Who determines medical tests are “frivolous”?

While we await the scientific answers let’s ask another basic question about you and yours. Should you (and yours) be given lesser medical treatment because you’re not a VIP? THE FACTS: A woman is in a car accident and injures her neck and head. She goes to the hospital where she is examined and released. She’s 46-years-old. The mva occurs at around 11:00 a.m. on a Saturday. The next morning at 8:00 a.m. a friend notices she is unconscious. She is later pronounced dead.

Florida Wrong-side Surgery News

More wrong-site, wrong-side, wrong-patient and wrong-procedure news from around the nation. As the subject is explored and the "time-out" discussed sooner or later these incidents should greatly diminish. At least that's the hope. So button up your lip doc and just do the time-out.

Welding - On-The-Job Welding Injuries

Once again I’m asked a question I find an interesting one about worker’s compensation. In this instance it has to do with a worker from California that welded for a living, now is older and having medical problems. It’s a difficult question to ask because at this point in the man’s life I’m not sure any legal solution will be enough. Perhaps that is why this question needs to be considered; so that younger workers realize the dangers of breathing the fumes from your work as a welder. Question: Can working with welding rods cause strokes, brain damage or other work related medical conditions?

Question: Why do I need a doctor’s opinion, I know how I was hurt.

Answer: In Iowa every workers’ compensation case requires a medical opinion for causation, medical treatment, permanent impairment and restrictions. You know how you got hurt but you’re not qualified to express a medical opinion linking it up to the work environment or accident-mechanism of injury. Of course a single event causing injury, like falling down and breaking your leg is much easier to establish as a work injury than a repetitive injury type of case. In some cases the causing event is so obvious it goes unstated, but that doesn’t mean it’s not required. It’s injuries like carpal tunnel, cubital tunnel, lung injuries, brain damage, head injuries, spinal injuries involving ruptured discs all require a clearly and carefully worded medical opinion as to causation.

How to get paid when horseplay is a part of the history for a workers’ comp injury.

There is a news item out of the Business Insurance site discussing the “horseplay doctrine” in the context of a restaurant worker suffering a shoulder injury caused when he raised his arm for protection from ice being thrown by a co-employee. I actually disagree with the characterization that raising one’s arm can cause this injury. I suspect the waiter or server’s shoulder was injured from a wear and tear injury first caused by lifting heavy bus trays and the raising the arm simply put it over the edge of tearing completely or seriously. It should be noted the server did not win his case because of pre-existing shoulder conditions from previous shoulder dislocations.

What is the average settlement for a workers’ compensation case in Iowa?

This is a question I’m regularly requested to answer. It can’t be answered in fact the question indicates a clear misunderstanding of personal injury claims and the desire to avoid the process of law. Here is how I answered the question. An average settlement for a moderate work related injury is usually a moderate settlement. You can see I'm being intentionally vague. I don't know what you do for a living; how you were hurt and how serious the injury affected your ability to earn a living. That said allow me to use an example and demonstrate how the question is way too vague to answer. If you were a farmer and I asked how long it would take an average farmer with an average tractor to plow an average field the farmer would look at me and say, "Don't lose that day job."

Mill Workers Fall From Crane in Pella

Two men working from a crane on the feed mill last Friday fell from heights. The details are sketchy and only one news item was found. See Two men injured after fall at feed mill in Pella. In other news a South Dakota worker died on a job site in northwest Iowa. The Sioux County Sheriff’s office was noted to have reported the death of Andrew Lambert, 46 of McCook Lake, South Dakota after he became trapped in the auger of some drilling equipment. He died at the job site and worked for Certified Testing Services, Inc. of Sioux City. There is a Siouxland Certified Testing Services, Inc., a testing lab at 419 W 6th Street, Sioux City, Iowa 51103-4332 and phone 712-252-5132.

Playing lawyer - Not telling the doctor it's a work injury - Dah!

Frankly I don't care why you think it's important to not inform the doctor it's a work related injury, by holding back that piece of information you screw up your own case. Top five reasons why people don't tell the doctor: 1. Because then it might not be covered under the BCBS health insurance policy.

Iowa Workers’ Compensation – The Power of the Written Doctor’s Report

Know this: To get work comp benefits you need a doctor’s opinion that you’re injury is work related. That means a doctor has to say your reason for needing medical treatment and care is related to a work event. Get that opinion in writing and it’s like gas in your truck’s tank. If you don’t have a written opinion then the benefit engine won’t turn over.

Is this a work related injury?

I see it time and time again in workers’ compensation cases. The worker is injured, then goes to the doctor and a form is shoved in front of him. Just before going to the company doctor the worker is questioned by the supervisor or the company nurse and is told they aren’t sure this will be considered a work related injury. So the worker now sitting in the doctor’s office has several forms shoved in front of them and the simplest question seems to be difficult to know how to answer.

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, 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.

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.

What questions arise about insurance coverage after a motorcycle accident?

On June 29^th 2009 Daniel Eugene Carson and Jane Ann Carson were involved in a life threatening motorcycle accident in Linn County, Iowa. Mr. Carson veered off the C Avenue extension east of Robins  and both passengers were thrown from the bike as it left the highway and jumped the driveway. Both were flown to University of Iowa Hospital and neither was wearing their helmets.

Questions to be answered:

If they were wearing their helmets would their injuries have been less threatening?

What caused the driver to lose control and veer off of the C Avenue extension?

Was speed involved?

Had the driver been drinking?

Was another vehicle involved?

Is the driver of the motorcycle liable to the passenger for injuries?

