The Stephen J. Knox Blog

Monday, November 30, 2009

Medical Malpractice Discussion

Medical malpractice
From Wikipedia, the free encyclopedia

The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page.

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.
A doctor would be liable for (depending on the circumstances) such things as prescribing experimental drugs and performing cosmetic surgery.
Contents[hide]
1 The medical malpractice claim
1.1 The party
1.2 Elements of the case
1.3 The trial
1.4 Expert testimony
1.5 Damages
2 Statute of limitations
3 Statistics

[edit] The medical malpractice claim
[edit] The party
The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient's estate.
The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.
[edit] Elements of the case
A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.[1]
A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
A duty was breached: the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur or the thing speaks for itself).
The breach caused an injury: The breach of duty was a proximate cause of the injury.
Damages: Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease.
[edit] The trial
Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and depositions. If both parties agree, the case may be settled pre-trial on negotiated terms. If the parties cannot agree, the case will proceed to trial.
The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible.
The fact-finder will render a verdict for the prevailing party. If the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.
[edit] Expert testimony
Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified "just because somebody with a diploma says it is so" [edit] Damages
The plaintiff's damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.
In one particular circumstance, physicians, particularly psychiatrists are held to a different standard than other defendants in a tort claim. Suicide is legally viewed as an act which terminates a chain of causality. Although the defendant may be held negligent for another's suicide, he /she is not responsible for damages which occur after the act. An exception is made for physicians. Although there exists no protocol or algorithm for predicting suicidality with any level of certainty, courts throughout the United States have found physicians to be negligent. Furthermore, damages are routinely assessed based on losses which would hypothetically accrue after the act of suicide.[5]
[edit] Statute of limitations
Main article: Statute of Limitations
There is only a limited time during which a medical malpractice lawsuit can be filed. These time limits are set by statute in a common law legal system. In civil law systems, similar provisions are usually part of the civil code or criminal code and are often known collectively as "periods of prescription" or "prescriptive periods." The length of the time period and when that period begins vary per jurisdiction and type of malpractice. For a full list of statute of limitations, see the article Medical Malpractice Statutes of Limitation.
[edit] Statistics
Main article: Medical error
A 2004 study of medical malpractice claims in the United States examining primary care malpractice found that though incidence of negligence in hospitals produced a greater proportion of severe outcomes, the total number of errors and deaths due to errors were greater for outpatient settings. No single medical condition was associated with more than five percent of all negligence claims, and one-third of all claims were the result of misdiagnosis.[6]
A recent study by Healthgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.[7] Some researchers questioned the accuracy of the 1999 IOM study, reporting both significant subjectivity in determining which deaths were "avoidable" or due to medical error and an erroneous assumption that 100% of patients would have survived if optimal care had been provided. A 2001 study in JAMA estimated that only 1 in 10,000 patients admitted to the hospital would have lived for 3 months or more had "optimal" care been provided.[8]
A 2006 follow-up to the 1999 Institute of Medicine study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million – and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.[9]
Most (73%) settled malpractice claims involve medical error. A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error "are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant." Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.[10][11]

posted by Steve Knox at 1:10 PM 0 comments

SURGERY MALPRACTICE

Wrong-site surgery results in rare fine
Also must place cameras in operating rooms
Updated: Tuesday, 03 Nov 2009, 1:24 PM ESTPublished : Monday, 02 Nov 2009, 5:13 PM EST
Dan Gouthro
PROVIDENCE, R.I. (WPRI) - The Rhode Island Department of Health has confirmed to Eyewitness News that Rhode Island Hospital is being fined $150,000 for a wrong-site surgery.
During the incident, on October 23, surgeons began to operate on the incorrect finger of a patient. The mistake was discovered and the correct finger was operated on.
On top of the fine, Video cameras must also be installed in the operating rooms.
The Department of Health is also ordering Rhode Island Hospital to assign an observer to supervise all surgeries. The observer will be responsible for ensuring surgeons follow the pre-surgery checklist. That includes taking a "time out" before surgery begins to double check the correct area is being operated on.
The October incident was the fifth wrong-site surgery at Rhode Island Hospital since 2007.
This is only the second time the Department of Health has fined a hospital for a wrong-site surgery. The other fine was also against Rhode Island Hospital.
"Like the Rhode Island Department of Health, we remain committed to decreasing the frequency of medical errors including wrong site surgery. Rhode Island Hospital actively participated in the creation of the statewide uniform protocol and adopted it on July 1," Timothy Babineau, MD, President and Chief Executive Officer of Rhode Island Hospital said in a statement.
"At Rhode Island Hospital, we remain more committed than ever to working on methods to reduce the incidence of all medical errors from reaching patients. Patient safety has always been, and remains, our number one priority," he said.

