Georgia Injury Lawyer Blog

A bone growth agent used in thousands of spinal fusion surgeries for neck pain has been linked to complications and higher cost, according to the first nationwide study of the product. Spinal fusion is one option for people with back and neck pain, although some researchers have questioned how well it works.

In a spinal fusion, a surgeon removes the disc between two vertebrae and replaces it with the patient’s own bone, BMP or another product. If successful, new bone grows and fuses the vertebrae into one piece, stabilizing the spine.

Safety questions arose last year about the protein product, BMP, when used in fusion surgeries in the neck region, a use not approved by federal regulators. Doctors are allowed to use products such as this for purposes for which they have not been approved. The lead author of the study which appears in the latest issue of the Journal of the American Medical Association reported that some of these complications are life-threatening because the neck is such a sensitive area.

Smaller studies have shown BMP promotes better healing of the bone and fewer repeat surgeries to fix failed spinal fusions. The product also makes it unnecessary to surgically harvest the patient’s own bone from the shin or hip for a graft. However, the powerful protein can make bone grow in unwanted places if it’s incorrectly used. There are no official guidelines for its use.

For the new study, researchers looked at records of more than 325,000 spinal fusions from 2002 to 2006. When BMP was used in the front of the neck region of the spine, there were complications in 7 percent of patients before they left the hospital, a 50 percent higher rate compared to when the product wasn’t used.

Elsewhere in the spine, however, BMP led to no more complications than other spinal fusion treatments.

Surgeons have rapidly adopted BMP since the Food and Drug Administration approved it in 2002 for back surgeries. Doctors used it in 17,623 spinal fusions in 2006, nearly 1 in 4 cases, the researchers found.

Last year, the FDA warned doctors about 38 reports of complications when the treatment was used in the neck region of the spine. For unknown reasons, some patients had swelling after surgery, and that caused problems with breathing and swallowing.

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Posted In: Dangerous Drugs , Medical Malpractice , Pharmaceutical Manufacturer Liability , Products Liability

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Our Atlanta medical malpractice attorneys frequently see cases in which the practices engaged in by physicians are questionable. Yet in many instances the practices are so egregious that one has to wonder how the medical establishment could allow them to occur or continue. Yesterday, the New York Times reported just such a situation at a VA Hospital in Philadelphia.

In a common treatment for prostate cancer, doctors implant dozens of radioactive seeds in the prostate to attack the cancerous cells. But, according to reports, when Dr. Gary D. Kao treated one patient at the VA hospital in Philadelphia, his aim was more than a little off.

Most of the seeds, 40 in all, were implanted in the patient’s healthy bladder, not the prostate.
It was an egregious error, but according to the report, with the help of federal regulators Dr. Kao, was able to conceal his mistake. He was allowed to rewrite his operative note to match the number of seeds in the prostate.

The patient had to undergo a second implant which also failed, resulting in an unintended dose to the rectum. Regulators knew nothing of this second mistake because no one reported it.
The report disclosed that two years later, in 2005, Dr. Kao again changed an operative note after putting half the seeds in the wrong organ. Once again, regulators did not object.

This was only the tip of the iceberg. The Cancer unit at the VA Philadelphia hospital operated with virtually no outside scrutiny and botched 92 of 116 cancer treatments over a span of more than six years , and then concealed the errors.

The physicians in the unit continued implants for a year even though the equipment that measured whether patients received the proper radiation dose was broken. The radiation safety committee at the Veterans Affairs hospital knew of this problem but took no action.

The Times concluded that the 92 implant errors resulted from a systemwide failure in which none of the safeguards that were supposed to protect veterans from poor medical care worked. Peer review, in which physicians examine one another’s work, did not exist in the unit. The V.A.’s radiation safety program; the Nuclear Regulatory Commission, which regulates the use of all nuclear materials; and the Joint Commission, a group that accredited the hospital, all failed to intervene.

Virtually none of the substandard implants in Philadelphia were reported to the nuclear commission, meaning errors went uninvestigated for weeks, months and sometimes years. During that time, many patients did not know that their cancer treatments were flawed.

Many of the patients, all veterans, suffered severe pain and other problems, such as incontinence, as a result of these errors.

This report comes on the heels of another disclosure some months ago that VA Hospitals were failing to properly sterilize medical equipment, exposing veterans to the risk of infectious diseases such as hepatitis and AIDS. Surely, our veterans deserve better.

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Posted In: Medical Malpractice

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Medical malpractice claims in Georgia are constantly coming under fire from insurance companies and doctors who allege they raise the costs of medical care through increased insurance costs to doctors. For many years our Atlanta based attorneys have watched as these large insurance companies and medical groups spend massive sums to influence politicians to enact legislation eroding the rights of innocent victims of medical negligence.

A recent study in New York has exposed these false arguments.Data from the National Practitioner Data Bank show 1,882 medical malpractice payments in New York for $743 million in 2008, down from 2,417 payments for almost $823 million two years earlier. Yet, the premiums doctors pay for insurance have not been reduced. The report Friday urged an independent review of insurers' premium-setting practices.

As many other studies have shown, less than 2 percent of the entire cost of the medical system is from malpractice. The Center for Medical Consumers has stated that malpractice insurance premiums are not a major contributor to the health care cost of inflation. Yet, large insurance companies and doctors groups continue to spread this false information.

In New York, consumer advocates are urging state lawmakers to allow victims and families to sue within 30 months after a medical error is discovered, instead of 30 months after the error is made, saying it is a particular issue with cancer cases and pathology reports. Current New York law, and similar laws in Georgia provide doctors an incentive to hide their mistakes from patients.

Predictably, physicians and insurance companies have opposed any legislation to revise the statute of limitations, while at the same time pushing for caps on awards for pain and suffering. Currently in Georgia, all non economic damages from medical malpractice are capped at $350,000.00. This has led to many horrible injustices and essentially created a system whereby the wealthy have greater recovery rights than those less fortunate.

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Over the years our Georgia medical malpractice lawyers have been involved in medical negligence lawsuits involving missing or improperly documented medical records. In an effort to avoid such problems the federal government is pressuring medical professionals and facilities to adopt electronic record keeping. While this has the potential to eliminate life threatening record keeping errors, there are also potential dangers associated with this system.

Electronic medical records allow healthcare professionals to easily document medical findings. With just a few keystrokes, a physician or PA can describe a full medical exam using predesigned templates. However, using boilerplate templates for every patient can have serious shortfalls. Reviewing pages of repetitive documentation can be time consuming and lead to increased chances of missing important findings. Overlooking important findings in records has in our experience been a leading cause of harm to patients.

The use of templates can also result in the wrong template being used for a particular condition or patient. It has been reported that a neurologist who had just converted to electronic medical records discovered that the template documented a finding of orientation to time, place, and person for a one year old. Children this young cannot be tested in this manner.

Other advantages of electronic medical records include the ability to catch medication errors, check for adverse drug interactions, and track test results and schedule follow ups. One surgeon recently demonstrated his practices electronic record system to one of our attorneys. He extolled the ability to have all patient records and test results available at the practices many offices and the ability to have the records accessible on his lap top computer so he could prepare for the next days surgeries from his home.

Electronic medical records can increase the safety of patients and make health care more efficient. However, care should be taken to ensure that all users are properly trained.

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As Georgia injury lawyers, we often get calls about pharmacy mistakes and prescription errors being committed by medical providers, including drug stores. Many times, the mistakes are caught before any damage is done; however, sometimes serious injury or death occurs. Recently, we read about a case where a pharmacist at a Wal-Mart store allegedly mislabeled a pill bottle, resulting in a woman in her 70's taking twice the recommended and prescribed dose of a blood pressure medication. As a result, she has suffered serious injury and almost died. Apparently the woman’s physician quickly discovered the pharmacy error but not before she suffered permanent heart damage and incurred substantial medical expenses.

