Birmingham Personal Injury Lawyer - Medical Malpractice

Tips to Prevent Medical Errors

Jan Boswell — Wed, 11 Nov 2009 09:22:02 GMT

This blog is written in response to the blog, 98,000 Reasons to Care about Patient Safety, by Jane Ayre at InjuryBoard.com. This is the number of Americans who die from medical errors each year. As a nurse, I know that patient safety is a concept that is foremost in the minds of healthcare providers, administration, and regulatory agencies. How can you, the consumer, help prevent medical errors ? In this blog, I will outline tips to help the consumer prevent other medical errors.

1. Be an active part of your healthcare team. Ask questions not just in the hospital but anywhere you receive healthcare. If you don’t understand something, ask for clarification.
2. If you have a choice, choose a hospital at which many patients have had the procedure and surgery you need and have had good results.
3. When choosing a specialist, ask your own physician for a personal recommendation. I have been known to ask my primary doctor: “If this were your wife, who would you send her to for this condition?”
4. Ask all healthcare workers who have direct contact with you whether they have washed their hands. Adequate hand washing is a primary way to prevent infection.
5. Before you leave the doctor’s office or hospital, make sure you understand the treatment plan. This includes understanding about your medications, follow-up care, and when to contact the doctor.
6. Before you leave the hospital, make sure you understand when you can resume regular activities. Make sure your doctor understands your regular activity level. You should know when you can shower, take a tub bath, lift 5 lbs, return to work, etc.
7. If you are having surgery, make sure that you, your doctor, and your surgeon all agree on what exactly will be done. For example, if you are having surgery on your right arm, make sure all involved knows it is the right arm. Make sure the site is marked before surgery.
8. Make sure someone is in charge of your care. This could be your personal physician. You need a point person to direct your care.
9. Make sure that all health care professionals involve in your care has your important health information. I love patients who come in with a written history. It is important that healthcare professional know your allergies, past surgeries, past and current medical conditions, etc.
10. Have a family member or friend designated as your advocate. Ask that person today. Make sure they know your medical history and your preferences in regards to medical care.
11. Before a test or treatment, ask why it is needed and how it can help you. Be informed before you consent.
12. If you have a test, follow-up and get the results.
13. Learn about your condition and treatments. If you use the Internet, use reliable sources. Treatment recommendations based on the latest scientific evidence are available from the National Guidelines Clearinghouse at http://www.guideline.gov. One of my favorites is www.mayoclinic.com.
You can visit my previous blogs on detail ways to prevent medication errors. I have outlined below the top 6 tips:
1. Make sure all healthcare professionals involved in your care know everything you are taking. This includes over-the counter medications, vitamins, herbs, and dietary supplements. Review these with your doctors once a year.
2. Make sure all healthcare professionals involved in your care know about any allergies and adverse reactions you have had to any medications.
3. When you get a new prescription from your doctor, make sure you can read it.
4. Understand your medications. What is it for? How is it to be taken and for how long? What are the side effects? Can I take it with other medications? What should I avoid while taking this medication?
5. Ask the pharmacist if you have any questions about the directions on your medication labels.
6. Ask for written information about the side effects.

Be involved in your care. Ask questions until you understand. Never consent to a test, surgery, or procedure until you are informed. Do not feel like a nuisance, you are standing up for your right to safe medicine that is appropriate for you and your condition. Your diligence could save your life. Share this with your family and friends.

Adapted from Agency for Healthcare Research and Quality

Originally posted at InjuryBoard by Jan Boswell

How does the Wound Ostomy and Continent Nurses Society Position Paper on Avoidable versus Unavoidable Pressure Ulcers impact pressure ulcer malpractice cases?

Jan Boswell — Tue, 11 Aug 2009 12:33:09 GMT

A recent position paper by the Wound Ostomy and Continence Nurses Society discussed avoidable versus unavoidable pressure ulcers. The paper concluded that there are clinical circumstances in which a pressure ulcer is unavoidable. The rationale behind this statement was that pressure ulcer formation is a complex process that may not be halted, even with excellent multidisciplinary care. Further, the skin is the largest organ in the body and its integrity is dependent upon the function of all other organs systems for nutrition, circulation, and immune function. Often the disease process can overwhelm the skin and interrupt nutrition, circulation, and immune functions to the skin. The statement of position states that it is the responsibility of the healthcare facility to adopt best practices aimed at pressure ulcer prevention. The rationale for this is that there are increasing reports of success in reducing the prevalence and incidence of pressure ulcers by implementing evidence-based clinical practice guidelines.

