Northern Virginia and Washington D.C. Medical Malpractice and Personal Injury Lawyers’ Blog

Six Symptoms of Heart Attacks Every Woman Should Know

It is important to know the symptoms of female heart attacks so that you can seek proper medical treatment and insist on the proper tests. Knowing the symptoms may save your life.

Recovering Damages for Hospital Acquired Infections

If you’ve suffered from a hospital infection, or suffered from a loved one’s death due to a hospital infection, then you may be entitled to damages. An experienced Washington D.C. and Virginia medical malpractice lawyer can help you get the recovery you deserve. Call Shevlin Smith today for more information.

What You Need to Know in Order to Provide Informed Consent

Washington D.C. and Virginia informed consent laws require that your doctor provide you with information about your diagnosis, recommended procedure, alternative treatments, and other relevant information before you consent to treatment. If your doctor does not have your informed consent and these other conditions are met, then you may have a medical malpractice case against the doctor. Contact the Virginia and Washington D.C. medical malpractice lawyers of Shevlin Smith for more information.

Retained Foreign Object Cases Remain A Patient Safety Risk

The Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) accredits and certifies more than 15,000 hospitals and other healthcare organizations in the United States.  Its mission is to improve the safety and quality of care patients receive at these entities.  It tracks "sentinel events," which it defines as "an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof."  Such events are called "sentinel" because they signal the need for immediate investigation and response.

One type of sentinel event that JCAHO tracks are retained foreign objects.  Retained foreign objects are surgical items left in patients following surgery.  Estimates indicated that surgical items are left in 1,500 people per year in the United States, including surgical sponges, surgical towels, and surgical instruments such as clamps and retractors.  These items are most often left in the abdomen or pelvis (54% of the cases), the vagina (29%) and the thorax (7%).  Mortality rates resulting from the unintended retention of foreign objects are as high as 11% to 35%.  In virtually all cases, the patient is required to undergo a second (needless) operation to have the foreign object removed.

The JCAHO has issued strategies in an effort to prevent, or at least reduce, the occurrence of retained foreign object events.  Hopefully, the implementation of these strategies, and dilgence by health care providers in the operating room, will
increase patient safety.

If you or a loved one has been the victim of a retained foreign object, and you like to know more about your legal rights, the attorneys at Shevlin Smith would be happy to speak with you.

529 Medical Errors Reported in the District of Columbia In One Year

Unless you or a loved one has been a victim of medical negligence, you have probably never given much thought to how often medical negligence occurs.  You probably have never considered how preventable the medical negligence was.  The Washington, D.C.'s Department of Health's annual report sheds light on those issues.

The city's Department of Health reported that for the 12 months between July 2007 and June 2008, there were 529 "adverse events" in District of Columbia hospitals and clinics.  At least 14 of these errors resulted in the death of the patient.

The underlying nature of the adverse errors was alarming.  At least seven people died because they were given the wrong medicine or given the wrong dose of medication.  Another adverse event involved surgery performed on the wrong breast of a woman.  Another involved the death of patient who, while in respiratory distress, was hooked up to a ventilator that was broken.

Sadly, the 529 adverse events are probably an understatement of the number of actual medical errors that occurred during the reported 12-month period.  Only 10 of the District's 15 hospitals participated in the report, and only two of the District's 21 nursing homes reported.

So, the next time you hear about a medical malpractice case that has been filed, don't be so quick to judge it as frivolous. Ask questions about its underlying facts.  You might be surprised just how preventable the medical error was and how needless a patient's death or injury was.

 

 

Is there too much medical malpractice litigation or is there too much medical malpractice?

In his book, "The Medical Malpractice Myth," Tom Baker seeks to answer the question whether there is too much medical malpractice litigation in the United States or whether there is too much medical malpractice. His answer may surprise you. Tom Baker examines every relevant study performed in the last thirty years on the issue of medical malpractice. Most of these studies were conducted by health care providers, including physicians, hospitals, and nurses. Based upon those studies and other data he has gathered on his own, Tom Baker concludes that there is an epidemic of medical malpractice in the United States. His figures are staggering. Doctors and hospitals injure about one out of every twenty-five hospital patients. Negligence is the cause of injury in about one of every four of those cases, meaning that one patient in every 100 is the victim of medical malpractice. Of note, more people are killed by medical malpractice than are killed by auto and workplace accidents combined. Other significant findings include:

* Compared to the amount of medical malpractice, there is very little medical malpractice litigation. The evidence shows that very few victims of medical malpractice actually file lawsuits. Data show that there are approximately seven proven medical malpractice injuries for every one medical malpractice case that is filed.