In 2006, it was estimated that more than 1.5 million Americans were injured every year by drug errors in hospitals, nursing homes and doctor’s offices. Even as far back as 1999, it was estimated that at least 7,000 people die annually from drug errors. There are many reasons for the errors that occur. Most prescriptions are hand written and in some cases are difficult to read. In addition, many times there are bad interactions between different drugs a patient may be taking. Technology alone has the potential to eliminate some of these errors but industry and government has been slow to implement a comprehensive plan, including E-prescribing. For now, consumers must be aggressive in questioning doctors, nurses and pharmacists about their medications whether they are looking out for a friend or loved one in a nursing home or hospital or handling their own prescription medication at home.

If you or a loved one have been seriously injured as a result of drug store errors or prescription mis-labeling, contact an experienced Georgia injury lawyer at Finch McCranie, LLP.

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Posted In: Dangerous Drugs , Elder Abuse And Nursing Home Negligence , Medical Malpractice , Wrongful Death

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Our attorneys have seen many cases in which patients are injured, sometimes severely, by healthcare professional in Georgia hospitals committing careless and preventable errors or by medical device defects.

The ECRI Institute recently released its annual list of top hospital medical device hazards for last year. The ECRI Institute, a nonprofit organization, dedicated to bringing the discipline of applied scientific research to discover which medical procedures, devices, drugs, and processes are best, in an effort to improve patient care. It is one of only a handful of organizations designated as both a Collaborating Center of the World Health Organization and an Evidence-Based Practice Center by the U.S. Agency for Healthcare Research and Quality.

Updated annually, the list is based on problems reported to and investigated by ECRI and includes detailed descriptions and information on how to avoid such hazards.

The ECRI Institute’s 2008 list of most dangerous medical device hazards include:

1) Needlesticks and Other Sharps Injuries. Intravenous and other injection devices can cause injuries to physicians, patients, laboratory personnel, pharmacy staff, housekeeping personnel, and waste handlers by an exposed needle or other sharp. Consequences include serious cuts and exposure to blood borne pathogens such as HIV or the hepatitis B or C virus.

2) Air Embolism from Contrast Media Injectors. X-ray imaging of blood vessels where contrast media is injected into the patients vasculature and can create the risk of injecting air, potentially resulting in a fatal embolism.

3) Retained Devices and Un-retrieved Fragments Left in Patients: In these cases an entire device is left behind in surgery or a portion of a device breaks away within the patient. Sometimes, surgical items are intentionally placed in the patient, but can pose the risk of infection or burn hazards when the patient undergoes MRI examination.

4) Surgical Fires: Medical devices or other components can ignite, such as electrosurgical units; electrocautery devices; lasers and related disposable components; oxygen, which can ignite easily and burn intensely; and fuel, such as from fenestration towels and gowns.

5) Anesthesia Hazards due to Inadequate Pre-Use Inspection: These include serious problems such as misconnected breathing circuits, ventilator leaks, and empty gas cylinders.

6) Misleading Displays: Ambiguous or counterintuitive displays can create misinterpretation.

7) CT Radiation Dose: High doses can present an increased risk of cancer, possibly linked to 6,000 additional cancers a year, roughly half being fatal.

8) MR Imaging Burns: Patients become burned from the Magnetic Resonance Imaging technology.

9) Fiberoptic Light-Source Burns: Light sources used in endoscopes, retractors, and headlamps can cause burns to staff and patients from the light itself or from its heated cable connections.

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Posted In: Medical Malpractice , Products Liability

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As a Georgia injury lawyer I continue to be outraged by the “tort reform” laws passed by the mostly Republican, pro business legislature in this State. Most ordinary citizens, Republican and Democrat, have no idea what the medical profession, insurance industry and Georgia politicians have done to limit, if not eliminate their ability to be fully compensated in the event that they are injured and damaged as a result of the negligence of someone. Only when they are injured as a result of automobile accidents, tractor trailer accidents or medical malpractice, do they find out how their rights have been seriously curtailed or eliminated. Only then do they become outraged. Unfortunately, by then it is too late.
A prime example of the damage done by the Georgia Legislature is the case of Cheon Park, a retired, 59-year old restaurant owner who fell from a ladder at his home in 2006. After falling, he was taken to WellStar Douglas Hospital, Park complaining of neck, shoulder and pelvis pain. He was x-rayed, treated for a dislocated shoulder and discharged that same day. Later that day, Park’s pain grew worse. He began showing signs of neurological damage and was taken to Grady Hospital where they found massive damage to his spine-damage that left him a quadriplegic. Park sued WellStar for medical negligence, challenging the $350,000.00 cap on non-economic damages that was approved as part of Georgia’s Tort Reform in 2005. Non-economic damages are compensable for intangible injuries, such as pain and suffering, disfigurement, and loss of the enjoyment of life. In April 2008, Fulton County Judge Marvin Arrington, Sr. overturned the $350,000.00 cap, on the basis that the statute did not guarantee “equal protection” and reasonable compensation for people in Park’s situation. WellStar appealed the decision to the Supreme Court of Georgia; however, four (4) days before they were due in Court, WellStar withdrew the appeal and settled the case with Park for an undisclosed sum. As a result, the $350,000.00 cap remains in place because no case has yet to make it through the appellate system to have the statute declared unconstitutional. Hopefully, the right case will eventually reach Georgia’s highest court so that people who are injured by medical negligence through no fault of their own can be awarded enough damages to make them whole to the extent that can be accomplished with money.

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Posted In: Automobile Accidents , Medical Malpractice , Truck and Tractor Trailer Accidents , Workers Compensation

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Our Atlanta lawyers interview potential clients on a daily basis concerning their injuries and hospitalizations. Many times, potential clients, even those who have been hospitalized for long periods, cannot tell us the name or names of the doctors who treated them in the hospital. Now, a recent survey has shown that this is a common occurrence. According to the survey, hospital patients are rarely able to identify their doctors by name or to describe their roles in the patients’ care.

Researchers at the University of Chicago interviewed 2,807 adults admitted to the school’s hospital over a 15-month period. The patients were asked about the roles of the various physicians attending to them and to name the doctors on those teams. The medical teams consisted of three to four people.

Amazingly, 75 % of the patients surveyed were unable to name a single doctor who participated in their care. Of the 25 % who offered a name, only 40 % were correct. The patients who claimed to understand the roles of their doctors were more likely to correctly identify at least one of their doctors.

In the study, patients able to name one of their physicians also were more likely to be unsatisfied with their care.

We encourage all patients to not only ascertain the identity of the doctors treating them in a hospital, but to actively question the doctors and healthcare personal about their treatment decisions.

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Posted In: Medical Malpractice

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Georgia injury lawyers are acutely aware of the so-called “tort reform” changes in the law which has limited and in some cases eliminated the rights of victims of medical malpractice. Unfortunately, most Georgia citizens are unaware that since 2005, emergency rooms have been a place where there is no liability for injuries caused by careless healthcare providers. Current Georgia law makes it virtually impossible for an injured patient to seek accountability in the Courts because it requires an injured victim to show by “clear and convincing evidence” that the medical provider acted with “gross negligence”. For three (3) years, some lawmakers from both parties have attempted to pass a Bill that would do away with the “gross negligence” and allow patients with severe cases to go to court. Lets hope that this will be the year that victims of emergency room medical malpractice will have their rights restored.

If you or a loved one have been injured as a result of medical malpractice, call the injury attorneys at Finch McCranie, LLP at (800) 228-9159 to learn about your rights.

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The Governor of Georgia has proposed legislation endorsing a system that the Government Accountability Office (GAO) castigated in a report issued yesterday. The GAO concluded that almost twenty years after Congress directed that all high-tech medical devices be subjected to a thorough review by the Food and Drug Administration (FDA), before being placed on the market, the FDA still approves most such devices after minimal testing.

This report is especially timely since the Bush administration has long argued that FDA testing and approval shields the drug and medical device manufacturers from civil liability. The Governor of Georgia has just proposed legislation which would give similar protections to these drug and device makers under Georgia law.

