Georgia Injury Lawyer Blog

Incompetent nurses working in Georgia may have a history of malpractice which is unknown to the institutions and people employing them. A recent investigation reported in USA Today has disclosed the fact that communication among state licensing agencies which supposedly protect patients from dangerous nurses is frighteningly lacking and in many cases, nonexistent.

The article gives as an example the matter of Nurse Craig Peske who was fired from a hospital in Wausau, Wis., in 2007 after stealing the powerful painkiller Dilaudid.

Hospital officials reported him to Wisconsin nursing regulators and alerted police.
Six months later, Peske was charged with six felony counts of narcotics possession. But by that time, he had used a special "multistate" license to get a job as a traveling nurse at a hospital 1,200 miles away in North Carolina.

Peske was later convicted of two felony drug charges.

The ease of Peske's move demonstrates the gaps in regulatory efforts nationwide to keep nurses from avoiding the consequences of misconduct by simply moving across state lines.

The two states in which Peske worked are part of a 24-state compact created to help get good nurses to areas where they are needed most. Under the decade-old partnership, a license obtained in a nurse's home state allows access to work in the other compact states. Georgia is not a member of the compact.

The Georgia Secretary of State, like may others, maintains a database of nurses licensed to practice in this sate with disciplinary actions noted. However, in order to check the complete background of a nurse one would have to search all 50 states.

An investigation by the non-profit news organization ProPublica found that the pact also has allowed nurses with records of misconduct to put patients in jeopardy. In some cases, nurses have retained clean multistate licenses after at least one compact state had banned them. They have ignored their patients' needs, stolen their pain medication, forgotten crucial tests or missed changes in their condition, records show.

Critics say the compact may actually multiply the risk to patients. There is no central licensing for the compact, so policing nurses is left to the vigilance of member states.

With the advent of modern technology it should be a rather simple task to establish a centralized registry to which each state’s nursing licensing board could post information regarding findings of misconduct or malpractice by nurses. The existence of such a database made available to hospitals, nursing homes, and other health care organizations could potentially prevent harm to many innocent persons.

Weaknesses in the state-based system for disciplining problem nurses have surfaced as a public health issue during the past year. California, for example, revamped its nursing board and its executive officer resigned after reports of ineffective oversight that put patients at risk.

The state recently discovered that 3,500 of its nurses had been disciplined by other states but had kept clean California licenses.

Nationwide, nursing shortages have forced hospitals to rely on traveling or temporary nurses. Nurses working in one state now take medical-advice phone calls or use teleconferencing

Georgia citizens face some of the most restrictive medical malpractice laws in the country. One of the justifications used by politicians and medical groups to support these restrictions on injured patients right of recovery is that medical professionals can police their own and eliminate incompetent practitioners.

This bogus contention has finally been exposed by a doctor survey published Tuesday in of all places, the Journal of the American Medical Association.

Conducted by a team from Massachusetts General Hospital in Boston, the study used data from a 2009 national survey of close to 3,000 physicians practicing in anesthesiology, cardiology, family practice, general surgery, internal medicine, pediatrics and psychiatry.

Physicians were questioned in three areas: about their responsibility to report physicians who were incompetent or impaired by drugs or alcohol, about their preparedness and comfort level in doing so, and about their experiences with colleagues with these issues.

According to the report, about 70% of physicians said they feel prepared to report impaired physicians, and 64% said they were prepared to report incompetent ones. But more than one-third, 36%, said they do not feel obligated by professional commitment to do so.

Physicians with less experience, 10 years or fewer, were most willing to report impaired or incompetent colleagues. Those with greater experience, 20 years or more, were less likely to feel that it was their responsibility to do so.

Pediatricians and family practice doctors were the least likely to say they felt prepared to deal with impaired or incompetent colleagues; anesthesiologist and psychologists apparently felt most prepared.

The survey also found that 17% of respondents had direct knowledge of an impaired or incompetent physician colleague in their hospital, group or practice in the last three years. Of these physicians, 67% had reported that person to a hospital, clinic, professional society or other authority.

Among physicians who had encountered impaired or incompetent colleagues and had chosen not to report them, the two most frequently cited reasons for not doing so were the belief that someone else was taking care of the issue and the belief that nothing would happen as a result of the report.

It is frightening that a large portion of physicians do not honor the commitment to report another physician even when they have direct personal knowledge of a colleague that is incapacitated by drugs or alcohol or otherwise incompetent to be rendering care to innocent human beings.

