements for 9 specific services
Revised Code Section 3702.11
Ohio Administrative Code Chapter 3701-84
The rules are available at www.odh.state.oh.us

Oregon
Oregon law to improve patient safety by reducing the risk of adverse events:
Section 9, Chapter 686, Oregon laws 2003

Pennsylvania    
Pa. Stat. Ann. tit. 40, § 1303.308 (2003)
Pa. Stat. Ann. tit. 40, § 1303.313
Medical Care Availability and Reduction of Error Act

Rhode Island     
Rhode Island Statutes, section 23-17-40
Rules and Regulations for Licensing of Hospitals, R23-17-HOSP, please refer to sections 1.41, 1.42 and 34.0

South Carolina  
South Carolina Code of Regulations, Regulation No. 61-16, Sec. 206

South Dakota     
Administrative Rules of South Dakota 44:04:01:07

Tennessee         
Tennessee Rules Chapter 1200-8-1. SB2316

Texas
Tex. Health and Safety Code Sec. 241.201 - 241.210 (2003)
Patient Safety Program and Medical Error Reporting - Final Rules (Amending 25 Texas Administrative Code, Chapter 133)

Utah                    
Utah Division of Administrative Rules, R380-200
Health Care Facility Patient Safety Program Rule R380-210

Washington      
Washington Administrative Code, section 246-320-145

*All rules and statutes refer to mandatory reporting except for Oregon, which established a voluntary reporting system.

Patient Safety: When hospitalized how do you protect yourself from limb amputations?

Here is an interesting story about a woman’s whose claims against the hospital and physicians were found by a jury to have no merit. The jury found no negligence or liability on the part of the medical team that she alleged misdiagnosed her condition, but saved her life, the condition of sepsis resulting in the amputation of her arms and legs.

She is Lisa Strong, 45 years of age who shares custody of a 9-year old son and a 10-year old daughter. Following the amputations her marriage ended.

What was her condition upon admission to the hospital?

According to the South Florida Sun-Sentinel article -”Despite what she told them, doctors misdiagnosed her condition for several hours. She went into septic shock, forcing her immune system to battle infection by protecting the heart and cutting circulation to her limbs. Doctors had to remove them to save Strong's life.”

Did anyone admit liability? [i.e., Did any medical care worker admit to making a mistake?]

“Both sides agreed there was an error made. Where they disagreed was over who, if anyone, was responsible, and whether there was negligence or malpractice.”

So what if anything went wrong?

Apparently upon admission a team of medical personnel examined her, came up with several diagnoses that conflicted to some degree, and no one doctor took over the care. At trial the doctors blamed each other. What appears to have gone wrong for Ms. Strong was no clear channel of authority making medical decisions and forcing the doctors to make the hard decisions.

Is this an unusual case?

I wish I could say it is but it isn’t. Brazilian beauty queen Mariana Bridi da Costa, 20, a Miss World recently died after a similar situation. Like Strong, the doctors thought Bridi had kidney stones; she went into septic shock, followed by leg and hand amputations. But in Ms. Da Costa’s situation she died.

“The Espirito Santo State Health Secretariat said in the statement she died from complications related to a generalised infection, Associated Press has reported.

It was caused by the bacteria Pseudomonas aeruginosa, which is known to be resistant to several kinds of antibiotics.

Bridi had been in the hospital in the city of Serra in south-eastern Brazil since January 3.

She became ill in December and doctors originally diagnosed her with kidney stones, local media said.

Mariana Bridi da Costa had been in a hospital in Serra, in the south-eastern state of Espirito Santo, and on artificial respiration following the procedures, according to several newspapers.”

Brazilian Model Mariana Bridi has hands and feet amputated

UTI leads to septic shock then to multi-system organ failure – original diagnosis “kidney stones”

Playing the finger-pointing-blame-game to create a red herring.