* The number of medical malpractice lawsuits is not growing. Similarly, the overall size of the lawsuit settlements and verdicts is not increasing, particualry once the rising medical care costs for treating medical malpractice victims is taken into account.

* Medical malpractice lawsuits and jury verdicts are not to blame for the recent medical malpractice insurance crisis. In reality, the culprit for the insurance crisis is the boom-and-bust cycle in the insurance industry that has been an inherent part of the insurance business for over a century.

* Medical malpractice lawsuits are not depriving Americans of access to health care. The evidence shows that the costs associated with medical malpractice litigation are less than 1% of the entire cost of the health care system.

* Medical malpractice lawsuits actually do good. An example of this is the American Society of Anesthesiologist's closed case study of all past medical malpractice claims filed involving anesthesia. This study led to significant changes in how anesthesia was practiced in the United States. For example, better anesthesia equipment was developed and new practice guidelines were implemented. The end result was better health care for patients and lower insurance premiums for anesthesiologists.

* Medical malpractice insurance premiums for health care providers is not as high as commonly reported. The average insurance premium paid per doctor is less than $12,000.

Three Virginia Nursing Homes Listed Among Nation's Worst

The Centers for Medicare and Medicaid Services (CMS) recently released its list of the worst nursing homes in the United States. Among the 131 nursing homes cited were three from Virginia -- Beacon Shores Nursing & Rehabilitation in Virginia Beach, Ruxton Health of Woodbridge, and Harbour Pointe M & R Center in Norfolk.

Nursing homes were placed on the list based upon findings made by inspection teams. Criteria employed by the inspection teams included: (1) whether a nursing home had more deficiencies involving quality of care matters than an average nursing home; (2) whether a nursing home had more serious deficiencies involving quality of care matters than an average nursing home; and (3) whether a nursing home had a pattern of serious problems that has persisted over a long period of time.


The Centers for Medicare and Medicaid Services make the following suggestions regarding the selection of a nursing home:

• Visit the nursing home and talk to staff, residents and other families
  
• Ask to see the results from the last State or CMS survery
• Look at the survey history of the nursing home on Nursing Home Compare to see what areas may be problematic
• Ask the nursing home staff what they are doing to improve quality of care for residents in the nursing home
• Call the State survey agency to find out more about the nursing home
• Look to see if the nursing home has been placed on the the Special Focus Facility (SFF) Initiative by the Centers for Medicare & Medicaid Services in the past and see how long the nursing home remained on that list
• Call your local State Ombudsman, Administration on Aging, and local groups to find out about the nursing home
• Use the "Nursing Home Brochure" found at http://www.medicare.gov/Publications/Pubs/pdf/nursinghome.pdf and "Guide to Choosing a Nursing Home" at http://www.medicare.gov/Publications/Pubs/pdf02174.pdf
  

How Can A Medical Malpractice Case Be Called Frivolous When Expert Medical Testimony Is Required Before A Lawsuit Can Even Be Filed?

If you have read our previous blogs, you have noticed that we take great issue with the tort reformers' claim that our legal system is plagued with frivilous medical malpractice lawsuits.   We have previously cited on our website numerous studies that debunk this claim.

Now, there is additional support for our position.  This time it comes from an article written by physicians in the December 2007 issue of the medical journal, Plastic & Reconstructive Sugery. 

In an article captioned, "Expert Witness Reform," the authors correctly note that a lawyer cannot bring a frivolous claim to trial without a physician expert witness stating that the claim is not frivolous.  Thus, as the authors conclude, it is the expert physician, not the attorneys, who define "meritless" and "frivolous" claims.

In Virginia, the protections against frivolous medical malpractice lawsuits are even greater.   Under Virginia law, a lawyer cannot even file a medical malpractice lawsuit without a physician expert witness certifying that the case is not frivolous.      