Many Georgia veterans receive care at VA hospitals throughout the state. We have previously written about the lapses in safety at VA hospitals across the country which have negligently exposed these brave men and women to life threatening diseases.

Yesterday, a former medical supply technician at the St. Louis VA Medical Center told a congressional hearing that she warned more than a year ago that dental equipment sterilization was inadequate, but she was ignored.

Earlene Johnson testified before a hearing in St. Louis called by the House Committee on Veterans' Affairs. The committee met after the VA sent letters two week ago, warning 1,812 veterans treated at the St. Louis dental clinic that lapses in sterilization of dental equipment potentially exposed them to viruses including hepatitis B, hepatitis C and HIV.

A VA official revealed yesterday that some veterans have tested positive for the viruses but it was too soon to tell if the dental equipment was the cause.

Johnson began working at the St. Louis VA in December 2008 in the sterilization division. She did not work directly for the dental division but said she saw flaws in dental sterilization. She testified that starting in March 2009, she tried to alert VA officials at the St. Louis center and in Washington about the inadequacies, to no avail.

It was a full year later that the VA notified veterans of the sterilization problem and urged them to get blood tests. Meanwhile, Johnson was fired for what she believes was retaliation for the concerns she raised.

The VA determined in March 2010 that lapses in dental sterilization had occurred from Feb. 1, 2009, through March, 11, 2010. According to the VA,
the problem arose because workers prewashing dental equipment failed to use a detergent before the equipment was sterilized.

Veterans Affairs Committee chairman Bob Filner, D-California, said his concerns extend beyond the inadequate sterilization. He wondered why problems were substantiated in March, but no one was told until the June 28 letter and news release.

VA officials have said the delay was because officials were evaluating the risk posed to veterans.

Other VA centers around the country have had problems in recent years.
In 2007, Walter Reed Army Medical Center in Washington came under fire over concerns about conditions at the hospital and treatment of veterans. That same year, a surgeon at the VA hospital in Marion, Ill., resigned after a patient bled to death following gall bladder surgery. The VA found at least nine deaths between October 2006 and March 2007 resulted from substandard care at the Marion hospital.

In 2008, inadequate sterilization of endoscopy equipment at VA centers in Florida, Georgia and Tennessee potentially exposed 10,000 veterans to viruse

Georgia medical malpractice cases have become increasingly difficult to bring as the legislature enacts more and more restrictive laws. A fact which many do not know is that patients injured by highly negligent actions in Georgia emergency departments have no right of recovery. This is due legislation which established a gross negligence standard which governing the actions of emergency room personnel.

This standard has been interpreted by the Georgia courts as requiring almost intentional conduct.

The extreme unfairness of this law is illustrated by a recent incident occurring at a VA hospital in Missouri. The VA hospital is under fire because it may have exposed more than 1,800 veterans to life-threatening diseases such as hepatitis and HIV.

The John Cochran VA Medical Center in St. Louis recently mailed letters to 1,812 veterans telling them they could contract hepatitis B, hepatitis C and human immunodeficiency virus (HIV) after visiting the medical center for dental work.

The alert was caused by the failure to clean dental instruments properly. According to reports, dental technicians broke protocol by handwashing tools before putting them in cleaning machines.

The instruments were supposed to only be put in the cleaning machines. The handwashing started in February 2009 and went on until March of this year.

A similar event occurred recently at a California hospital which was forced to send letters to 3,400 patients who underwent colonoscopy and other similar procedures, informing the patients that there may be a potential of infection from items used and reused in the procedures.

This misconduct is totally unacceptable, yet in Georgia, patients exposed to these deadly diseases in an emergency room setting have no recourse.

Atlanta, and other metropolitan areas in the state of Georgia have seen a rapid expansion in the numbers of same-day surgery centers. Yesterday, the Journal of the American Medical Association published an article suggesting that lack of infection practices are common in the nations more than 5000 outpatient surgery centers.

The study was prompted by a hepatitis C outbreak in Las Vegas. This outbreak was caused by unsafe injection practices at two outpatient surgery centers.

Failure to wash hands, wear gloves and clean blood glucose meters were among the reported problems found by the study. The study also found that many outpatient centers reuse devices meant to be used only by one person or dipped into single dose medicine vials for multiple patients.

In the study, state inspectors visited 68 outpatient surgery centers in Maryland, North Carolina and Oklahoma. At each site, the inspectors followed at least one patient through the entire stay. The inspections were not announced ahead of time.

The study revealed that 67% of the centers have at least one lapse in infection control and 57% were cited for deficiencies. A few of the centers in the study had not been inspected in 12 years. Under current regulations, state agencies have the main responsibility for making sure the centers comply with federal standards.