The GAO report shows that the system is “fixed” to provide manufacturers speedy approval so that dangerous medical devices can be placed on the market with no recourse for innocent persons maimed or killed by the products.

In the report, the GAO recommended that the FDA. fulfill promises it made 14 years ago to fix its system for approving complex medical devices. The report was mandated by Congress in legislation passed in 2007 to reform the FD.A..

It also comes at a time when scientific reviewers within the FDA have disclosed that most medical devices are given quick approvals with minimal testing because manufacturers tell the FDA. that the products operate just like older, already-approved devices. These scientists have written letters to both Congress and President-elect Barack Obama seeking significant changes at the FDA. Investigations into their claims are ongoing both at the FDA and in Congress.

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Posted In: Consumer Protection , Dangerous Drugs , Medical Malpractice , Pharmaceutical Manufacturer Liability , Products Liability

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As attorneys representing injury victims of automobile accidents, tractor tailor truck accidents and medical malpractice claims we have had many occasions where the insurance company lawyer contacts our client’s own doctor to talk about the case without our knowledge. Fortunately that conduct is now a violation of law.

The Georgia Supreme Court recently heard a case where the plaintiff sued her husband’s doctor for malpractice. After she produced his medical records from three of his previous doctors, the insurance defense lawyer contacted them informally and asked about the man’s medical condition.
Under state law, once a plaintiff puts his or her medical condition at issue, the defense attorney can informally contact the treating physicians about the plaintiff’s medical condition. But the plaintiff argued that these ex parte conversations violated HIPAA’s provisions requiring notice and consent from the patient before the disclosure medical records. The Supreme Court of Georgia Court agreed and has now held that the insurance defense lawyer’s ex parte communications with the plaintiff’s prior to treating physician violated the privacy rules of the Health Insurance Portability and Accountability Act (HIPAA). In it’s decision the court said:

“We find that HIPPA preempts [state ] law with regard to ex parte communications between defense counsel and plaintiff’s prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians...

“HIPAA... prevents a medical provider from disseminating a patient’s medical information, whether orally or in writing, without obtaining a court order or the patient’s express consent. In other words, HIPAA requires a physician to protect a patient’s health information, unless the patient is given reasonable notice and an opportunity to object...

“Thus, in order for defense counsel to informally interview plaintiff’s treating physicians, they must first obtain a valid authorization, or a protective order, or ensure that the patient has been given notice and an opportunity to object to the ex parte contact, all in compliance with the requirements of HIPAA”.

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Posted In: Automobile Accidents , Medical Malpractice , Truck and Tractor Trailer Accidents

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Abuse of patients in medical or mental facilities is a major problem in the United States. Our attorneys frequently handle cases in which patients have suffered physical or sexual abuse at the hands of facility staff or other patients. These cases are extremely disturbing as the victims are usually some of the most vulnerable and helpless members of society.

A recent article in the Los Angeles times focused upon this issue. According to the article, Psychiatric Solutions Inc. was on its way to becoming the nation's leading provider of private psychiatric care when it purchased Sierra Vista Hospital in Sacramento, Californis in 2005.

The company put its tested business formula into action: Staffing fell. Beds filled up. Profits soared . While the results made investors happy, for some patients, federal records revealed that for patients it proved dangerous and at times deadly.

Incidents revealed in federal reports include that involving Ramona Knapp, 51, who was left fatally brain damaged after hospital workers restrained her improperly, pinning her to the floor.

In March 2007, a 29-year-old woman was mistakenly given six times the prescribed dose of a potent antipsychotic drug. Even after 15 hours, she was too weak to swallow.

The records show that Seven Burton, 55, checked into Sierra Vista Hospital for treatment of alcohol abuse and depression. Upon admission, complained of chest pains. The intake nurse didn't notify a doctor because, as she later told regulators, "he didn't look sick."

Burton was discovered the next morning, facedown on the floor of his room, shaking and sweating. Hospital staff members place him back in bed and paged a psychiatrist, getting no response. Two and a half hours later, a nurse found him blue and not breathing.

An investigation by ProPublica, a public interest news organization, revealed that these incidents at Sierra Vista Hospital are among numerous others involving abuse and neglect at PSI facilities nationwide,
PSI hospitals often fare worse than comparable private hospitals in meeting government standards for patient care, according to an analysis of state and federal inspection reports.

Unfortunately, these incidents are not confined to California or PSI hospitals. Our firm is currently pursuing legal action on behalf of two clients who were assaulted while in mental health facilities here in Georgia. If you or a loved one has been the victim if abuse or assault in a hospital, nursing home, or mental health facility, legal representation should be sought immediately.

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Posted In: Consumer Protection , Elder Abuse And Nursing Home Negligence , Medical Malpractice , Torts

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New federal regulations that restrict Medicare payments to hospitals for the extra care required to treat patients harmed by certain preventable infections and medical errors went into effect on Wednesday, October 1.

The rules adopted by the Centers for Medicare and Medicaid Services (CMS) aims to provide hospitals with a financial incentive to improve patient care.

Under the new regulations, CMS will withhold payments to hospitals for care needed after patients suffer from certain preventable errors or omissions in care. These include hospital acquired urinary tract infections; certain bloodstream infections and select surgical site infections - specifically from coronary artery bypass graft (CABG), certain weight loss surgery (laparoscopic gastric restrictive surgery and gastroeneterostomoy), and orthopedic procedures (spine, neck, shoulder, elbow); serious bed sores; objects left in patients’ bodies following surgery; blood incompatibility; air embolism; deep vein thrombosis/pulmonary embolism (formation/movement of a blood clot) following total knee and hip replacement; falls and trauma (such as burns and electric shock); and extreme blood sugar derangement.

The new regulations include protections to prevent hospitals from billing patients when payments are withheld and to minimize avoidance of patients perceived to be at risk for infections.

Lisa McGiffert, Director of Consumers Union’s Stop Hospital Infection’s campaign stated that “Medicare’s new policy sends a powerful message to hospitals that harming patients will harm their bottom line,” and, “This policy will help prevent needless suffering and deaths and ultimately ensure that the health care taxpayers pay for is safe and effective.”

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Nursing homes care for the elderly and disabled, some of the most vulnerable persons in society. But, a recent report has disturbing news. More than 90 percent of nursing homes were cited for violations of federal health and safety standards last year according to a report issued by the federal government. For-profit nursing homes were more likely to have problems than other types of nursing homes.

The report revealed that about 17 percent of nursing homes had deficiencies that caused actual harm or immediate jeopardy to patients. Problems included infected bedsores, medication mix-ups, poor nutrition and abuse and neglect of patients.

Inspectors received 37,150 complaints about conditions in nursing homes last year, and they substantiated 39 percent of them.. About one-fifth of the complaints verified by federal and state authorities involved the abuse or neglect of patients.

The report disclosed that 94 percent of for-profit nursing homes were cited for deficiencies last year, compared with 88 percent of nonprofit homes and 91 percent of government homes.
According to the report, investigators found cases in which nursing homes billed Medicare and Medicaid for services that were not provided, or were so wholly deficient that they amounted to no care at all.

More than 1.5 million people live in the nation’s 15,000 nursing homes. The homes are typically inspected once a year and must meet federal standards as a condition of participating in Medicaid and Medicare, which cover more than two-thirds of their residents, at a cost of more than $75 billion a year.

Deficiency rates varied widely among states. The proportion of nursing homes cited for deficiencies ranged from 76 percent in Rhode Island to 100 percent in Alaska, Idaho, Wyoming and the District of Columbia.

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A new website, The Hospital Compare Web, run by the federal Centers for Medicare and Medicaid Services, shows 80 U.S. hospitals listed as top performers in the mortality rates for patients admitted with heart attack, heart failure or pneumonia. No Georgia hospitals were among the best performers. Nine Georgia hospitals rated worse than national norms on death rates for pneumonia or heart failure. The number of poorly performing hospitals in Georgia was higher than any state other than California.

