Kentucky Injury Law Blog

Medical Malpractice News: Lawyers for the family of actor John Ritter will proceed to trial today in their claim that his death could have been prevented. Learn more about the case: LA Times NBC Today Show Interview with John Ritter's widow

Make no mistake about it, aortic dissection is a dire emergency requiring immediate medical intervention.

In the Kentucky medical malpractice cases involving failure to diagnose aortic dissection cases I have handled, one of the key issues is the time between the failure to diagnose and the death of the victim. In other words, was there enough time to make a difference? Based on conversations I have had with experts on the subject, cardiologists and thoracic surgeons, if the misdiagnosis and the death are more than an hour or two apart, it is virtually certain that there was enough time to treat the condition appropriately and prevent the patient from dying.

I assume this will be one of the key issues in the Ritter case.

Amy Yasbeck, widow of actor John Ritter, does a fantastic job in her interview on NBC's Today Show. It sickens me every time I hear a reporter talk about a "$5 Million Dollar" lawsuit, or that a victim is seeking "$70 Million Dollars". Ms. Yasbeck clearly explains what Kentucky injury lawyers know, that she is not seeking "$67 MIllion Dollars".

Watch the video.

In a fascinating change of policy, Medicare announced last week that it will not cover medical care for injuries resulting from medical errors. In other words, medical malpractice. This raises a host of serious questions for doctors, hospitals, injured patients and their lawyers. Will Kentucky medical malpractice attorneys be able to use this to their client's advantage? Or will it complicate matters?

Download the Centers for Medicare and Medicaid Services press release or visit the website for more information.

New York Times Article

Medicare Says It Won’t Cover Hospital Errors

By ROBERT PEAR
Published: August 19, 2007

WASHINGTON, Aug. 18 — In a significant policy change, Bush administration officials say that Medicare will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals, a move they say could save lives and millions of dollars.
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Eileen O’Neill-Pardo’s mother, Margaret, died after an infection developed at a hospital.

Private insurers are considering similar changes, which they said could multiply the savings and benefits for patients.

Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain “conditions that could reasonably have been prevented.”

Among the conditions that will be affected are bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder.

In addition, Medicare says it will not pay for the treatment of “serious preventable events” like leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.

“If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,” said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.

The new policy — one of several federal initiatives to improve care purchased by Medicare, at a cost of more than $400 billion a year — is sending ripples through the health industry.

Yet another study shows what Kentucky Malpractice Lawyers have been saying for years:  it is the insurance industry, not lawyers or lawsuits that are responsibile for the high premiums doctors pay for medical malpractice coverage.

The report, compiled and authored by Jay Angoff (former Missouri Insurance Commissioner), surveyed annual reports from 15 medical malpractice insurers.  Agnoff’s conclusion is that insurers raised MDs’ premiums without reason and have perpetrated a lie by claiming that a so-called “malpractice crisis” exists.

For a copy of the report “No Basis for High Insurance Rates: An Analysis of the 15 Largest Medical Malpractice Insurers 2006 Financial Statements”, visit www.justice.org/pressroom/angoff

Everyone makes mistakes. Even doctors. But you rarely hear a doctor admit she made a mistake. In my years representing Kentucky medical malpractice victims, I have never once heard a doctor admit their error caused a patient harm. In his new book, Dr. Atul Gawande says just that. Gawande, a surgeon whose bestselling book inspired the hit TV series Grey's Anatomy, takes a refreshingly candid look at the medical profession and the havoc medical errors can cause.

Here, he discusses a surgical error:

Six months ago, I was performing a thyroid operation on a teacher my age and damaged a nerve that led to her vocal cords. This woman can no longer talk and has had to give up work. The only way I can live with myself is to try to do all I can for her and understand what I did wrong and do better next time. Being sorry is not enough.

The Guardian has an interesting article on Gawande and the book. An interesting read.

I've handled medical malpractice wrongful death lawsuits all over Kentucky. But never one for an elective cosmetic surgery. I've always wondered how jurors would react to the obvious defense theme that the deceased put their own life at risk for vanity's sake. That would definitely be something to explore in a focus group.