Did the driver have insurance?

Did the rider or passenger have auto insurance that will provide coverage?

Did either have health insurance that would pay for the ambulance and hospital bills?

Did the bike’s owner have a medical pay coverage that will pay for medical expenses?

If both types of medical coverage which should pay first to maximize the amount of coverage?

Is there underinsured motorist coverage that could pay for the passenger’s losses?

The list of unanswered questions is endless….

Vets Treated in South Florida VA Hospital and Augusta, Georgia may be exposed to HIV and Hepatitis

If you’ve had a colonoscopy done at the Miami Veterans Affairs Healthcare System, South Florida, then you need to be aware there are concerns the equipment may have been contaminated and you will need to be tested for hepatitis and HIV.  About 6,000 to 10,000 veterans may have been exposed to HIV and hepatitis. The problem had to do with the technicians not following the manufacturer’s recommendation concerning replacing certain parts per procedure.

One Vet tested showed positive results for HIV. The Veterans Dept. would not tell CNN where the patient who tested positive was treated where he contracted the virus.

There was also a contamination problem at Charlie Norwood VA Medical Center in Augusta, GA. Over 1,000 vets were sent warnings and offered free testing for possible infection issues related to the ears, nose and throat clinic.

A video tape is available on the CNN Video site.  Judy

VA looking into possible contamination at medical facilities, CNN report from Miami, FL.

Possible contamination at VA facilities sparks call for inquiry, Veterans Today

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.”

Medical conditions can explain but are seldom an excuse for negligent behavior.

This week we are covering highway accidents and how to look at the issue of negligence. On Monday we covered mistakes in passing on a two-lane undivided roadway; then Tuesday we wrote about heading the wrong-way on a four-lane divided interstate highway and Wednesday we discussed crossing the center line that kills the one main witness who could explain why their vehicle may have come across the center line.

This will be a short blog today. It involves a driver charged with reckless driving that led to the injury of a Wisconsin State Trooper. The accident sequence description is complicated by an alleged thyroid problem on the part of the driver who was charged with attempted murder and five charges of reckless endangerment.  Prior to striking the trooper the driver was traveling in the break down lane and weaving in and out of traffic at speeds estimated to have reached 100 m.p.h. The driver claimed and must have proven to the satisfaction of law enforcement that she had a thyroid problem interfering with her ability to know what she was doing during the events that led to the last crash with a State of Wisconsin Patrol car. The trooper, Ryan Rattunde was investigating an earlier crash and traffic was stopped.

Thyroid problems include hypothyroidism (an under-active thyroid) and hyperthyroidism (overactive thyroid) have different symptoms.

Common symptoms of hypothyroidism include:

• Fatigue or lack of energy
• Weight gain
• Feeling cold
• Dry skin and hair
• Heavy menstrual periods
• Constipation
• Slowed thinking

Common symptoms of hyperthyroidism are:

Doctor David Fitz-Patrick from the Diabetes and Hormone Center of the Pacific has a very clear description that might prove helpful to us. Looking the artist sketches on this endocrinologists website and comparing it with the photograph of the woman charged above, and the symptoms indicate to me she probably was suffering from hyperthyroidism. She’d be lethargic and have weight gain if it were hypothyroidism; but she appears thin and wide eyed in her photograph. Hyperthyroidism symptoms of jitteriness, increased nervousness, and rapid heart beat seem to go along with a sort of manic state.

In this case it helps her from avoiding more severe criminal charges but will it help her with avoiding liability for negligence? Probably not. A person has an obligation to take care of themselves medically and unless she can show this came on suddenly and without warning she’s probably still negligent and her insurance company will have to pay any award or judgment for her negligence and fault. In Iowa the relevant statute is Iowa Code Chapter 668, Liability In Tort – Comparative Fault.

Tort Law—Important Terms to Know

Negligence - The failure of a person to use such care as a reasonably prudent and careful person would use under similar circumstances.

Contributory - Bars a plaintiff with only 1 percent of fault in a negligence action from recovering anything in a tort action.

Comparative - Compares one party's fault to another party's fault in a negligence action allowing partial recovery in a tort action.

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.

Iowa Workers Compensation: The Ames Chamber of Commerce is wrong about doctor choice bill.

The Ames Chamber of Commerce argues that workers getting to choose the treating physician will result in a higher cost for workers compensation and for that reason alone Senate Study Bill 1119 should be rejected. They Chamber is as wrong as wrong can be. I don’t believe that can be true and if it does prove to be true there is an easy solution.

First of all workers need to work or else their jobs will leave and head overseas to China; I think by now they all know this to be true. Second, employers and their insurance carriers spend an inordinate amount of money with case managers and other ancillary semi-professionals attempting to manage the care. End the tug-of-war and let the employees decide who gets to cut on them. It’s the dignified thing to do.  If the employee is choosing the doctor the employer will no longer have to spend the time and money doing this so there should be savings overall.

Lastly, if the costs do for some reasons increase then the employers and insurance carriers have another sensible option; they ca start managing the costs of medical services. There is no one in this business who is managing the medical service providers and what they charge.  Blue Cross and Blue Shield does manage cost for its insured’s so why isn’t someone doing it for the employers. It’s that simple. Stop whining and move on to more important issues.

Iowa Workers Compensation: Which way will the full House vote?

Iowa’s Governor Chet Culver is in favor of the bill before the legislature that would allow injured workers the right to choose their own treating physician. Join us today on The Verdict as we discuss which way the full House will vote on the bill that would allow injured workers the right to choose who treats their injuries.