In the Nevada outbreak, 63,000 patients were notified that they may have been exposed to blood borne diseases. Nine cases of hepatitis C were linked to the clinics and it is suspected that another hundred cases may also be related.

As a result of the study, United States Health and Human Services Secretary Kathleen Sebelius announced that her department will be expanding its hospital infection control action plan to include ambulatory surgical centers and dialysis centers.

Our military service members stand ready to put their lives on the line to protect the freedoms upon which our country is based. Yet, they are not provided the basic remedies available to other citizens who are victims of medical malpractice.
Under a 60-year-old Supreme Court ruling known as the Feres doctrine, service members are banned from suing the federal government for even the most egregious medical errors.

Pending before Congress is a bill that would remove that inequity. Rep. Maurice Hinchey, D-N.Y., is the lead sponsor of the bill, the Carmelo Rodriguez Military Medical Accountability Act, which would amend federal law to “allow members of the Armed Forces to sue the United States for damages for certain injuries caused by improper medical care, and for other purposes.”

Rodriguez was a Marine Corps platoon leader and Iraq war veteran who died at age 29 from a melanoma that military doctors at first correctly diagnosed but failed to refer for treatment and then later misdiagnosed as a birthmark.

“The 7-year old son and family he left behind currently have no legal recourse for this tragic case of malpractice,” Hinchey said in a statement. “Those who were at fault have not been held accountable.”

The bill recently gained the support of the 370,000-member Military Officers Association of America. The Association’s president, retired Vice Adm. Norb Ryan, wrote a letter of support to Rep. Hichey in which he noted, that legal recourse for medical negligence is available to all other citizens, including military dependents, military retirees and survivors and their dependents, and even federal prisoners and wartime detainees. He stated that MOAA agrees that it is inconsistent to treat service members differently.

The bill has also been endorsed by the American Association for Justice, the American Bar Association, Veterans Equal Rights Protection Advocacy, the Alliance for Justice, and Protecting Our Guardians.

The bill recently was approved by the full House Judiciary Committee and awaits a House floor vote.

Medical errors kill and maim thousands of citizens every year. Now, under the new health care reform legislation, something is finally being done to protect innocent potential victims of medical errors.

The new healthcare legislation, which was so vehemently opposed by many as being the destruction of healthcare, puts hospitals on notice that they must improve the safety and quality of care for patients or risk large fines.

The health care reform statute contains dozens of provisions designed to protect patients. These include including fining hospitals in an effort to reduce medical errors, hospital-borne infections and costly preventable readmissions. It is estimated that these three problems alone cost billions of dollars annually.

When considered individually the costs and extent of these problems is staggering.
Preventable readmissions cost the health care system about $25 billion every year, according to accounting firm PricewaterhouseCoopers.

In an effort to alleviate this problem, beginning in 2012, the Department of Health and Human Services will publish each hospital's readmission track record. A “readmission” is defined as a patient returning within 30 days of discharge. High readmission rates tend to indicate hospitals are ignoring patient issues or engaging in premature discharges.

In an effort to stem this issue, beginning in 2012, Medicare will stop paying hospitals for preventable readmissions tied to certain health conditions such as heart failure or pneumonia. In 2014, the policy will be expanded even farther.

The second penalty for hospitals addresses hospital-acquired conditions stemming from medical errors or infections.

The government currently gives hospitals an incentive payment for reporting their performance in areas such as patient satisfaction and care tied to treatment of conditions such as heart failure, pneumonia and hospital-borne infections.

Under the new statute, beginning in 2012, hospitals will be reimbursed according to their score. Higher scoring hospitals will receive higher payment and vice versa.
In 2015, the government will start reporting each hospital's record for medical errors and infections relating to Medicare patients.

About 15 million injuries result every year in the United States due to inferior medical treatment. These include more than than 30,000 people who die annually from catheter-related blood stream infections.

In 2015, Medicare will reduce its payments by 1% to hospitals with the highest rate of medical errors and infections. The government will also no longer pay hospitals for treatment when a Medicaid patient is harmed during a hospital stay.

It is anticipated that these financial incentives and penalties will greatly reduce injuries to patients and save millions of dollars at the same time.

From a consumer, patient and taxpayer perspective, these new common sense provisions are a big win.

We have recently written about the defective heart defibrillators sold by the Guidant Corporation and the dangers they present. Last week a federal judge in Minnesota rejected a plea agreement between the federal government and the Guidant Corporation, saying that the deal did not hold the company sufficiently accountable.