New York lawyer Tom Moore apparently knows the answer to that question. I have seen Tom Moore speak at seminars on numerous occasions. I have watched trial tapes from a few of his trials. He is as passionate a lawyer as I have ever run across. Anyone who has seen him in action will agree. It comes as no surprise that he settled a case this week in excess of $3 million dollars involving a woman who died during a facelift.

But wait! There is a twist. The surviving husband is a physician. I have to wonder what his stance on tort reform was prior to this tragedy. Reminds me of Senator Robert Smith of New Hampshire and "friend of the people" Rick Santorum, whose wife filed a medical malpractice suit in 1999 for over $500,000.

Can you say Hypocrite?

Doctors Attempt 'No Sue by Steven Klearman

Citing the high cost of medical malpractice insurance, more than a dozen ob-gyns have joined Obstetricians & Gynecologists Risk Retention Group of America (OGRRGA), a new Montana-based company that is reportedly reducing their premiums by about 50 percent. As part of their participation in the group, these physicians are requiring patients to sign agreements stating that they will pursue any subsequent disputes through binding arbitration.

They also must agree that pain-and-suffering awards will be capped at $250,000.

Let there be no mistake. Joe White and Mike O'Connell are excellent personal injury lawyers. That's why I was shocked when I read Jewish Hospital's allegations in the paper the other day. I could not imagine that these two of the most experienced, principled Kentucky medical malpractice lawyers would run off and file dozens of lawsuits without basis in the form of expert opinion.

Turns out my skepticism was well-founded. White and O'Connell had numerous witnesses come forward, including former employees of Jewish Hospital, to describe the deplorable conditions at the hospital.

Lawsuits vs. Jewish Hospital defended

“And the hospital's lawyers said in interviews yesterday they were disappointed that White and O'Connell are trying to re-litigate the underlying cases, which they have already lost.”

I bet they are.

Steve Frederick

Any Kentucky Medical Malpractice Attorney knows that lawsuits are not to blame for the rapid rise of malpractice premiums. OB/GYNs want to blame cerebral palsy lawyers. Thanks to Americans for Insurance Reform, we have data to refute their claims.

 

Thanks to my good friend Hans Poppe for finding this article.  No surprise here, jury verdicts DON’T drive premiums up.

 

New study in Illinois malpractice debate
By Adam Jadhav
ST. LOUIS POST-DISPATCH
03/29/2007

An umbrella activist group calling for insurance reform released a study Wednesday in an attempt to refute the claim that out-of-control litigation prompted medical malpractice insurance rates to skyrocket in recent years.

Americans for Insurance Reform says annual insurance industry numbers show that the amount of money paid for medical malpractice settlements, verdicts and legal defense has remained relatively flat for almost two decades, when adjusted for inflation and accounting for the growing number of doctors nationally.

According to the study — which based its findings on information from A.M. Best & Co., an insurance industry analyst firm — the total amount of money paid was almost $4.9 billion in 2005 nationally. The study calculated that to be a payout of $5,400 dollars per doctor, the lowest since 1981 when adjusted for inflation.

The study's author, a former government official, said those numbers indicate that the rising insurance rates that drove doctors to leave Madison and St. Clair counties can't be the result of the active trial bars of the Metro East area. Instead, market-related forces — poor performance in investment bonds — and bad insurance company management are to blame, said J. Robert Hunter, a former federal insurance administrator during President Gerald Ford's administration. He is now with the Consumer Federation of America.

STLtoday - News - Illinois News.

Senator Arlen Spector has introduced two pieces of legislation which evidence his understanding of potentially unreasonable tax consequences involved in personal injury litigation.

The first would prevent lawyers from paying tax on the money they receive as reimbursement of expenses, the second alleviates a plaintiff’s potential tax liability for income he never receives.

Read more about these pieces of legislation here.