Shevlin Smith's Praise for "A Call To Action For Doctors"

Dr. SreyRam Kuy, a medical doctor, recently wrote an Op-Ed in the Los Angeles Times  entitled "Stand up for Patients."  We found this physician's perspective on the current status of our nation's health care system and the response of doctors to be both refreshing and enlightening.

Dr. Kuy noted that physicians are increasingly outspoken on issues such as tort reform and cuts in Medicare reimbursement rates, both of which affect physicians' income.  However, there seems to be relative silence about reports of poor health care or medical negligence in the United States.  He cites the report compiled by the Institute of Medicine regarding statistics of medical negligence, which our firm has previously cited and discussed in prior blogs).  He also pointed to the recent Commonwealth Fund's national score card showing that the U.S. ranks last among 19 industrialized nations on infant mortality, and 15th on "mortality from conditions amenable to healthcare" — that is, early deaths that might have been prevented with proper care.  Dr. Kuy boldly reminds colleagues that a physician's first loyalty should be to his or her patients, rather than to bolstering personal income, stating that physicians hold a "sacred trust" to protect their patients' health. 

Dr. Kuy cites a positive example of physicians with the proper motivation that recently occurred in California.  Blue Cross of California requested physicians to disclose any medical conditions that might enable it to cancel patients' medical coverage.  Dr. Kuy praises the California Medical Association and the physicians who protested this outrageous request, which was so obviously not in the best interests of the patients.

Although Dr. Kuy seems sympathetic to the low morale of physicians, he suggests that a fight for the patients rather than for greater income is the better way to boost morale.  We certainly agree that the medical community would be better served, both in its public image and its own morale, if it were better policed from within.

As we have pointed out before, the drop in physician income has very little, if anything, to do with medical malpractice lawsuits, and has everything to do with how insurance companies choose to compensate physicians for patient care and how insurance companies choose to charge physicians for medical malpractice insurance.   The enemy is not the legal system, which seeks to provide recourse for patients who have been injured by the negligence of physicians and other health care providers.  The true enemy is insurance companies who consistently put their corporate profits ahead of everyone else -- physicians, other health care providers, patients, etc.

Unfortunately, physicians certainly feed the public and political outcry against cases of medical negligence.  Innocent victims of negligence in other types of cases, such as automobile accidents, are not nearly as denigrated.  At Shevlin Smith, it is our position that a victim is to be assisted and compensated, regardless of the origin of injury.  Dr. Kuy took brave steps toward encourgaging his colleagues to abandon prejudice against medical reform when he insisted that the patients' best interest must come first. 

Another Frivilous Lawsuit Myth Debunked

In previous blogs, we have disputed claims by proponents of medical malpractice tort reform that insurance premiums are rising as a result of an increase in medical malpractice claims. A recent study out of the Suffolk University Law School offers further support for our position.

Examining malpractice insurance premiums in the State of Massachusetts from 1975 to 2005, the authors of this study found that medical malpractice premiums have actually declined from 1990 to 2005 for virtually all physicians practicing in Massachusetts. The authors noted that because Massachusetts has the fourth-highest median malpractice payouts of all states, if there was a premium crisis due to the number of lawsuit settlements, it should logically occur in Massachusetts

The authors proved yet again that malpractuce premiums are not higher than ever and that there is no premium crisis. Their study demonstrates the fallacy of such arguments, noting that the proponents of such arguments fail to account for inflation, discounts offered by insurance companies to increase their market share, and the historical rise and fall cycle in insurance underwriting.

Moreover, national figures published by the American Medical Association support the fact that malpractice insurance premiums do not have a significant impact on a physician's ability to practice medicine. These figures show that premiums make up 7 percent of total practice costs for all physicians.

Serious But Preventable Medical Injuries On The Rise

Previously, we have cited the landmark study by the Institute of Medicine published 2001 titled "To Err Is Human: Building A Safer Health System" as proof that preventable medical errors occur at alarming rates.  That study estimated that preventable medical errors caused 98,000 deaths per year.  It did not estimate the number of non-death injuries caused by preventable medical errors.