The plea agreement worked out between federal prosecutors and Guidant requires Guidant to plead guilty to two misdemeanors and pay a $296 million fine.

But, the judge held that the agreement was not in the best interest of justice and failed to adequately serve the public’s interest. He found that it did not adequately address the seriousness of the offenses.

The judge found that prosecutors should have sought probation for Guidant and its parent, Boston Scientific. Probation would have allowed the court to maintain control over Guidant to ensure that agreed upon remedial steps were implemented.
The judge also suggested other provisions that might be suitable in a new plea deal, including charitable activities by Guidant to improve heart device safety and improve medical care among minority patients.

After a hearing last month, several doctors and patients wrote to the judge urging him to reject the deal and arguing that former Guidant executives should be criminally charged in the case.

The case results from disclosures in 2005 that Guidant did not alert doctors and patients that some of its defibrillators had a defect that might cause them to fail. At least six patients died.

Recently, prosecutors charged in court papers that Guidant had knowingly sold potentially flawed defibrillators. But that issue was not addressed in the plea agreement. Instead, the company agreed to plead guilty to two misdemeanor charges that related to the completeness and accuracy of its filings with the FDA.

Defective medical devices have been a major source of injury and death for years. During previous administrations device makers have been basically unregulated due to lax enforcement by the Food and Drug Administration. This abdication of responsibility may soon end.

Federal regulators say they are moving to tighten their oversight of medical devices. Specifically included are infusion pumps, one of the most commonly used pieces of medical equipment. These pumps intravenously deliver drugs, food and other solutions to patients, and have been the subject of many failures for years.

Last Friday, the FDA issued preliminary guidelines that will require producers of infusion pumps to supply the agency with more test data on them before they can be approved for sale.

The FDA reports that over the last five years it has received reports of 710 patient deaths linked to problems with infusion pumps. FDA officials say they think the number may be significantly higher. Some of the reported deaths involved patients who suffered drug overdoses accidentally, either because a hospital worker entered incorrect dosage data into a pump or because the device’s software malfunctioned.

The FDA estimates that two million infusion pumps are used in hospital and clinical settings and hundreds of thousands more are used by patients in their homes.
The new initiative by the FDA is the result of the Obama administration trying to reestablish the role of the FDA after years of criticism by lawmakers and others that it was a rubber stamp for medical device industry.

A few years ago several top FDA scientists complained that their superiors had ignored both their recommendations and policy guidelines in approving the sale of infusion pumps. Along with reports of 710 deaths, the center also received more than 10,000 complaints annually about infusion pumps from 2005 to 2009.

A senior FDA official announced that new approach that the agency was taking toward infusion pumps might soon be extended to other types of medical devices.
The biggest makers of infusion pumps include Baxter Healthcare of Deerfield, Ill.; Hospira of Lake Forest, Ill.; and CareFusion of San Diego.

Under the infusion pump proposal, which could be completed by the end of the year, producers would be required to provide additional data to support the procedures they used to determine the effectiveness and safety of their devices. In addition, companies would have to conduct limited clinical trials to ensure their pumps were not susceptible to misuse or had design elements that could create errors.

The pump manufacturers say that most problems occur when a nurse or health care worker enters the wrong software data accidentally. FDA officials found that not to be the case. In the FDA review of pump complaints many more deaths and injuries related to the devices were the result of defective product design and engineering.

Under current FDA rules, life-sustaining devices like heart defibrillators must be subjected to clinical trials before they are approved for sale. But the FDA clears the sale of many other critical devices like pumps without clinical testing based on a manufacturer’s claim that a new device is similar to a product already on the market.

A study of Medicare patients shows that doctors are increasingly performing costlier, more complex spinal fusion surgeries, sometimes unnecessarily, for stenosis, a common lower back condition caused by aging and arthritis.

Even more disturbing is that the findings suggest these more challenging operations are riskier, leading to more complications and even deaths.

According to surgeons, a simpler and less risky operation could cost $20,000 and the more complex one $80,000 without any good evidence the expensive one is being used appropriately in the majority of cases.

The cost to Medicare, just for the hospital charges for the three types of back surgery reviewed is about $1.65 billion a year, according to the researchers.

All the patients in the study had stenosis in their lower backs, a painful squeezing in the spine that's most common in people over 50. The researchers compared the risks for three different types of surgery for the condition: decompression, simple fusion and complex fusion.

There's little agreement about the best way to treat chronic lower back pain, and much depends on what's causing the pain.