Mortality rates for hospitals across the nation were disclosed by the federal agency, which is expanding its report cards on the quality of health care. This is the first time consumers are able to compare hospital death rates for patients admitted for three conditions: pneumonia, heart failure and heart attack.

Nationwide, 103 hospitals, including the nine Georgia hospitals, were rated worse than the national average for one or more conditions. Eight of the nine in Georgia were poor performers in pneumonia.

Medicare’s Hospital Compare website provides patient-satisfaction rates for hospitals. The site (www.hospitalcompare.hhs.gov) also gives information about whether hospitals follow appropriate procedures for treating medical conditions, such as giving a beta blocker to a heart-attack patient.

On the expanded Medicare site, the mortality data represent the percent of patients who die within 30 days of being admitted to a hospital for heart attack, heart failure or pneumonia. All patients studied were enrolled in original Medicare, the government insurance program for people 65 and older and the disabled, and received hospital care from July 2006 to June 2007.
The rates are “risk adjusted” so that a hospital will not have a higher rate solely because it admits patients with more severe illnesses. The Centers for Medicare and Medicaid Services also provided an estimate range, similar to a survey’s margin of error.

The nine hospitals in Georgia are : St Francis in Columbus; Phoebe Putnam Memorial in Albany; University Hospital in Augusta; Fairview Park in Dublin; Rockdale Medical Center in Conyers; Tanner Medical Center in Carrollton; Medical Center of Central Georgia in Macon; and, West Georgia Medical center in LaGrange.

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In the July 28 issue of Health Services Research, the US Agency for Healthcare Research and Quality (AHRQ) reported that a recently completed study indicates that employers pay out $1.47 billion each year to cover costs for surgical patients incurred from preventable medical errors. The report analyzed data from a nationwide sample of more than 161,00 adult patients who underwent surgery in 2001 and 2002 and were insured by plans provided through their places of employment.

The study focused on 14 preventable errors which included acute respiratory failure, technical problems, infections, pulmonary and vascular problems, metabolic problems, wound problems, and nursing events.

The results revealed that respiratory failure and infections were the most costly. Insurers paid $28,218 and $19,480 extra for surgical patients who experienced these problems as opposed to similar patients who did not. Other costs included $12,196 for nursing events, $11,797 for metabolic events, $7,838 for pulmonary and vascular events and $1,426 for wound problems.

In the group studied, about 1 in 10 deaths occurring within 90 days of surgery were caused by a preventable error.

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The Massachusetts Supreme Judicial Court affirmed a $328,135 jury award to a widow and her son based on her husband's lost chance of recovery resulting from a doctor's negligence in not treating his stomach cancer. This ruling based upon the theory of “loss of chance” damages is being applauded by plaintiffs’lawyers.

The court held that the family could recover even though the victim had less than a 50-percent chance of survival when he first sought treatment. The "loss of chance" doctrine eases the burden for plaintiffs. Under traditional malpractice rules, doctors may only be held liable if their negligence was a substantial factor in the injury or death. Under the "loss of chance" doctrine, a doctor can be liable if his failure to diagnose reduced the patient's chance of survival.
The jury in the case found that the deceased was suffering from stage 2 adenocarcinoma at the time of his first visit to his doctor, who examined him and prescribed over-the-counter medication. A gastroenterologist who testified as an expert for the defense told the jury that stage 2 stomach cancer has a survival rate of 25 to 40 percent.

In its decision, the Massachusetts court noted that a majority of courts which have consider "loss of chance" damages have accepted the doctrine. These states include Arizona, Connecticut, Kansas, Illinois, Indiana, Iowa, Louisiana, Michigan, Missouri, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Washington, West Virginia, Wisconsin and Wyoming. The District of Columbia has also approved "loss of chance" damages.

In Michigan and South Dakota, the legislatures have since passed statutes to preclude "loss of chance" actions where the opportunity to survive is less than 50 percent.

The highest courts in Florida, Kentucky, Idaho, Maryland, Minnesota, Mississippi, New Hampshire, Tennessee, Texas, South Carolina and Vermont, have rejected the doctrine.

The Georgia Court of Appeals appears to he adopted the “loss of chance” doctrine in at least two cases. In Richmond County Hospital Authority Operating University Hospital v. Dickerson, 182 Ga. App. 601, 356 S.E.2d 548(1987), the court held that expert medical testimony that a patient’s chances of survival, even with surgery, were less than 50%, did not preclude a finding of causation. In Dowling v.Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993), the Court of Appeals noted that while a wrongful death claim could not include a recovery for “loss of chance,” the claim brought by an estate could bring this theory of recovery.

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Posted In: Medical Malpractice , Trial Techniques

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We have previously written about the federal government’s new policy restricting Medicare payments to hospitals for the extra care required to treat patients harmed by certain preventable infections and medical errors. Now the federal government is expanding the program in an attempt to to provide hospitals with a financial incentive to improve patient care.

Under the expanded policy, Medicare will not make payments to hospitals for care needed after patients suffer from certain surgical site infections (specifically for total knee replacement, laparascopic gastric bypass and gastroeneterostomoy, and ligation and stripping of varicose veins); deep vein thrombosis/pulmonary embolism (formation/movement of a blood clot); and extreme blood sugar derangement.

Medicare considered adding a number of other hospital acquired conditions to the nonpayment list: staphylococcus aureus septicemia (bloodstream infection); Clostridium difficile associated disease (a bacterium that causes severe diarrhea and more serious intestinal conditions such as colitis); Legionnaires’ disease (a type of pneumonia caused by a specific bacterium); Iatrogenic pneumothorax (collapse of the lung) delirium; and ventilator-associated pneumonia. However, none of these hospital acquired conditions were included in the final nonpayment rules just issued by the agency to be implemented on October 1, 2009.

Last year, Medicare adopted rules to begin the nonpayment policy for certain hospital acquired conditions beginning October 1, 2008. These initial nonpayment rules cover certain urinary tract infections, staph aureaus bloodstream infections, and four other hospital errors unrelated to infections: serious bed sores, objects left in patients’ bodies following surgery, blood incompatibility, and air embolism.

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A baby in a Corpus Christi, Texas, hospital neonatal intensive care unit has died after receiving an overdose of the blood thinner heparin. The baby was one of up to 17 babies in a neonatal intensive care unit receiving overdoses heparin. Heparin is an anticoagulant often used to clean the IVs of patients and prevent blood clots from forming in the lines.

The problem with heparin overdoses of infants in hospitals entered the public arena last year when the twins of actor Dennis Quaid almost died after receiving heparin overdoses at a Los Angeles hospital. Since that time, Quaid has become an outspoken advocate of better controls in hospitals to prevent medication errors.

According to reports, nurses discovered the problem Sunday -- two days after the medication is believed to have been first administered. A preliminary investigation concluded that the error occurred during the mixing process within the hospital pharmacy.

With the large amount of press that has been given to these types of medication errors during the last year, one has to ask why the hospital did not have procedures in place to ensure that the error did not occur, and why it took so long for it to be discovered.

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The World Health Organization issued its first guidelines on Tuesday aimed at reducing complications and deaths from the rising numbers of operations now being performed. Many who read the checklist will react by wondering why hospitals and surgeons have not been doing this for years.

The guidelines are a list of simple safety checks that the health organization said could halve the rate of surgical complications. The list is intended to improve anesthetic safety practices, avoid infections and improve communication among members of surgical teams.

One guideline calls for all members of the masked surgical team to identify themselves and their roles and ask simple questions like, “Does everyone agree that this is Patient X, undergoing a hernia repair?”

Other recommendations call for marking the correct site for surgery to avoid operating on the wrong patient or performing the wrong procedure; giving an antibiotic within 60 minutes of making an incision, to reduce infections; checking for allergies to drugs; inserting two intravenous lines for operations involving substantial blood loss; and counting sponges and needles to ensure that none are left in a patient.