(credit John Day of www.dayontorts.com for posting this on his blog)

State inspections on 'honor system'
By R. G. Dunlopand, Peter Smith
The Courier-Journal

Gaps in federal and state regulations could be putting bus passengers at risk.

Although buses are required by state and federal law to undergo annual inspections, for instance, no proof of inspection is required at registration, The Courier-Journal has found.

And it was a Louisville church bus with no record of ever being inspected that was responsible for sickening half a dozen children earlier this month. Emergency workers said the children suffered symptoms consistent with carbon-monoxide poisoning.

In addition, neither the state nor the federal government tracks the number of privately owned buses in Kentucky that need inspections or whether they are being inspected, the paper found.

The result is that a bus that does not undergo an inspection or fails is unlikely to be caught unless it has a chance roadside encounter with law enforcement, a random safety audit or a complaint.

"As far as state inspection is concerned, it's basically an honor system," said Maj. Glynn Powers of the Kentucky Department of Vehicle Enforcement. "We can't go behind these vehicles to make sure they got the inspection done. There's a whole lot more buses than there are of us."

READ THE REST OF THIS ARTICLE

Additional resources:

• Judge orders church not to alter bus until investigators check it [7.20.06]
• Church's use of bus investigated [7.19.06]
• Lax again on bus safety [7.16.06]
• 1st on bus to fall ill just start of woes [7.16.06]
• Church's bus fleet overdue for inspection [7.14.06]
• Bus with sick kids had safety violations [7.13.06]
• 7 children on church bus fall ill during trip [7.11.06]

Following is an outstanding synopsis of the truth about medical malpractice.  If you have not read “The Medical Malpractice Myth” and the studies referenced in this article, I highly recommend you do so soon.

The Medical Malpractice Myth
Forget tort reform. The Democrats have a better diagnosis.
By Ezra Klein

The Republican answer to runaway health-care spending is to cap jury awards in medical malpractice suits. For the fifth time in four years, Senate Majority Leader Bill Frist tried and failed to cap awards at $250,000 during his self-proclaimed "Health Care Week" in May. But this time, the Democrats put a better idea on the table.

Sens. Hillary Clinton and Barack Obama also want to save on health care. But rather than capping jury awards, they hope to cut the number of medical malpractice cases by reducing medical errors, as they explain in an article in the New England Journal of Medicine. In other words, to the Republicans, suits and payouts are the ill. To the Democrats, the problem is a slew of medical injuries of which the suits are a symptom. The latest evidence shows the Democrats' diagnosis to be right.

The best attempt to synthesize the academic literature on medical malpractice is Tom Baker's The Medical Malpractice Myth, published last November. Baker, a law professor at the University of Connecticut who studies insurance, argues that the hype about medical malpractice suits is "urban legend mixed with the occasional true story, supported by selective references to academic studies." After all, including legal fees, insurance costs, and payouts, the cost of the suits comes to less than one-half of 1 percent of health-care spending. If anything, there are fewer lawsuits than would be expected, and far more injuries than we usually imagine.
Click Here!

As proof, Baker marshals an overwhelming array of research. The most impressive and comprehensive study is by the Harvard Medical Practice released in 1990. The Harvard researchers took a huge sample of 31,000 medical records, dating from the mid-1980s, and had them evaluated by practicing doctors and nurses, the professionals most likely to be sympathetic to the demands of the doctor's office and operating room. The records went through multiple rounds of evaluation, and a finding of negligence was made only if two doctors, working independently, separately reached that conclusion. Even with this conservative methodology, the study found that doctors were injuring one out of every 25 patients—and that only 4 percent of these injured patients sued.

READ THE ENTIRE ARTICLE:

The Medical Malpractice Myth - Forget tort reform. The Democrats have a better diagnosis. By Ezra Klein.

Today, the Tennessee Supreme Court ruled that ex parte communications between defense counsel and a plaintiff's non-party physician are not allowed.

Click here to read the entire opinion.

The Court ruled that these sort of communications violate the implied covenant of confidentiality between physicians and patients. This only makes sense because this is some of the most sensitive information about a person. Moreover, the information can be obtained through formal discovery.