Many times steroid injections and physical therapy provide relief, and a simple decompression procedure is as helpful as a spinal fusion and with less risk.
In a decompression procedure, the simplest method in the Medicare study, a surgeon cuts away part of the bone that's painfully pressing on nerves. It can cost about $30,000 in hospital and surgeon fees.

For a fusion, a surgeon binds two or more vertebrae together using a bone graft, with or without plates and screws. The researchers defined a complex fusion as one involving three or more vertebrae or more than one side of the spine. Fusions cost $60,000 to $90,000.

The researchers analyzed data on more than 32,000 Medicare patients who had one of the three types of surgeries in 2007.

About 5 in 100 patients who had simple or complex fusions suffered major complications such as stroke compared to 2 in 100 with decompressions. The risk of death within 30 days after surgery was different too: 6 in 1,000 for complex fusions compared with 5 in 1,000 for simple fusions and 3 in 1,000 for decompressions.
More than half the patients who had complex fusions had a simple stenosis, which usually calls for decompression alone. They did not have curvature of the spine or a slipped vertebra which might suggest a fusion is needed.

Rates of complex fusions in Medicare patients rose 15-fold from 2002 to 2007, while decompressions and simple fusions declined, the study found. Although the overall procedure rate fell, hospital charges grew 40 percent.

Aggressive marketing of devices used in complex fusions is likely playing a role in the increase according to researchers. The marketing includes ads in medical journals and lectures by surgeons on the payroll of device manufacturers.

Allegations of kickbacks to spine surgeons for using products and questionable financial arrangements to doctors as consultants have abounded in the industry. One company, Medtronic Inc., reached a $40 million settlement with the U.S. Justice Department in a whistleblower case that included allegations the company paid doctors to use its spine surgery products. The company denied any wrongdoing.

A provision in the new health care law requires device makers and others to file annual reports to the government on their financial ties to doctors. Patients will be able to look up possible conflicts in a government database.

Medical malpractice became a hot button issue in the recent healthcare debate. Many politicians, healthcare workers, and large insurers argued that medical malpractice cases are a large contributor to the rising cost of healthcare in the United States. Even though this line of argument has been consistently proven to be false, it was constantly brought up buy opponents of healthcare reform.

There is a better way to reduce the number of medical malpractice cases without sacrificing innocent victims who have been maimed due to preventable medical errors.

A California study has revealed a decrease in preventable patient injuries in California hospitals from 2001 to 2005 that coincided with a drop in malpractice suits against doctors.

"These findings suggest that putting a greater focus on improving safety performance in health care settings could benefit medical providers as well as patients," stated lead author Michael Greenberg, a behavioral scientist at the Rand Corporation. The study was released April 15 on the group's Web site.
The researchers analyzed 2001-05 data and found that there were about 365,000 adverse events among patients, such as post-surgical problems and hospital-acquired infections, and about 27,000 malpractice suits in California during that time.
The study found a significant association between the annual number of safety lapses that put patients at risk in each county and the number of malpractice claims. A model created by the researchers showed that a county with 10 fewer adverse events in a year would have 3.7 fewer malpractice claims during that year.

The study is the first to show a connection between improved performance on 20 well-established indicators of patient safety and fewer malpractice claims, according to the researchers.

This simple solution to reducing medical malpractice claims will benefit everyone.

Our Atlanta medical malpractice lawyers have written in the past about the unfairness of damage caps in medical malpractice cases and how they penalize the most severly injured innocent victims of medical malpractice.

Currently before the Georgia Supreme Court is the issue of the constitutionality of the $350,000.00 cap on non-economic damages enacted by the legislature in 2005. A decision is expected any day.

The attorneys who prosecuted that case have prepared a video which explains and details the terrible injuries suffered by their client. While the content is extremely disturbing and may upset some, we recommend that all citizens of this state view the video, so that they may be truthfully educated about the horrors of medical malpractice and the unfairness of caps on damages.

The link is as follows:
http://vimeo.com/9943651

Radiation overdoses are a serious and dangerous problem facing cancer patients throughout the United States. We recently wrote about a New York Times investigation of fatal radiation overdoses at a Florida hospital. Now, a hospital in Missouri has admitted that it overradiated 76 patients over a five year period. The vast majority of the overradiated patients were suffering from brain cancer.

The hospital, CoxHealth in Springfield, Missouri, blamed the errors on powerful new radiation equipment which had been calibrated incorrectly even with a representative of the manufacturer watching as it was done.