Labels: wrong-site surgery

posted by Steve Knox at 11:17 AM 0 comments

Wednesday, November 25, 2009

Central Florida Hospitals by County

Labels: hospital, malpractice

posted by Steve Knox at 8:24 AM 0 comments

Car Safety

Top Safety Picks 2010
To determine crashworthiness — how well a vehicle protects its occupants in a crash — the Institute rates vehicles good, acceptable, marginal, or poor based on performance in high-speed front and side crash tests, a rollover test, plus evaluations of seat/head restraints for protection against neck injuries in rear impacts. To earn Top Safety Pick for 2010 a vehicle must have good ratings in all four Institute tests. In addition, the winning vehicles must offer electronic stability control. See past winners

LARGE CARS
Buick LaCrosse
Ford Taurus
Lincoln MKS
Volvo S80

SMALL CARS
Honda Civic4-door models (except Si)with optional ESC
Kia Soul
Nissan Cube
Subaru Impreza(except WRX)
Volkswagen Golf4-door models
MIDSIZE CARS
Audi A3
Chevrolet Malibubuilt after November 2009
Chrysler Sebring4-door models with optional ESC
Dodge Avengerwith optional ESC
Mercedes C class
Subaru Legacy
Subaru Outback
Volkswagen Jetta sedan
Volkswagen Passat sedan
Volvo C30

MIDSIZE SUVs
Dodge Journey
Subaru Tribeca
Volvo XC60
Volvo XC90

SMALL SUVs
Honda Element
Jeep Patriotwith optional side torso airbags
Subaru Forester
Volkswagen Tiguan

Labels: auto accident

posted by Steve Knox at 7:51 AM 0 comments

Tuesday, November 24, 2009

Wrongful Death

Florida Malpractice Lawsuit Results in $4M Verdict for Death After Childbirth

Published: October 26th, 2009 • One Comment

The family of a woman who died after childbirth was awarded $4.25 million earlier this month by an Okaloosa County jury in a Florida medical malpractice lawsuit.
The wrongful death lawsuit was brought in state court against physicians at Fort Walton Beach Medical Center by relatives of Wendy Leigh Jackson, who died in June 2003 of a ruptured artery due to a renal aneurism.
Jackson’s death occurred just 16 hours after giving birth to her son at the hospital. According to the malpractice lawsuit, doctors Wyndal K. Blankenship, Barry Riggs and Saad Rahman were aware that an ultrasound showed Jackson was bleeding near her kidneys. However, appropriate action was not taken until it was too late.
The hospital itself was not named as a defendant in the lawsuit. According to the Northwest Florida Daily News, the jury found Blankenship and Rahman liable, but cleared Riggs. Rahman was found to be 65% responsible, and Blankenship 35% responsible.
Attorneys for the defendants argued that Jackson was partially responsible due to her own contributory negligence, but that argument was rejected by the jury.
The jury awarded Jackson’s son $1.7 million for pain and suffering, and $185,000 for loss of support and services. The jury also awarded her husband, Richard Jackson, $1.8 million for pain and suffering and $565,000 for loss of support and services.