Thanks to The Duncan Law Firm for bringing this to our attention.

Wow. Kentucky malpractice lawyers, what do you think of this unique concept?

Who knew?

Rapid response team activation by patients can mitigate errors
Many hospitals are familiar with the concept of rapid response teams (RRT), one of six initiatives that comprise the 18-month-long Institute for Healthcare Improvement's 100,000 Lives Campaign. The idea is simple: any healthcare worker can bypass the typical chain-of-command and call what is essentially a medical "SWAT team" to quickly assess the patient and intervene when life-saving care may be needed (1). Unlike the traditional "code" team, the RRT intervenes before the patient experiences a respiratory or cardiac arrest. The results have been impressive, with reductions in cardiac arrests, deaths, and length-of-stay (2).

Taking this intervention to a whole new level, The University of Pittsburgh Medical Center (UPMC) Shadyside, is perhaps the first hospital in the nation to invite patients and families to call for a RRT to address unresolved concerns about their safety and health (3,4,5). Upon admission, patients and family members are encouraged to pick up any phone in the hospital to report a Condition H (for "help") if they:

IV vincristine survey shows safety improvements needed.

N.Y. Judge Denies Disclosure of Surgeon's Records

Daniel Wise
New York Law Journal
June 21, 2006

A medical malpractice plaintiff, who claims her doctor was suffering from a physical condition that caused him to botch her face-lift, may not compel the doctor to disclose his medical records, a New York judge has ruled.

The defendant doctor's medical records remain privileged, unless he has taken some affirmative step to put his medical condition in issue, Manhattan Supreme Court Justice Eileen Bransten ruled in Brower v. Beraka, 109514/03.

Although Bransten refused to require Dr. George J. Beraka, a plastic surgeon, to disclose his medical records, she did order him to submit to a deposition where he could be asked questions about the facts and circumstances of his condition during the 40 days following the plaintiff's surgery.

Law.com - N.Y. Judge Denies Disclosure of Surgeon's Records.

An interesting read from the Joint Commission Website on the Sorry Works! Coalition.

The Sorry Works! Coalition, an organization of doctors, lawyers, insurers, and patient advocates, is dedicated to promoting full disclosure and apologies for medical errors as a “middle-ground solution” in the medical liability crisis. If a standard of care was not met (as shown by a root cause analysis) in a bad outcome or adverse event, the providers (and their insurer) should apologize to the patient/family, admit fault, provide an explanation of what happened and how the hospital will ensure that the error is not repeated, and offer compensation. The Sorry Works! protocol is based on the disclosure program developed at the Department of Veterans Affairs Hospital in Lexington, Kentucky.

Kentucky accident attorneys take note: Ahlborn may extend to Medicare

In a significant victory for injured plaintiffs, the Supreme Court ruled unanimously on May 1st that state Medicaid agencies’ claims for reimbursement out of tort settlements are limited to that portion of any settlement attributable to past medical expenses. The ruling means that the agencies may not lay claim to any portion of a plaintiff’s recovery for lost wages, pain and suffering, permanent disability or other future damages. Arkansas Dept. of Health and Human Services v. Ahlborn, 126 S.Ct. 1752 (2006).

Medicaid is not the only federal health care program that has asserted a right to priority repayment out of tort settlements; ATLA members report similar claims by Medicare.

We believe that Ahlborn’s logic should control repayment claims by other federal programs, such as those asserted under the Medical Care Recovery Act (“MCRA”) and the Medicare Secondary Payer Act (“MSPA”), despite differences in the language of each statute, because the basic structure of the repayment obligation is the same under all three federal statutes and because all three acts share a common congressional purpose.

In our view, plaintiffs’ counsel should begin to treat the decision in Ahlborn as controlling in cases involving Medicare and other federally-funded health care programs and should be on the lookout for an appropriate case to seek to extend the holding in Ahlborn.

TO READ THE ENTIRE OPINION LETTER, CLICK HERE: Download Opinion Letter from CCL