The surgical guidelines grew out of a similar checklist aimed at reducing infections in hospitals. The infection guidelines were developed by Dr. Peter J. Pronovost of Johns Hopkins University, who borrowed the idea from the aviation industry.

Three countries — Britain, Ireland and Jordan — have said they will put the surgery guidelines in force in all hospitals, Professional groups endorsing checklists include the American College of Surgeons, the American Society of Anesthesiology and the Association of Perioperative Registered Nurses.

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According to Healthgrades, an independent health care ratings company, 247,662 patients studied between 2003 and 2005 died from potentially preventable problems. The Institute of Medicine estimates that 1.5 million patients every year suffer from mistakes with medications.

People can sue for damages under state law if they're harmed by drugs and medical products, but the Bush administration argues that states have no right to fault a company for selling a product that has been reviewed and approved by the federal government.

"Blocking such lawsuits, in my view, would do great harm to the public health," Dr. Aaron S. Kesselheim, an internal medicine physician at Brigham & Women's Hospital in Boston and an instructor at Harvard Medical School, said in a statement.

New England Journal of Medicine Editor Gregory Curfman noted the case of Vioxx, a drug used to treat arthritis pain. Vioxx was approved by the FDA in 1998, but people later learned it could cause heart attack, stroke or cardiovascular problems. In 2002, the Vioxx label was revised to reflect those risks and in 2004, it was pulled from the market.

On Wednesday, Curfman said that "preemption of common-law tort actions against drug and medical device companies is ill-advised and will result in less safe medical products for the American people."

Curfman stated that the drugs Avandia, approved by the FDA in 1999 for treating Type 2 diabetes, and Trasylol, approved in 1993 to control bleeding during heart surgery, also show how researchers sometimes find out after the fact what's wrong with the drugs. Avandia remains on the market -- with altered warning labels -- since researchers found in 2007 that it is associated with an increased risk of cardiovascular events.
"It is essential that a drug's safety continue to be carefully monitored during the post-marketing period, because we know that serious safety issues may come to light only after a drug has entered the market," Curfman said.

In the case of Heparin, Baxter Healthcare made efforts to change the drug's labels after three infants at a hospital in Indianapolis died in September 2006. This was the same mix-up that threatened the life of the twins of actor Dennis Quaid. But Baxter's efforts to warn hospitals and submit label changes to the FDA progressed slowly and Baxter failed to recall the bottles still on the market with the old labels.

"Like many Americans, I believed that a big problem in our country was frivolous lawsuits," Quaid testified before Congress. "But now, I know that the courts are often the only path to justice for families that are harmed by the pharmaceutical industry and medical errors."

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Our Atlanta personal injury lawyers constantly hear calls from doctors and politicians to limit the rights of recovery of innocent patients injured by medical negligence. Often, the rights of these innocent patients are sacrificed for the monetary benefit of physicians and big insurance companies. One need look no further than the so called “tort reform” package passed by the Georgia legislature in 2005 and later signed into law by Governor Perdue.

Doctors are quick to support this erosion of rights for patients until it happens to them or their loved ones.

An example is a Charleston, West Virginia physician who has filed a medical malpractice lawsuit against two other doctors and a hospital, alleging negligence and improper treatment when he needed abdominal surgery.

The physician, a gynecologist, was admitted to the hospital in April and underwent abdominal surgery, according to the lawsuit. The lawsuit contends that the hospital and physicians failed to provide adequate, proper and safe medical care, advice, assessment, monitoring and treatment; and, they also failed to perform an appropriate and safe surgical procedure.

The lawsuit alleges that after surgery, the physician developed an infection. His condition deteriorated to the point where he developed severe and debilitating abdominal pain, decreased consciousness and overwhelming septic shock, according to the complaint. It further alleges that his physical condition was allowed to deteriorate to a point where he required mechanical ventilation and additional surgeries.
According to the complaint the physician suffered severe physical injury, incurred medical bills, suffered physical and mental pain, emotional distress and will suffer those in the future, as well as permanent disfigurement and disability, and lost income.

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MRSA is a staph becteria which has been in the news in recent years as serious problems have been reported in hospitals and other health care facilities. Staph bacteria, even those that aren't resistant to antibiotics, have long caused serious infections.

In the 1960s, the first reports surfaced of staph infections that had stopped responding to the antibiotic methicillin. Over the decades, those strains have spread, and the germs have developed resistance to other drugs, largely in hospitals where they infect patients weakened by disease or made vulnerable through surgical wounds and catheters.

MRSA still poses the greatest threat in hospitals, where strains are usually genetically different and, because of antibiotic use, more difficult to kill than those circulating out in the community. About 85 percent of life-threatening, invasive MRSA infections involve people who have been hospitalized, lived in a nursing home or been treated in some other health care facility.

During the 1980s, doctors began finding cases of MRSA in people who hadn't spent time in health care settings. Unlike the strains found in hospitals, MRSA in the community tended to cause skin infections — pus-filled pimples and boils.

Community MRSA still responds to a wider range of antibiotics, and it is unusual for community infections to become life-threatening. However, a study reported last year that more life-threatening community infections occur than previously thought.

The study, estimated MRSA infections in health care facilities and the community killed nearly 19,000 Americans in 2005. Another 94,000 had life-threatening infections.

However, the study found that 85% of life-threatening MRSA infections involved people who have been infected while hospitalized or living in a nursing home. Only about 15 percent happened in the community.
People 65 and older are most likely to suffer invasive MRSA infections of all types, the study found. Black people had invasive MRSA at nearly twice the rate of whites.

The important thing to remember is that those who seek help from a doctor usually are successfully treated. One should not ignore these problems.

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Medical Malpractice takes many forms. In this article, we write about a unusual but dangerous medical error that can cause lifetime consequences for an innocent patient.

Though most everyone knows that sharing needles is unsafe in today’s world, sharing or reusing syringes can be equally dangerous. During any health related injection, a tiny amount of blood is often inadvertently drawn back into a syringe. Most of the time, that does not make a difference because it is common practice to use a new syringe and a new needle for subsequent injections. But in some cases, those involved may change the needle but not the syringe. They then use that syringe to draw more medicine from a vial. By doing so, the small amount of blood that may have been in the dirty syringe inadvertently flows back into the vial contaminating the entire vial.

We read recently in an article in USA Today about a lady by the name of Evelyn McKnight who has founded a patient advocacy group entitled HONOReform. Ms. McKnight apparently was infected with Hepatitis C which has caused her to be chronically fatigued and has compromised the quality of her life significantly. Apparently, she was infected with this disease when someone reused a syringe even though a clean needle was used during a chemotherapy treatment for her cancer. Quite literally, she went to a doctor to be healed but then came away with a life threatening illness. To keep that from happening elsewhere, she has founded the patient advocacy group HONOReform, that uses education and advocacy to try to stop the kind of medical errors by which blood borne diseases can be transmitted. Unfortunately for Ms. McKnight and others who have been given Hepatitis C from unclean syringes, there is no universal cure for the disease. 20% immediately develop acute infections and symptoms ranging from jaundice to fatigue, however, 75 to 85 percent may develop a chronic infection but may not exhibit symptoms for many years. Some may die of liver disease.

Because dangerous medical errors such as the reuse of a syringe can pass on blood borne infections, the work of patient advocacy groups like HONOReform obviously is important in educating the public and the medical community about this form of medical malpractice. In today’s world, it is inexcusable to reuse syringes because deadly diseases can be passed on to the innocent. One would think that this lesson would have been learned with respect to syringes but apparently there are still those who believe that only needles need to be replaced. This type of medical error can have lifelong and profound consequences as is reflected in Ms. McKnight’s case. We applaud the work of HONOReform in addressing it.

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Lasik vision correction surgery has been performed in the United States for almost ten years. It has become a massive business with specialized centers opening in most markets and advertising freedom from glasses. However, not everyone's a good candidate and some suffer life-changing side effects — lost vision, dry eye, night-vision problems.