According to the hospital, half of all patients undergoing stereotactic radiation therapy were overdosed by about 50 percent after a physicist at the hospital miscalibrated the new equipment and routine checks over the next five years failed to catch the error.

Stereotactic therapy delivers radiation in such high doses that usually only one treatment is required. It is commonly used to treat small tumors in the head.

The overradiations were discovered in September 2009 after a second physicist received training on the equipment and the hospital began questioning whether the machine had been installed correctly in 2004.

In Missouri, like many states, there is little or no government oversight of radiation therapy. However, The FDA has recently announced plans to increase its oversight of medical radiation. Predictably, this proposal is being opposed by many hospitals and manufacturers of radiation equipment.

Notably, the president of the Missouri hospital where these errors occurred urged the FDA to go even further in regulating radiation therapy. His statement was as follows:

“The initiative should be broadened to include regulation of medical radiation therapy as well. We have also learned that the incident here at CoxHealth is, unfortunately, not an isolated occurrence. Rather, similar instances of medical overradiation have occurred at other hospitals throughout the country. Without increased regulation and oversight, these instances of medical overradiation will likely continue.”

Patients have been receiving sometimes fatal radiation overdoses during medical treatments. Our Atlanta medical malpractice attorneys have been aware of this problem for years. The issue was recently highlighted by the news media in several articles. Now, federal regulators are taking note and proposing regulations which will begin requiring manufacturers of high-grade medical imaging machines to include safety controls that prevent patients from receiving excessive radiation doses.

The Food and Drug Administration action will focus on high-tech machines such as CT scanners, which allow doctors to make lifesaving diagnoses, but also expose patients to high doses of cancer-causing radiation. The proposed new regulations are part of a multipronged effort to address reports of acute injuries as well as reduce lifetime exposure to radiation, which has nearly doubled since 1980.

One new proposal will require manufacturers to install safeguards on machines that automatically notify operators if they are using a higher-than-recommended dose. The FDA is also developing best-practice measures that hospitals and imaging centers will have to meet to retain their scanning accreditation.

According to the FDA, the average American's total radiation exposure has nearly doubled in the last three decades, largely due to CT scans and other imaging tests. Medical radiation now accounts for more than half of the population's total radiation exposure.

The FDA action follows investigations of reports of acute overdoses from CT scanning at Cedars-Sinai Medical Center in Los Angeles. More than 250 patients there were exposed to excessive radiation, with many reporting losing hair and skin redness. Since then the FDA has launched investigations into similar problems at two other California hospitals.

CT scans offer a quick, relatively cheap way to get three-dimensional pictures that give an almost surgical view of the body. Doctors use them to evaluate trauma, belly pain, seizures, chronic headaches and other ailments.

However, CT scans carry a higher risk than older scans. One CT chest scan carries as much radiation as nearly 400 chest X-rays.

The FDA's effort will also be directed at excessive radiation exposure from two other types of imaging: nuclear medicine and fluoroscopy. Nuclear medicine involves injecting nuclear particles into the body to diagnose problems with organs. Fluoroscopy uses a continuous X-ray beam to view body parts in real time, such as when giving epidural injections..

Medical malpractice victims in Georgia are not only injured and killed by negligent health care, but are also victimized by the state via caps on so called non-economic damages. In Georgia, the cap limits these damages to $350,00.00.

Many people have pointed out that this is inherently unfair, especially since the most grievously injured victims are penalized to a greater extent. In effect, the legislature, with help of the governor, decreed that if you, or a loved one is retired or too young to have an earning capacity, the value of your life or that of a loved one, is $350,000.00. Of course thiose who are high wage earners, such as many doctors, would be entitled to a higher recovery in the form of lost income.

This grossly unfair law is currently before the Georgia Supreme Court awaiting an opinion. Yesterday, the Illinois Supreme Court struck down a similar law passed by the Illinois legislature 4 years ago.

The court ruled that the caps on pain and suffering and other non-economic damages, $500,000 per case for doctors and $1 million for hospitals are unconstitutional.

The Illinois Supreme Court’s opinion upheld a 2007 ruling by lower court determining that the law violated the Illinois Constitution’s “separation of powers” clause, essentially finding that lawmakers interfered with the right of juries to determine fair damages.

This ruling was the third time the Illinois Supreme Court has quashed limits on medical malpractice awards, having tossed out similar laws in 1976 and 1997.

The case arose from a malpractice lawsuit filed in 2006 by the family of a girl who suffered brain damage during her delivery at an Illinois hospital.

