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

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.

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.

If you have handled medical malpractice cases in and around Kentucky you have no doubt practiced a case with Kirsten Daniel. She spent the last 8 years defending doctors and hospitals in Kentucky medical malpractice cases and gained extensive trial experience in the process. I am pleased and proud to say that she recently made the switch from the dark side and joined our firm.

On our way to meet with clients yesterday, Kirsten and I started talking about Sentinel Event and Peer Review materials and their importance in med mal litigation. She informed me that many plaintiff's lawyers don't even request Sentinel Event or Peer Review materials, which came as a big surprise to me. I can only assume this is because these lawyers don't know about the JCAHO's Sentinel Event policy. And that is a big problem, as these materials often contain a wealth of information which is not discoverable by any other means.

It is essential that any lawyer handling medical malpractice cases have a firm grasp of Sentinel Event, Root Cause Analysis and Peer Review procedures. The JCAHO website is a great place to start educating yourself on the subject.

Sentinel Event Links

Joint Commission Sentinel Event Main Page

Sentinel Event Policy and Procedures - Joint Commission

Joint Commission website search for "Sentinel Event"

JCAHO Sentinel Event Flow Chart

Here are two books which should be in the library of any medical malpractice lawyer:

Sentinel Events: Evaluating Cause and Planning Improvement, Second Edition

Root Cause Analysis in Health Care: Tools and Techniques, Third Edition

The Joint Commission on Accreditation of Healthcare Organizations has released the Fourth Edition of its book "Patient Safety Essentials for Health Care." This is a valuable reference which should be in the library of any Kentucky malpractice lawyer.

The blurb: "This book is the complete guide to the Joint Commission's safety standards for ambulatory care, behavioral health care, critical access hospital, home care, hospital, and long term care organizations. It includes the standards, rationales, elements of performance, and scoring information in one handy resource. This book also identifies the commonalities among the standards to help readers understand which standards apply to which settings."

Order it for $75.00 here.

Thanks to John Day of MedMalBlog.com for bringing this important resource to our attention.

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.

A very helpful resource for any Kentucky injury attorneyJanabeth Evans Taylor, R.N., R.N.C co-aouthered a wonderful article for ATLA's TRIAL Magazine on preparing for defense medical expert's deposition.

Brief excerpt:

Here is a general list of information to collect for the medical expert’s deposition. Consider adding these items to your subpoena duces tecum for deposition. Request copies of

• the expert’s license to practice medicine

• certificates, memberships, and awards

• applications for continuing medical education credits for seminars and courses attended

• the expert’s Ph.D. thesis

• published abstracts and articles

• materials presented at professional meetings covering the issue in your case

• patents held by the expert or his or her employer (The Statement of Claims in patent documentation may explain what hazard the invention should ameliorate; for example, a needle guard may be intended to prevent perforation of vital organs.)

• a list of authorities in the lawsuit’s subject that the expert deems to be reliable

• all documents provided to the expert for review in the case.

—Betsey Herd and Janabeth Evans (Taylor)

READ THE ENTIRE ARTICLE: Preparing for the defense medical expert’s deposition

Kentucky medical malpractice attorneys: Do you request sentinel event and peer review information in all your medical malpractice cases? You should.

All hospitals eligible for federal funding are accredited by the Joint Commission on Accreditation of Healthcare Organizations (the “JCAHO”). As part of its accreditation survey, the JCAHO reviews its members’ processes for identifying, reporting and responding to “sentinel events”. The purpose of these guidelines is to improve patient outcomes and avoid malpractice resulting in serious personal injury or wrongful death.

In 1996, the JCAHO promulgated “Sentinel Event Policy and Procedures”. They state in part:

I. Sentinel Events
In support of its mission to improve the quality of health care provided to the public, the Joint Commission includes the review of organizations’ activities in response to sentinel events in its accreditation process . . .

◆ A sentinel event is an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. Serious injury or loss of limb or function.
◆ Such events are called “sentinel” because they signal the need for immediate investigation and response”

II. Goals of the Policy

“The goals of the policy are four-fold:
◆ To have a positive impact in improving patient care.
◆ To focus the attention of an organization that has experienced a sentinel event on understanding the causes that underlie the event, and on making changes in the organization’s systems and processes to reduce the probability of such an event in the future.
◆ To increase the general knowledge about sentinel events, their causes, and strategies for prevention.
◆ To maintain the confidence of the public in the accreditation process”

Click here for a sample Motion to Compel Production of Sentinel Event and Peer Review Documents