Defense lawyers use a defense that I refer to as the finger-pointing-blame-game to distract the jury. When the defense case seems hopeless, point the finger at each other, argue the entire case and hope the jury thinks the case so complicated that they find the Plaintiff is lucky to be alive. In this case, if it were used, it was done effectively and worked for the defense.

“Lawyers for the defendants said they felt compassion for Strong, but argued that the medical case was more complicated than it first appeared and Strong is lucky to be alive.

"Forty percent of the people who suffer what she did, die," said Jim Nosich, who represented the emergency room physician who first saw Strong. "It was a complex medical issue," said Isabel del Cid, attorney for the doctor who admitted Strong to the hospital.

But the two lawyers clashed, each blaming the other's client for botching the diagnosis. Strong's lawyer has filed a motion for a new trial, with the dispute between del Cid's and Nosich's clients at the center.

One of the doctors "led all of the subsequent physicians down the wrong path with a diagnosis of cholecystitis," a kidney infection, Shipley is asserting.”

The forty-percent die argument is another red herring. Let me explain. I’m not a gambler but had an occasion to visit a casino in St. Louis. On the wall was a sign, “We return 60% of the money gambled as winnings.” Some people look at that sign and understand they have a “good chance of winning”. I looked at it an thought, “Wow, a 40% tax. For every dollar I bet chances are I’ll see less than .60 cents returned.” And so when the defense lawyer points out that 40% of the people who suffer this condition die, he’s just pointing out the negative obvious. It could also be said that 60% of those who enter the hospital with this condition live and had doctors done their job Ms. Strong would not have suffered the fate she did. Apparently in this case the jury didn't think so.

Was this really a complicated medical issue?

Knowing I’ve not read the medical records or the deposition testimony I’m cautious about drawing any firm conclusions, but I doubt it. Medicine always involves complicated diagnosis and decisions concerning treatment. So what’s different about this case? Nothing really. It was an infection. Isn’t that what doctors and hospitals are trained to diagnose and treat? If beyond their experience the doctors needed to call in for a consult with a specialist or two, run more tests and listen to the expert medical doctors. Did they? Can’t tell from the article. What did the E.R. doctors do for the hours that passed between admission and the realization amputations would be necessary? Who did they consult with and what additional tests did they run? What were the findings and follow-up?

What is sepsis?

Sepsis development and progression

Was Lisa Strong misdiagnosed? “This isn’t Kansas.”

10TH LEADING CAUSE OF DEATH IN THE UNITED STATES LARGELY UNK

How do you recognize kidney stones?

Kidney Stones: A Sign of Something Worse? (Dramatic Health) – Joeseph Del Pizzo, M.D.

Dehydration, not enough water and salt and not a sign of underlying kidney disease.

What is really going on here?

Doctors have a tough job. Some days they have a thankless job. I don’t know these doctor who tended to Ms. Strong’s care and yes, they had to make tough calls, but that’s what they get paid so handsomely to do. They are supposed to be the best and brightest of the professions. In the end these types of decisions come with the territory.

So what is the answer?

Well the answer which many of you won’t want to hear is it’s about tort-reform. The cornerstone of tort reform argues unnecessary tests leading to increased costs and too many lawsuits by injured patients. This case is a good example of the kind of health care we can expect in the future from tort reforming measures. A lack of testing, inconclusive diagnoses, bad results and jury’s who don’t care to put in the time to figure out what went wrong and who look for any excuse to find against the Plaintiff. If the tort-deformers get their way people like Ms. Strong won’t even be able to have their day in court. And neither will you. As you’re reading this don’t think your case will be any different than Lisa Strong’s; it won’t.

The old saying what goes around comes around seems only too appropriate in this instance.

Wrong-site or wrong-side Surgery - Rhode Island Hospital makes changes

Rhode Island hospitals after being fined $50,000.00 for three wrong-site surgeries at Rhode Island Hospital over the past several months is creating new procedures designed to prevent the same mistake. No details are presented concerning what those new procedures would be.