The following are the definition of avoidable and unavoidable pressure ulcers from the Centers of Medicare and Medicaid:

· Avoidable Pressure Ulcer: Avoidable means that the resident developed a pressure ulcer and that the facility did not do one or the more of the following: evaluate the resident’s clinical condition and pressure ulcer risk factors; define and implement interventions that are consistent with residents needs, resident goals, and recognized standards of practice; monitor and evaluate the impact of the intervention; or revise the intervention as appropriate. (483.25c/TagF314).
· Unavoidable Pressure Ulcer : Unavoidable means that the resident developed a pressure ulcer even though the facility had evaluated the resident’s clinical condition and pressure ulcer risk factors; defined and implemented interventions that are consistent with resident needs, goals, and recognized standards of practice; monitor and evaluated the impact of the interventions; and revised the approaches as appropriate. (483.25c/TageF314)

So how does this position paper impact pressure ulcer malpractice cases?

· One of the recommendations of the position statement is accurate documentation of preventive measures targeted at the reduction of risk. Also, the clinical reasons why prevention interventions are not appropriate or feasible should be documented. If the pressure ulcer is determined to be unavoidable, the rationale must be evident.
· So in screening your pressure ulcer cases pay close attention to the documentation. A risk assessment tool should be done upon admission. Many hospitals have in their policies that skin assessment along with a risk assessment should be done daily. Most nursing homes do weekly skin audits. The skin should be consistently assess and the results of this assessment should be well documented.

· If the patient’s score on the skin risk assessment puts them at risk for pressure ulcer, a pressure ulcer prevent protocol should be started. This should be documented on the chart.

· In screening your case, see if these protocols were followed. Was the patient turned every 2 hours? Were pressure relieving devices used? Was nutrition consulted? Was preventive skin care initiated?
· If a pressure ulcer did develop, was it adequately treated and monitored? Pressure ulcers should be re-assessed weekly to assess if treatment is working effectively. If not, was a new skin care regimen ordered?
· Was the pressure ulcer assessed weekly as to size, characteristics, odor, etc.?
· Were lab values related to nutrition and infection being monitored? If these lab values were outside of normal limits, were the appropriate medical professionals notified? Was the problem adequately addressed?
· If the pressure ulcer was malodorous or had an exudate, was the wound cultured?
· If the pressure ulcer developed past a Stage I, was a wound care nurse consulted?

In the end, these cases come down to assessment and documentation. The position paper cannot be used as an excuse for pressure ulcers to develop. Most pressure ulcers can be prevented with good, effective, and early interventions.

Originally posted at InjuryBoard by Jan Boswell

Hospital Errors - Is I'm Sorry Enough?

Jon Lewis — Mon, 27 Jul 2009 21:32:53 GMT

For years, we have received calls about potential medical malpractice claims. Many times, the potential client is only complaining about poor bedside manner. Had the doctor or nurse simply said, "I'm sorry" to the patient or to the patient's family, we would have never received a call. Of course, these individuals never have a claim anyway because of the intricacies of medical malpractice claims in Alabama.

In a recent Associated Press article from David Goodman, the doctors at the University of Michigan Health System have adopted the policy of apologizing to patients for errors at the hospital. According to the article, these doctors are admitting mistakes upfront, and in many of the cases, they are paying compensation before being sued. What is the result? Malpractice claims fell from 121 in 2001 to 61 in 2006. Open claims fell from 262 in 2001 to 83 in 2007. They cut costs per claims in half, and they dropped their reserves by two-thirds.

Patients want honesty. They want sincerity. They want the truth. Isn't that what everyone wants? Patients go to doctors and hospitals to receive medical care. Patients know that medicine is not an exact science. They know that mistakes happen which is why many juries rule in favor of hospitals and physicians in Alabama, at least. That's why patients can accept apologies. They can accept mistakes. Even if it involves a loved one and a death, I believe patients can understand if the doctor, nurse, or hospital administrators sit down with the family and patient and explain what happened.

If I made a mistake as a doctor, I don't think I could live with myself if I hid that from the patient or their family. I would want the family to be compensated for the error. That's what malpractice insurance is for.

This is what the new internet and social media are all about. Transparency. Everyone wants to know the truth about everything. Do certain doctors make more mistakes than others? Hospitals? Now, with Twitter and Facebook and other social media outlets, you can begin to find this information. It's also immediate.