Today, the Food and Drug Administration is beginning a major new effort to see if warnings about the risks are strong enough. The FDA estimates that approximately 5 percent of patients are dissatisfied, but be more specific due to the lack of data. The FDA is now working with eye surgeons in a major study expected to enroll hundreds of Lasik patients to try to better understand who has bad outcomes and exactly what their complaints are.

About 7.6 million Americans have undergone some form of laser vision correction, including the Lasik procedure. In performing the Lasik procedure, doctors cut a flap in the cornea — the clear covering of the eye— aim a laser underneath it and zap to reshape the cornea for sharper sight.

The vast majority, 95 percent, of patients see more clearly after Lasik. However, some patients have severe complications that leave poor vision. Other side effects, such as dry eye can range from an annoyance to so severe that people suffer intense pain and need surgery to retain what little moisture their eyes form.

Dry eye is common even among people who never have eye surgery, and increases as people age. Solomon says 31 percent of Lasik patients have some degree of it before the surgery, and that about 5 percent worsen afterwards.

The FDA has long known of those side effects, and thus for years has a Web site with warnings for Lasik patients and required that doctors give every potential patient a brochure outlining risks..

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An article in the New England Journal of Medicine, warns that the entry of big companies like Microsoft and Google into the field of personal health records could drastically alter the practice of clinical research and raise new challenges to the privacy of patient records.

The authors are proponents of the benefits of electronic patient records to improve care and help individuals make smarter health decisions. But their concern is that the medical profession and policymakers have not begun to understand the implications of companies like Microsoft and Google becoming the hosts for patient information in their data centers.

Today, most patient records remain within the health system. The Health Insurance Portability and Accountability Act, or HIPAA, is the main law that regulates personal data handling and patient privacy.

Microsoft and Google have recently begun offering web-based personal health records. But as noted in the article, these companies are not bound HIPPA.

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An analysis of 41 million Medicare patient records, released April 8 by HealthGrades, a health care ratings organization, found that patients treated at top-performing hospitals were, on average, 43 percent less likely to experience one or more medical errors than patients at the poorest-performing hospitals.

From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study.

The overall medical error rate was about 3 percent for all Medicare patients, which works out to about 1.1 million patient safety incidents during the three years included in the analysis.

Among the other findings:

Patients who experienced a patient safety incident had a 20 percent chance of dying as a result of the incident.

The overall death rate among patients who experienced one or more patient safety incidents fell by almost 5 percent between 2004 and 2006.

Over that time, there were increases in post-operative respiratory failure, post-operative pulmonary embolism or deep vein thrombosis, post-operative sepsis (blood infection), and post-operative abdominal wound separation/splitting.

The most common types of medical errors were bed sores, failure to rescue, and post-operative respiratory failure. Together, they accounted for 63.4 percent of incidents. Failure to rescue improved 11.1 percent from 2004 to 2006, while both bed sores and post-operative respiratory failure worsened during that time.

Of the 270,491 deaths that occurred among patients who experienced one or more patient safety incidents, 238,337 were potentially preventable, the researchers said.

If all hospitals performed at the level of the top-ranked hospitals, about 220,106 patient safety incidents and 37,214 patient deaths could have been avoided, and about $2 billion could have been saved.

Starting Oct. 1, the federal Centers for Medicare and Medicaid Services will stop reimbursing hospitals for the treatment of eight major preventable errors, including objects left in the body after surgery and certain kinds of post-surgical infections.

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Our Atlanta based medical malpractice lawyers frequently handle cases involving medication errors in hospitals. Some of these cases result in catastrophic damages.

A research study published in the April issue of the journal Pediatrics determined that medicine mix-ups, accidental overdoses and bad drug reactions harm roughly one out of 15 hospitalized children. The number is far higher than earlier estimates and bolsters concerns already heightened by well publicized cases such as the accidental drug overdose of actor Dennis Quaid's newborn twins last November. Quaid's twins got life-threatening heparin overdoses in a Los Angeles hospital.

Researchers found a rate of 11 drug-related harmful events for every 100 hospitalized children. That compares with an earlier estimate of two per 100 hospitalized children, based on traditional detection methods. The rate reflects the fact that some children experienced more than one drug treatment mistake. The new estimate translates to 7.3 percent of hospitalized children, or about 540,000 kids each year, a calculation based on government data.

Simply relying on hospital staffers to report such problems had found less than 4 percent of the problems detected in the new study.
A new monitoring method developed for the study is a list of 15 "triggers" on young patients' charts that suggest possible drug-related harm. It includes use of specific antidotes for drug overdoses, suspicious side effects and certain lab tests.

The researchers said their findings highlight the need for "aggressive, evidence-based prevention strategies to decrease the substantial risk for medication-related harm to our pediatric inpatient population."
Patient safety experts said the problem is most likely even bigger than the study suggests because it involved only a review of selected charts. Also, the study didn't include general community hospitals, where most U.S. children requiring hospitalization are treated.

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On Friday, April 4, 2008, the District Court of Appeals, First District, State of Florida upheld the Florida Office of Insurance Regulation’s suspension of Allstate from writing insurance in the State of Florida.

Allstate had been suspended weeks before for refusing to produce documents during an investigation of the company. The Florida market comprises 17% of Allstate’s national sales.

The court found Allstate guilty of arbitrary reductions of “bodily injury claim payments to its policyholders and beneficiaries by up to 20%.” It also determined that Allstate was engaged in ongoing criminal activity by failing to cooperate with the Office of Insurance Regulation’s investigation of a crime, and that this constituted a danger to the public health, safety or welfare of citizens.

Realizing the seriousness of this, given a pending shareholder lawsuit against the company for other problems resulting from the company’s refusal to turn over the documents in several cases nationally, Allstate posted 150,000 documents on their web site.

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If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards. The Consumer Product Safety Commission (CPSC) says you can't sue a mattress maker if your mattress bursts into flame despite meeting CPSC standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration (NHTSA) proposals for stronger roofs.

Consumer advocates call this "silent tort reform." It is part of the tension between state and federal law that has existed since the nation's founding. If there is a conflict, state laws must yield under Article 6 of the Constitution. But where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. Big business and insurance companies are now using this to avoid responsibility for negligent actions and omissions at the expense of innocent consumers.

Under the Bush administration, a developing body of judicial opinion could place new limits on the rights of those who buy or use products. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

Federal agencies are increasingly promulgating rules favorable to big business and insurance companies at the expense of ordinary citizens. They then assert their rules override state tort and product-liability laws. In a novel approach, these agencies are claiming that the preemptive effect is based on statements in the introductions to their rules, not the rules themselves.

The practice varies by agency but is spreading. It delights corporate defense lawyers. The argument is that federal agencies are the absolute rule-makers.

Actor Dennis Quaid and his wife are preparing to fight such a contention — this one made by the FDA — in a suit accusing Deerfield, Ill.-based Baxter Healthcare Corp. of putting vastly different doses of a blood-thinner into confusingly similar packages. The Quaids went to court in November 2007, after their infant twins were given 1,000 times more heparin than babies should get. Their suit contends Baxter should have changed the packaging after three babies died in 2006 at an Indianapolis hospital.

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Our Atlanta medical malpractice attorneys on occasion review cases in which surgical procedures are performed on the wrong side of the body.

Last Tuesday there was a report of a wrong site surgery at a Minnesota hospital. Surgeons at the hospital mistakenly removed the wrong kidney from a patient. The surgery was performed last Tuesday at Methodist Hospital in Minneapolis, but it wasn't until the next day that it was discovered that the wrong kidney had been removed. A pathology examination of the removed kidney determined that it was healthy.

The doctor who removed the kidney was a veteran surgeon. The hospital while accepting responsibility for the actions, has pointed a finger at a paperwork mistake.

Most hospitals have safety measures in place designed to prevent wrong-site surgery, including marking body parts to be operated on in advance of surgery and requiring a "time out" in the operating room to give surgical staff a chance to double check documentation and voice any concerns.