Labels: medical malpractice

posted by Steve Knox at 1:48 PM 0 comments

Amputation Malpractice

Court Calls $8-a-Day Med-Mal Award for Amputee a 'Miscarriage of Justice'
Mary Pat Gallagher
New Jersey Law Journal
August 25, 2008
In an unusual if not unprecedented parsing of a medical malpractice verdict, a New Jersey state appeals court held Tuesday that a $100,000 award for pain and suffering was too low because it amounted to $8 a day for the rest of the plaintiff's life.The Appellate Division ordered a new trial on the $100,000, finding it "grossly insufficient and a miscarriage of justice," but left in place the liability verdict and $800,000 in economic damages.Another trial is needed because "a recalculation of damages based upon the trial transcripts without having the opportunity to observe the witnesses would be a further miscarriage of justice," the court held in Walsh v. Disciglio, A-0185-07.Maureen Walsh saw a succession of doctors starting in 1995 for circulatory problems in her toes. By the time she met with vascular surgeon George Constantinopoulos in early 1998, she was in severe pain. He recommended an arteriogram, saying it should be done promptly but that another doctor should arrange it because he was not in her health plan.Walsh had the test 15 days later and was told she needed surgery. A subsequent bypass operation showed that amputation might be necessary.Walsh had a total of seven surgeries, three for amputation after gangrene set in. First she lost her foot, then part of her leg and finally, in 1998, most of her leg as the gangrene advanced upward and her leg began to turn colors. She was 50 at the time, and federal government estimates give a woman of that age a life expectancy of 32.5 years.The jury reached its combined $900,000 verdict in 2007, including $100,000 for pain and suffering, and finding Constantinopoulos 10 percent at fault.

Labels: amputation malpractice

posted by Steve Knox at 1:02 PM 0 comments

Medical Malpractice Verdict

All Children's loses $11.1 million lawsuit

By Curtis Krueger, Times Staff Writer Published Friday, October 23, 2009
ST. PETERSBURG — Sabrina Smith is the mother of a 9-year-old boy, but he's not like other kids his age.
He needs help getting dressed in the morning. He's two grades behind in school and still learning ABCs. He will probably never graduate from high school or support himself with a job.
The reason, Smith and her attorneys say, is brain damage that her son suffered after receiving improper care at All Children's Hospital one night in August 2000.
This week a jury agreed by delivering an $11.1 million verdict in a medical malpractice case that could cost the hospital up to $8.7 million.
"I was very thankful," said Smith, 26, who now lives in Hollywood. "Because now my son, Daniel … (can) get the help that he needs."
But only if the verdict survives. All Children's says it did care for Daniel properly and plans to appeal.
"Though his current condition is unfortunate, we maintain that the care he was given in our Emergency Center in August 2000 was appropriate," the hospital said Friday in a prepared statement, which also expressed concern for the boy and his family.
"We believe that fundamental errors were made which influenced this verdict — errors that can be only corrected by an appellate court," the hospital said in the statement.
All Children's also pointed out that the hospital "was found only partially responsible."
The verdict came after the jury deliberated three full days, an unusually long time. Smith's attorney said that in 37 years of practicing law, the longest deliberations he had seen previously were six hours.
At the time of the 2000 incident, Smith said, she was a young mother living in a St. Petersburg home called Alpha House. Daniel, then 3 months old, had been sick for days with vomiting and diarrhea, so she took him to the hospital.
She says they stayed there for about 4 1/2 hours, when she then was told he was fine to bring home.
"I went home happy and content that my son was going to be all right," said Smith.
But the next morning he could barely breathe, and had to be rushed back to All Children's. By that time, "he suffered from irreversible brain injury," said another of her attorneys. During the first hospital visit, the medical staff did not properly check to see if Daniel was dehydrated and did not follow proper procedures to treat him for dehydration, Leto said.
After three weeks of trial, the jury found the hospital to be 60 percent at fault for the boy's condition. A doctor, Diane Bourlier, was considered 40 percent responsible. She settled out of court for an undisclosed amount, Leto said. She could not be reached late Friday.
Attorneys said All Children's could be responsible for $6.7 million to $8.7 million of the verdict, and most of the money is to be used for the boy's future care. A formal amount will be entered later.
Smith said she knows the hospital plans to appeal, but she is optimistic that she will prevail again. However, she said she has not been able to explain any of this to her son.
"He doesn't understand," she said. "He does not understand at all."

Labels: pediatric malpractice

posted by Steve Knox at 11:12 AM 0 comments

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