Everyone wants the truth. That's what the legal system is for. Searching for Justice. Searching for the truth.

Originally posted at InjuryBoard by Jon Lewis

Medical Malpractice - Quality Assurance

Jon Lewis — Fri, 27 Jun 2008 09:00:00 GMT

On Monday, a potential client's wife called about a medical malpractice case. I told her we would need to review the medical records in order to evaluate the case. We discussed this a bit further, and we both agreed that it would be better if she or her husband attempted to obtain the records instead of us.

Today, her husband called and said he could not get the records. He said he spoke to someone in client services at the hospital, and she said he could not get his own records. I was somewhat in disbelief because a patient is entitled to his medical records. However, I had a feeling that he misunderstood so I asked him to give me the person's name and number so I could call and confirm what I was thinking.

I did call the woman at the hospital, and my suspicions were confirmed. He had not been speaking with someone in client services. He had been speaking to a risk manager, and she did not refuse to allow him to get his medical records. She refused to allow him to obtain the incident/investigative report regarding his incident. At that point, I let her know that we knew we couldn't have that information, but that we did want the medical records. I then called the client and explained the situation to him.

Why couldn't we get the incident/investigative report? Well, such a report constitutes what is called a "quality assurance" document. What does that mean? It means that the record is confidential, and it is not discoverable or admissible in court. Hospitals and doctors don't have to give incident and investigative reports to patients or their attorneys as long as they meet the definition of a "quality assurance" document. Here is the statute which governs the confidentiality of these records:

Section 22-21-8

Confidentiality of accreditation, quality assurance credentialling materials, etc.

(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.

(b) All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation, quality assurance or similar materials nor should any person involved in preparation, evaluation, or review of such materials be prevented from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation, or review of accreditation, quality assurance or similar materials.

(Acts 1981, No. 81-801, p. 1409.)

Is this fair? Is it right? Does it make sense? Not to me. If someone is injured or killed in a hospital or by a doctor, and that institution conducts its own investigation and determines that it's employees caused the injury or death, shouldn't that be discoverable by the injured party or his family? Shouldn't that information be admissible in court? Isn't that relevant? How many cases have gone to trial where the hospital or doctor won the trial when their own investigation determined they were at fault? We will never know because of the provision above.

It may be argued that eliminating this quality assurance confidentiality provision will lead to no investigations into such incidents. If that's the case, why not pass a law which requires such an investigation? Why make such important information confidential? It makes no sense unless you realize that the medical community lobbied for such a provision which makes pursuing a medical malpractice case much more difficult.

Originally posted at InjuryBoard by Jon Lewis

Medical Malpractice - Why do Doctors Worry?

Jon Lewis — Thu, 26 Jun 2008 09:00:00 GMT

Doctors I meet always discuss the malpractice problem. They seem to worry about lawsuits to an incredible degree. Yet, the statistics show that doctors and hospitals win an overwhelming majority of the cases in Alabama. When they express these feelings to me, I tell the doctors, "You need to raise your deductible as high as you can possibly raise it because the chances of a settlement or verdict against you is minimal."

Why, you might ask? Well, medical malpractice cases are difficult everywhere, but in Alabama, we have the Medical Liability Act (§§ 6-5-480 and 6-5-540 of the Code of Alabama) which provides great protection for the medical community. From a plaintiff's perspective, it's like going to Las Vegas and playing against the casino with loaded dice in the casino's favor - virtually impossible. In fact, going to Las Vegas would probably be more fun.

What makes this law so hard for injured victims and the families of injured victims? First, the law requires the plaintiff to prove that the doctor, hospital, nurse, or other healthcare provider "breached the standard of care" for those healthcare providers in the same area of practice. This is more than a simple negligence standard. This standard requires the plaintiff to have a "similarly situated" expert testify against the defending healthcare provider. For example, if the accused physician is a board certified obstetrician, the plaintiff must have a board certified obstetrician testify that the accused physician breached the standard of care for board certified obstetricians in the community.

Hiring such experts gets expensive. Consequently, the client must have such injuries that would warrant the expense of hiring such an expert. Otherwise, trying the case to a jury would be futile because the injured party would not receive compensation after the attorney earns a fee and is reimbursed for his expenses. Furthermore, it is extremely difficult to find an expert within the State of Alabama. Consequently, most experts are from outside the State, and the defendant usually has several experts from within Alabama to testify on his behalf. Given our well-renown healthcare facilities in Alabama, the jury is left to wonder why the plaintiff had to hire an expert from outside the state.