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Many surgery patients report that they awake during surgery. They say it feels like being trapped in a corpse, unable to move or scream. Some remember hearing their surgeons talk, and a few recall feeling intense pain.

Each year, as many as 40,000 of the 21 million patients undergoing surgery in the United States may experience inadequate anesthesia, leading to anxiety and even post-traumatic stress disorder if patients regain consciousness, according to the Joint Commission on Accreditation of Healthcare Organizations.

A widely used device that employs brainwaves to help doctors prevent patients from waking up during surgery is no more effective than an older, far less costly technique, researchers said on Wednesday. A study of nearly 2,000 patients reported in The New England Journal of Medicine showed the BIS device, made by Aspect Medical Systems Inc., did not help doctors prevent any more patients from waking up while under inhaled anesthesia.

The researchers concluded that reliance on BIS technology may provide patients and health care practitioners with a false sense of security about the reduction in the risk of anesthesia awareness. They reported that if BIS monitoring were routinely applied to all patients in the United States, the cost of disposable electrodes alone would exceed $360 million annually.

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In 2006, a disabled and brain damaged man, near death, was taken into an operating room at a California hospital in order to harvest his organs for donation. Law enforcement officials contend that what occurred in the operating room was a criminal act. The surgeon, Dr. Hootan Roozrokh has been criminally charged with prescribing excessive and improper doses of drugs, apparently in an attempt to hasten Mr. Navarro’s death to retrieve his organs sooner. The doctor is facing three felony counts relating to his actions

Central to the case is whether Dr. Roozrokh was pursuing organs at any cost or had become entangled in a web of misunderstanding about a lesser-used harvesting technique known as donation after cardiac death. Dr. Roozrokh has pleaded not guilty.

Transplanting organs from patients whose hearts have stopped, or cardiac-death donations, began to go out of vogue in the late 1960s and early ’70s after medical advances like life support and subsequent changes in the legal definition of death made donations from those declared brain dead more efficient. But health officials have encouraged cardiac-death donations in recent years.

There were 670 cardiac-death donations through the first nine months of 2007, the most in any year this decade, according to the United Network for Organ Sharing, which oversees organ allocation. Over the same period, there were 12,553 brain-dead donations, according to the network.
In brain-death donations, the donor is legally dead, but machines keep the organs viable by machines. In cardiac-death donations, after the patient’s ventilator is removed, the heart slows. Once it stops, brain function ceases. Most donor protocols call for a five-minute delay before the patient is declared dead. Transplant teams are not allowed in the room of the potential donor before that.

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Lawyers who practice in the field of dangerous medical devices and drugs are never surprised to discover relationships between physicians and pharmaceutical and medical device companies. Recently, questionable ties between supposedly objective researchers and the maker of an artificial spinal disk have come to light. An artificial spinal disk is a device that is used in place of conventional surgery during which patients’ vertebrae are fused.

In a study of nearly 240 patients with lower back pain, physicians reported that the artificial spine disk, manufactured by Prodisc, had worked much better than conventional fusion surgeries. A well-known spine specialist and one of the study’s researchers said in a 2006 news release that “as a surgeon, it is gratifying to see patients recover function more quickly than after fusion and return to their normal activities more easily.”

Discovery in a lawsuit against the manufacturer has disclosed that the surgeon had a large financial interest in the outcome of the study. So did other doctors at about half of the 17 research centers involved in the study. Federal law requires that manufacturers inform the Food and Drug Administration of researchers’ financial interest in a product or drug before the study is used to seek approval of a device. It is unclear whether the disk’s manufacturer made this information available to the FDA.

In the study results submitted to the FDA , an unusually large number of patients were not included. Some of those patients had very poor results. As a result, some doctors are very critical of the research stating that the study may have overstated the value of Prodisc. They point out that clinical researchers with financial conflicts have incentives to overstate the value of a new product.

Dr. Richard A. Deyo, a Professor at Oregon Health and Science University, summed up the matter in this way, “The surgeons themselves are guilty of being insufficiently critical of products and techniques they are developing. More people are more interested in getting on the gravy train than on stopping the gravy train.”

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We have previously written about the dangers of medication errors in hospitals. Recently another incident made the news because a celebrity was involved. Actor Dennis Quaid’s newborn twins and another child were put in serious danger when they were administered overdoses of a blood thinner. The California Department of Public Health said the Cedars-Sinai Medical Center gave the newborns 1,000 times the intended dosage of heparin. Fortunately, all three children recovered, but two needed a drug that reverses the effects of heparin.

The authorities said the "violations caused, or were likely to cause, serious injury or death to the patients who received the wrong medication," and they faulted the hospital for its "deficient practices" around administrating the drug.

The regulators' found that the hospital did not adequately educate staff about safe use of heparin, which it described as a "high alert, high risk" blood thinner, and that nurses sometimes failed to adequately read labels on vials of the drug.

The hospital has apologized to the patients' families and said it made changes to prevent a recurrence, including providing more training and requiring four pharmacy workers to verify a high-alert medication before putting it in a patient care unit.

Quaid and his wife, have sued Baxter Healthcare Corp., the makers of heparin, accusing the firm of negligence in packaging different doses of the product in similar vials with blue backgrounds.
A similar dosage error killed three premature infants at an Indianapolis hospital in 2006. Three others survived overdoses.

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Our attorneys are increasingly reviewing cases where major surgical procedures are being performed at small physician-owned hospitals and surgical centers.

On January 10, 2008, the Washington Post revealed that the Department of Health and Human Services, Office of Inspector General, had issued a report concerning physician-owned specialty hospitals. The report concluded that most physician-owned speciality hospitals are poorly equipped to handle medical emergencies.

The report revealed that only 55% of the 109 physician-owned hospitals studied had emergency departments, and of those, the majority had only one bed. Fewer than a third of the hospitals had physicians on site at all times and 34% relied on dialing 911 to summon emergency medical assistance for patients who developed problems. Moreover, 7% of the hospitals failed to meet Medicare requirements that a registered nurse be on duty at all times and that at least one physician be on call or in the hospital.

Federal Medicare and Medicaid requirements do not require participating hospitals to have emergency departments, but do require they keep written policies for handling emergencies. They also cannot rely on summoning 911 services as a substitute for their own requirements of emergency care.

The issues concerning emergency care in physician-owned hospitals has been in the news recently. Last year, it was reported that a 44 year old truck driver went into respiratory arrest following elective surgery at a West Texas Hospital. The only recourse for the staff of the hospital was to call 911, which was done. But, by the time the man arrived at a larger hospital he was pronounced dead. Similarly, in 2005, it was reported that an 88 year old woman in recovery after elective back surgery suffered a heart attack after an injection of pain medication. Since no doctor was at the hospital, the nurses were forced to call 911. The lady was taken to a community hospital where she died later.

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Our medical malpractice attorneys are frequently forced to decline cases which have merit from a liability standpoint, but due to caps on the amount of recovery cannot be justified in economic terms.

Last week, the Los Angeles Times ran a story concerning a 72 year old woman who entered Stanford University Medical Center for double knee replacement surgery in April. Four days later, she was dead. Her son, an anesthesiologist, felt that the case was a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain which she described as a 10 on a scale of 1 to 10. The hospital failed to diagnose the cause of her pain and continued to treat her with pain relievers. Her vital signs became unstable and she was moved to an intensive care unit, but she died of complications from an undiagnosed and untreated bowel obstruction.

According to the story, state regulators found the hospital at fault and cited it. The anesthesiologist and his family decided to sue and approached 24 lawyers. All the lawyers declined to take the case for the same reason - the medical malpractice caps on the amount of recovery didn’t justify the expenses.

California law limits pain and suffering awards in medical malpractice cases to $250,000. Unless there is a large economic loss, the cost of bringing these types of lawsuits can exceed the limit of recovery. Similarly, Georgia’s $350,000 cap prevents many lawyers from taking cases involving elderly people, unemployed persons, and young people.