Wrong=Site Surgery: Medical issues clearer and benefiting patients and doctors

Medical Malpractice - Iowa Supreme Court allows patients to give the doctor the benefit of the doubt before definitive diagnosis is made.

Iowa Supreme Court Decision – Med. Malp. – Breast Cancer Detection Case Allowed to Proceed

Pamela Rock developed a lump on her breast. She went to the doctor who later diagnosed breast cancer. She alleges malpractice in the detection process and what was told to her about her condition. Allegations are just that and will need to be proven. The District Court and the Iowa Court of Appeals found she filed her case too late; two days late. The Iowa Supreme Court in a decision that backs away from the Court’s latest pronouncements for tort deform held her case could proceed.

“Previously, we held the statute of limitations begins to run as soon as the plaintiff knew or should have known of the physical or mental harm for which damages are sought. Schlote v. Dawson, 676 N.W.2d 187, 194 (Iowa 2004); Langner, 533 N.W.2d at 517. In Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008), we acknowledged our past cases may not have correctly captured the intent of the legislature. Rathje, 745 N.W.2d at 447.”

This is good news for patients and doctors. Patients are given the benefit of the doubt in trusting their doctors and to allow them to do the job they’ve been trained to do. It’s good news for doctors because patients aren’t being forced to second-guess every medical decision and test and to seek second opinions.

“Pamela Rock noticed a lump in her left breast in May 2002. She called Dr. Warhank at the Family Medical Center in Blue Grass to have it examined. Rock was referred to the Center for Breast Health for a bilateral mammogram, which was performed on May 28. Rock had a follow-up appointment with Dr. Warhank on June 3. Dr. Warhank palpated Rock’s left breast and located the lump. Dr. Warhank told Rock the mammogram was normal and not to worry about the lump. Sometime on June 3 or 4, Rock received a call requesting she come in for additional views of her right breast. Rock went to the Center for Breast Health on June 4 and had additional views of the right breast taken. A technician told Rock an ultrasound was not necessary because what was seen in the earlier mammogram was no longer present. Rock reminded the technician she had a lump in her left breast and not her right breast. The technician assured Rock nothing was seen on the earlier mammogram of her left breast so she should not worry about the lump anymore. Dr. Hartung reviewed the radiology report of the right breast and advised Rock in a letter dated June 5 that the additional views of the right breast showed no sign of cancer. In September 2002, Rock was still concerned about the lump in her left breast. She made an appointment with Dr. Kelly at the Family Medical Center. Dr. Kelly told Rock the lump was “probably benign.” Nevertheless, Dr. Kelly recommended a surgical consult and referred Rock to Dr. Congreve. Dr. Congreve performed a fine-needle aspiration on September 25. Two days later, Dr. Congreve called Rock and told her the test was not normal and she needed to have a biopsy of her left breast. On October 8, 2002, Dr. Congreve performed the biopsy and diagnosed Rock with breast cancer.”

Rock filed suit on October 5, 2004. The Iowa Supreme Court held: “Rock could not have known, and should not have known, of her injury and its factual cause until the day she was diagnosed with cancer at the earliest.”

This common sense reasoning respects the various roles of doctor and patient. It allows and encourages the patient to respect the doctor’s every decision before a definitive diagnosis is determined. It also respects the doctor’s decision making process without forcing the patient to second-guess the decision making process and trying to force the medical decision-making process.

PAMELA G. ROCK and

KEITH A. ROCK,

Appellants,

vs.

ROSE WARHANK, BLUE GRASS FAMILY

MEDICAL CENTER a/k/a FAMILY MEDICAL

CENTER OF BLUE GRASS, ROBERT

HARTUNG, CENTER FOR BREAST HEALTH,

and GENESIS MEDICAL CENTER,

No. 05-1753, November 21, 2008.

I’d like to thank Dave Mittleman from Michigan for pointing out the significance of this decision.  Dave has been fighting federal preemption in the Michigan Court system.