In addition to the above, the Act prevents the victim, or the victim's family, from conducting proper discovery. The Act provides the following:

§ 6-5-551 - . . . Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.

If a doctor has left a sponge in someone after surgery on ten occasions prior to the incident complained of, those ten (10) incidents are not discoverable from the doctor. If this information can be obtained from an independent third party, you can discover it, but good luck getting that information before the jury.

If you get beyond these hurdles, you still must prove that the doctor's breach of the standard of care actually caused the injury or death alleged. Sometimes, doctors do breach the standard of care, but notwithstanding that breach, the injury was caused by some other factor. For instance, a doctor may have failed to administer the proper antibiotic, but the patient dies as a result of a heart condition. The failure to give the proper antibiotic did not cause the death.

Finally, medicine is not an exact science, and there are hazards of surgery. Surgery is risky, and bad things can happen during surgery. The doctor obviously would not wish these things to happen, and they cannot be punished for every bad result. However, there are times where they need to be held accountable. Juries are loathe to do this. The jury is not told whether a doctor has insurance, and they are left to wonder whether or not the doctor and his family will be forever punished as a result of a verdict. What juries need to understand is that doctors have malpractice coverage, and if they don't it's because they are unable to obtain coverage. There are VERY few doctors who can obtain malpractice insurance and don't get it.

Clients call or e-mail every day about a potential medical malpractice case. Most of these potential cases are not cases. Most doctors are competent professionals and do the right thing, but there are some out there who don't, and the way the system is set up, those doctors are protected. This should not be the case. When healthcare professionals do not take proper precautions to protect patients, they should be held accountable. Otherwise, we should just give the healthcare profession total immunity, and not even worry about these issues. What would the insurance industry say about that?

Originally posted at InjuryBoard by Jon Lewis

Doctors are the Third Leading Cause of Death in the U.S. according to JAMA Article

Tedford Taylor — Thu, 24 May 2007 17:45:48 GMT

Liability reform to stop medical malpractice junk lawsuits, the subject of a Courier-Journal opinion piece, fell on deaf ears last week in light of an article printed in the Journal of the American Medical Association which reports doctors are the third leading cause of death in the United States, accounting for more than 250,000 deaths annually. This flies in the face of the myth that tort reform in necessary to lower health costs.

By the numbers:
-12,000 people are killed each year by undergoing unecessary surgery
-7,000 folks die due to medication errors
-20,000 die as a result of other errors in hosiptals
-infections in hospitals account for another 80,000 deaths, and
-106,000 death occur as a result of non-error, negative effects of drugs.

Another analysis concluded that between 4% and 18% of patients experience negative effects in outpatient settings.

Consider the following statistics:
-116 million extra physician visits
-77 million extra prescriptions
-17 million emergency department visits
-8 million hospitalizations
-3 million long-term admissions
-199,000 additional deaths
-$77 billion in extra costs

Other studies indicate that as many as 20% to 30% of patients receive inappropriate care. Unbelievably, an estimated 44,000 to 98,000 among them die each year as a result of medical errors.

Originally posted at InjuryBoard by Tedford Taylor

Doctor must Pay $9M for Patient Death

Christina Cole — Wed, 13 Dec 2006 01:33:03 GMT

A Miami-Dade Circuit Court jury has held a Miami Doctor liable for $9 million dollars in damages in the death of a patient. The case involves Dr. Carmel Barrau. Jessie Sturdivant was his patient in 1999.

On Thursday, Jay Cohen, of the Miami firm of Grossman and Roth won the judgment on behalf of Sturdivant's wife. The attorney said his next step is to file a bad faith claim against Barrau's medical malpractice insurance carrier, Pronational Insurance, to try and get them to pay the entire claim.

Both Cohen and Pronational rejected an offer to settle within policy limits.

The case arose because Jessie Sturdivant suffered an aneurysm and Barrau admitted him to Parkway Regional. After a disagreement with another physician, Barrau stopped acting as coordinator for Sturdivant's care and stopped checking on the patient, the complaint said. Sturdivant fell into a coma and died.
Although current law limits non-economic damages in medical malpractice cases to $500,000 in most instances, the Sturdivant case was filed prior to the 2003 cap.

Originally posted at InjuryBoard by Christina Cole