Today, seven years later, there is evidence that the rate of injury due to preventable medical errors continues to rise.  The Salt Lake Tribune reports that since 2002 the number of preventable serious medical injuries in Utah hospitals has increased by over 50%.   This figure is limited to "never events" which are defined are events that are never suppose to occur.  Such events include surgeries done on the wrong body site, surgeries in which instruments are left inside the patient, blood transfusion using the wrong blood type, and medication errors.

Medicare Stops Paying for Medical Errors

On October 1, 2008, Medicare enacted a new policy concerning its payment of medical care costs caused by hospital errors.  Under this new policy, Medicare will not pay for medical care costs that occur as a result of 10 reasonably preventable events.  These events are often referred to as "never events" because they should never occur.  These never events include complications arising from when patients receive incompatible blood transfusions, second surgeries necessitated by foreign objects left behind in a patient from a prior surgery, second surgeries necessitated by certain infections, surgeries performed on wrong body parts, complications from serious bed sores and falls that occur in the hospital, and urinary tract infections caused by in-hospital use of catheters.  Most importantly from a patient perspective, Medicare's new policy also prevents hospitals from billing patients directly for costs generated by such errors. 

Prior studies have shown that the occurrence of "never events" has huge consequences both financially and for patient well-being.  For example, one study has found that the occurrence of never events account for 2.4 million extra hospital days, $9.3 billion in extra charges, and 32,600 deaths.

An interesting side issue to watch is what effect will Medicare's new policy have in the ability of patients to prove medical malpractice cases when these "never events" occur. 

Preemption of Tort Litigation

Earlier this month, the United States Supreme Court heard oral argument on an extremely important case concerning the rights of Americans.  The case is Wyeth v. Levine.  The case involves a 62-year-old woman (Levine) who was given the drug Phenergan by "intravenous push."  The intravenous push allowed the drug to enter Levine's arterial blood system, which caused injury and ultimately led to the amputation of her hand and forearm.  A jury found Wyeth (the manufacturer of Phenergan) negligent in failing to provide adequate warnings concerning this possible danger, and awarded Levine compensation for her injuries.

The Wyeth v. Levine case involves the legal doctrine of "preemption." Preemption is the concept that federal law takes precedence over state or local law.  When properly invoked, it stands for the proposition that when federal law regulates certain activity then that regulation supercedes any conflicting state law.

In the context of the Wyeth case, the Food & Drug Administration (FDA) is the federal agency that regulates the labeling of drugs.  The Food, Drug, and Cosmetic Act (FDCA) is the federal law that applies to drugs such as Phenergan.  Wyeth argues that that FDA approved the drug label for Phenergan, which permitted the administration of the drug through intravenous push, and that therefore state law should not permit a tort claim.  In contrast, Levine argues that the FDA never considered, much less rejected, a label that would have prohibited intravenous push administration, and that Wyeth should have added that prohibition to its label on its own in light of Wyeth's knowledge of its risks.  Additionally, Levine argues that the FDCA does not have any express preemption clause, which indicates congressional intent to have the FDCA trump state law.

The significance of the Wyeth v. Levine case lies less in the legal doctrine at play, but more on who is best able to protect Americans from known dangers of drugs and other products.  The United States Supreme Court's decision will have a profound effect for patients and drug safety.  If the Court decides in favor of Wyeth, then the FDA will become the sole protector of patients.  The problem is that the FDA is not equipped to evaluate the safety of drugs and its warning labels.  Moreover, given the approval process for drugs in the United States, many safety problems are never discovered until after a drug's approval, and then only if the drug manufacturers report such problems voluntarily.  The United States has a long tradition of relying upon the tort system in general, and upon the state tort system specifically, in order to protect the safety of Americans from unreasonbaly dangerous drugs and products.  The tort system has demonstrated itself to be effective in undercovering adverse drug reactions and manufacturer delay in responding.   

In support of the tort system, a recent article appeared in the Journal of the American Medical Association.  This article was written by physicians, and supported the notion that the FDA is not capable of protecting Americans on drug safety issues.  They argued that patients are best served by the tort system.  Let's hope that the United States Supreme Court listens, if not to the lawyers, than at least to the physicians.