Medical malpractice has been a hot topic for many years and especially now that certain groups are calling for more restrictions on injured parties as part of health care reform. There has been much false and misleading information placed before the public. But, recently, the advocacy group Americans For Insurance Reform addressed the issue by presenting factual data. The conclusions are below:

1. Medical malpractice claims and premiums are a tiny percentage of the total costs of health care in this country.

• Medical malpractice payouts are less than one percent of total U.S. health care costs. All “losses” (verdicts, settlements, legal fees, etc.) have stayed under one percent for the last 18 years. Moreover, medical malpractice premiums are less than one percent of total U.S. health care costs as well. Dropping for nearly two decades, malpractice premiums have stayed below one percent of health care costs. Americans for Insurance Reform, “Think Malpractice is Driving Up Health Care Costs? Think Again,” http://www.insurance-reform.org/pr/AIRhealthcosts.pdf.

• The Congressional Budget Office found that “Malpractice costs account for less than 2 percent of [health care] spending.” Congressional Budget Office, Limiting Tort Liability for Medical Malpractice 1, 6 (Jan. 8, 2004).

2. Medical malpractice cases are a tiny percentage of tort cases filed each year and the vast majority settle without litigation.

•Medical malpractice cases account for only about four percent of tort cases. Examining the Work of State Courts, 2005, A National Perspective from the Court Statistics Project (2006) at 29.

•In the Harvard closed claims study, only fifteen percent of claims were decided by trial verdict. Other research shows that 90 percent of cases are settled without jury trial, with some estimates indicating that the figure is as high as 97 percent. Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 17.

3. Contrary to popular myth, few injured patients file lawsuits.

•Between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. National Academy of Sciences Institute of Medicine, “To Err is Human” (1999); Harvard Medical Practice Study (1990).

•At the highest level, the estimated number of medical injuries (in hospitals and otherwise) is more than one million per year; approximately 85,000 malpractice suits are filed annually. “With about ten times as many injuries as malpractice claims, the only conclusion possible is that injured patients rarely file lawsuits.” David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,”59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Brian Ostrom, Neal Kauder & Neil LaFontain, Examining the Work of State Courts (2003) at 23).

4. Medical malpractice claims are not “exploding”.

•According to Public Citizen’s analysis of National Practitioner Data Bank (NPDB) data, between 1991 and 2005, the total number of malpractice payments made on behalf of doctors declined 15.4 percent (with judgments and settlements); the number of malpractice payments per 100,000 Americans dropped more than ten percent. Public Citizen, Congress Watch, The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes, (January 2007).

5. Medical malpractice payouts are far smaller than commonly believed and are declining.

•According to Public Citizen’s analysis of National Practitioner Data Bank (NPDB) data, “The average payment for a medical malpractice verdict in 1991 was $284,896. In 2005, the average was $461,524. Adjusting for inflation, however, shows that the average is actually declining. The 2005 average adjusted for inflation is only $260,890 — a decline of 8 percent since 1991.” Public Citizen, Congress Watch, The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes, (January 2007)

•Public Citizen also found that the total number of malpractice payments made on behalf of doctors, including judgments and settlements, declined 15.4 percent from 2001-2005 (from 16,588 in 2001 to 14,033 in 2005) and “the number of payments per 100,000 people in the U.S. also fell since 2001 – from 5.82 to 4.73 – a decline of 18.6 percent. Since 1991, the number of payments per 100,000 people declined more than 10 percent.”

•Total medical malpractice payouts, for injuries and deaths caused by medical negligence in the nation, have recently hovered between $5 billion and $6 billion annually. This is less than half of what Americans pay for dog and cat food each year. Americans for Insurance Reform, Stable Losses/Unstable Rates, 2007, http://www.insurance-reform.org/StableLosses04.pdf; The Pet Food Institute puts these figures at $13 to $14 billion annually over the past few years. See, http://www.petfoodinstitute.org/reference_pet_data.cfm

Dangerous nurses and healthcare providers may be practicing throughout Georgia. In 1987, Congress ordered federal health officials to create a database of state disciplinary actions against nurses and other health professionals. This database includes the names of those who, among other things, have been found to have committed physical, mental and sexual abuse of patients.

While each state is required to maintain a database, no nationally available database has ben created. When a hospital or temporary agency wants to hire a nurse, there's no easy way to check whether the person has abused a patient or engaged in dangerous conduct elsewhere in the country.

This information was supposed to be added to a database of similar information about doctors which was made available to hospitals and other eligible health employers in 1990. But this has not happened.

As it stands now, only federal and state agencies and health plans, such as HMOs, are allowed access to the information about nurses. Incredibly, hospitals and nursing homes cannot access this critical data.

The federal government has announced that this information should be available on a nationwide basis to hospitals and other health facilities within a year. There is one major obstacle. Many hospitals and healthcare facilities rely on temporary agencies for nursing and other employees. Under the law, temporary agencies would be allowed to search a nurse's background only if they were designated as agents of particular hospitals or other facility. It is anticipated that these institutions will be unwilling to designate multiple staffing firms as their agents.

Unfortunately, while these problems are being debated by government officials, many innocent patients may become victims of dangerous perpetrators whose proclivities are known to the government, but unavailable to the very institutions which hire them and place them in positions of trust. This is an outrageous situation which must be corrected immediately. One can only hope that the government officials charged with this duty will take it seriously and proceed with the greatest of speed.

Medical malpractice is a serious problem in Georgia and the United States. While limits on recoveries for innocent victims is being pushed by large insurance companies, there are many issues that are being ignored. One is the lack of information available to the public about incompetent doctors and hospitals.

More than 20 years ago, Congress created a federal database to track incompetent and unprofessional health-care practitioners. The database, compiled by the U.S. Department of Health and Human Services, includes some 460,000 records of malpractice lawsuits whose judgments total $69.7 billion. It includes information on 23,788 patient deaths, 8,100 major permanent injuries and 3,896 cases that resulted in quadriplegics, brain damage or lifelong care.

This is information that is critical to patients selecting doctors and hospitals. However, much of the data is closed to the public. Although the full database is open to hospitals, managed care organizations and state licensing agencies, the public can view only limited information, such as the lawsuit's allegation and the patient's health. The doctors' names remain hidden.

For years, the American Medical Association, an organization supposedly having patient welfare as one of its purposes, has argued that the data bank should remain closed to the public.

Dr. Sidney Wolfe, is a physician and director of the Health Research Group for Public Citizen, a nonprofit consumer advocacy organization. He argues that this information is crucial for the public and that efforts to suppress it are merely intended to protect doctors.

He points out that in the state of Oklahoma alone, the data contains among other things, 28 lawsuits concerning a procedure on a wrong body part with a total of $2.9 million in payments, nine suits concerning sexual misconduct for a total of $166,000 in payments, and three suits concerned assault and battery.

This is information that the public needs to have. Without it, you or a loved one may be unknowingly treated by a doctor who is incompetent or has criminally assaulted a patient.

As Congress debates providing and paying for health care, another huge "cost" must not be forgotten: the cost of medical errors and medical negligence.

According to conservative estimates, 98,000 Americans annually die because of preventable medical negligence. Many more suffer life-changing injuries.

A terrific website, 98,000 Reasons, describes many of these stories of preventable injuries and deaths. Please visit it, as reducing medical errors saves innocent lives, and reduces costs of health care.

Medical malpractice has long been condoned if perpetrated against a service member. Now, in an effort to rectify this grossly unfair situation involving those serving their country, members of the House Judiciary Committee forwarded a bill to the full House of Representatives which would permit servicemembers to sue the military in certain cases of medical malpractice.

While this is a step in the right direction, it appears doubtful the full House and Senate (a companion bill, sponsored by Sen. Charles Schumer, is working through the Senate) will take action to pass this bill. The bill would allow civil lawsuits against military doctors in cases of clear medical negligence, something that's currently prohibited under federal law.

The current prohibition on servicemembers is based upon the Feres Doctrine, a legal precedent from the 1947 death of active-duty soldier Lt. Rudolph Feres who was killed in a barracks fire. His widow sued the Army for negligence, claiming the facility had a defective heating plant and substandard fire safety controls. But the Supreme Court ruled that servicemembers performing military duties do not fall under federal rules allowing lawsuits against the government.

The House bill is named for Carmelo Rodriguez, a Marine Corps sergeant who died in January 2007 after battle with skin cancer. Military doctors first diagnosed the cancer 10 years earlier, but a series of military doctors failed to warn him of the lillness for nearly eight years. When his family tried to sue to force changes in medical notifications, the courts turned them away.

Critics of Hinchey's bill say the measure opens the door for time-consuming, frivolous lawsuits and will discourage potential recruits from joining the military.

But in a statement yesterday, the American Association for Justice called the proposal a basic issue of fairness.

“Currently, the law unfairly treats our brave servicemen and women as second-class citizens,” said Anthony Tarricone, president of the association. “But this legislation would restore their basic legal rights and protect them from injuries they receive as a result of preventable medical errors.”