The anesthesiologist, who once was an advocate of so-called “tort reform” now opposes it. Almost 30 states have enacted similar legislation, and two Republican presidential candidates, Mitt Romney and Rudolph Guiliani have recently endorsed a national approach to limits on recoveries.

Several states have set their malpractice caps considerably higher because of worries that they unfairly affect poor patients the most. In fact, some states have begun to examine the fairness of these caps especially, those not tied to the cost of inflation. The elected officials in Georgia seem content to allow the caps to remain in place.

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Our medical malpractice attorneys are many times forced to turn away cases against emergency rooms where the patient is injured by clear negligence. This is caused by the gross negligence standard for emergency departments adopted by the Legislature in 2005.

With the Georgia Legislature meeting this week, Senators from both sides of the aisle, Democrats and Republicans, have joined to co-sponsor Senate Bill No. 286. This bill is designed to amend the provision of the so-called Tort Reform Bill initially passed in 2005, which essentially gave emergency rooms immunity from law suits. As part of the February 2005 bill, patients alleging malpractice in emergency rooms must prove gross negligence. Gross negligence is most often characterized under Georgia law as a reckless disregard for the safety of a patient, and in many cases has been interpreted to mean intentional harm.

Georgia’s gross negligence standard is the harshest in the country. Supporting this amendment are not only Republican and Democratic Senators, but Mothers Against Drunk Driving (MADD). MADD Director, Denise Themes, has commented that victims of drunk driving accidents usually go directly to an emergency room for treatment. She points out that given the unique conditions in the statute, it’s nearly impossible for one of those victims to prove gross negligence after the fact.

A recent study by Harvard of more than 30,000 hospital records concluded that emergency rooms have more injuries caused by negligence than all other areas of the hospital combined. According to the Institute of Medicine, preventable medical errors kill as many as 98,000 Americans each year and seriously injure another one million. This makes medical errors the eighth leading cause of death in the United States, higher than deaths in automobile accidents, breast cancer and AIDS. This bill is a commendable bipartisan effort to correct a horrible injustice caused by the laws of Georgia.

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In a study published yesterday in the New England Journal of Medicine, the authors concluded that in nearly one-third of cases of sudden cardiac arrest occurring in hospitals, the staff takes too long to respond, greatly increasing the risk of brain damage and death. The authors research indicates that these delays contribute to thousands of deaths a year in the United States alone.

The study was based on the records of 6,789 patients at 369 different hospitals whose hearts suffered from conditions that could be reversed by the use of an electronic defibrillator.

Experts say that the defibrillator shock should be administered to the patient within two minutes after the heart stops beating. But, the study found that it took longer in 30% of the cases. The results of the delays were striking. When the defibrillator was delayed, only 22.2% of patients survive long enough to be discharged from the hospital as opposed to 39.3% when the shock was administered properly.

The delays were found to be more likely in patients who suffered heart stoppages at night or on the weekends, or who were admitted for a non-cardiac illness in a hospital with fewer than 250 beds and in units without heart monitors.

The authors of the study surmised that the problem may be even more widespread than their study revealed. They pointed out that the hospitals which were part of the study have joined a national registry on cardiac arrest which means there have already adopted special efforts trying to meet guidelines involving the use of debibrillators. Thus, they feel that these hospitals actually performed better than the average hospital.

The authors estimated that 370,000 to 750,000 hospitalized patients have a cardiac arrest every year in the United States. They reported that in a third to one-half of the cases, the cardiac arrest is caused by an abnormal rhythm that can be corrected by a shock from a defibrillator.

The reasons for the delays were varied. Sometimes, especially at night and weekends, it was felt that not enough personnel were available in smaller hospitals. Also, in some hospitals, nurses other than those in intensive care units, were not allowed to use defibrillators. Another factor that the authors pointed out was that the traditional defibrillators used in hospitals require that a doctor or nurse look at the patient’s heartbeat, verify that the problem is correctable by the defibrillator, adjust the machine and deliver the shock. In contrast, the automatic defibrillators that have come into use in public places are meant to be used by laymen. They can be connected to the chest of someone who has collapsed, the machine will sense electro activity in the heart and deliver a shock only if it is needed. These devices are designed to be almost foolproof, but so far they have not been used widely in hospitals.

One expert in the field commented that some patients would be better off having a cardiac event in a shopping mall than in a hospital.

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The Food and Drug Administration has issued a warning about fentanyl pain patches. The fentanyl skin patch contains fentanyl, a potent narcotic. The skin patch was approved by FDA in 1990 for use in patients with persistent, moderate-to-severe pain who have become opioid tolerant – meaning that they have been using another strong opioid narcotic pain medicine around-the-clock, and have been using the medicine regularly for a week or longer. The skin patch is most commonly prescribed for patients with cancer.

The FDA has continued to receive reports of deaths and life-threatening side effects after doctors have inappropriately prescribed the patch or patients have incorrectly used it.

In addition, the agency is asking manufacturers of all fentanyl patches to update their product information and to develop a medication guide for patients.

The FDA has received recent reports describing deaths and life-threatening side effects after doctors and other health care professionals inappropriately prescribed the patch to relieve pain after surgery, for headaches, or for occasional or mild pain in patients who were not opioid tolerant. In other cases, patients used the patch incorrectly: The patients replaced it more frequently than directed in the instructions, applied more patches than prescribed, or applied heat to the patch – all resulting in dangerously high fentanyl levels in the blood.

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Posted In: Dangerous Drugs , Medical Malpractice , Pharmaceutical Manufacturer Liability , Products Liability

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A disturbing study by the Massachusetts General Hospital was reported in the December 6, 2007 issue of the Harvard Crimson Newspaper. The paper reported that the study disclosed that nearly half of the doctors surveyed are more likely to protect their colleagues than their patients. Forty percent of the doctors admitted to not reporting a serious medical error they had witnessed. Likewise, forty-five percent admitted to not reporting a physician who they knew to be impaired or incompetent.

Additionally, the study found that the physicians had failed to live up to standards in preventing the waste of medical resources, with over one-third accommodating the patient who insisted on a test the doctor knew was unnecessary. Doctors were also revealed to be very poor at managing economic conflicts, with the majority saying they would refer patients to facilities in which they had financial stakes. Nearly one-quarter of the doctors stated they would not inform the patient of this potential conflict, even though such activities could be considered illegal under medicare rules.

The researchers interviewed 1,662 practicing physicians including three groups of primary care doctors, - internists, family practitioners and pediatricians and three groups of specialists, - surgeons, anesthesiologists and cardiologists.

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The United States Supreme Court heard arguments yesterday in a case which may have a major impact on lawsuits against medical device makers brought by patients who have been injured by defective products. The Supreme Court will be asked to consider whether patients can bring lawsuits over defective devices which have been cleared for sale by the Food and Drug Administrations’ approval process. In this case, a federal appeals court barred a suit which claims a New York man suffered permanent injury when a Medtronic heart catheter burst during a heart procedure.

The decision of the lower court would undercut thousands of lawsuits, including cases over defibrilators made by Medtronic and Boston Scientific Corp. Guidant unit. The ruling may also shield Medtronic from suits over its recalled Fidelis defibrilator wires. In 1996, a divided Supreme Court allowed lawsuits over products approved through a separate Food and Drug Administration approval process that provided for fast-track reviews of devices. The case before the Supreme Court concerns a pre-market approval process which is a more intensive FDA review.

The Bush administration is not surprisingly backing the medical device makers in their argument that the federal pre-market system should preclude claims that companies ought to have done more to ensure safety.

The current Supreme Court has almost uniformly ruled against plaintiffs in insurance and antitrust, as well as products cases.

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It was reported today that a Rhode Island hospital has been fined $50,000 by the Rhode Island Department of Health and reprimanded after a doctor performed brain surgery on the wrong side of the patient’s head.

According to reports, this was the third time this year at the particular hospital that a doctor performed brain surgery on the wrong side of the patient’s head.

The most recent case happened last Friday when the Chief Resident began surgery on the wrong side of an 82 year-old patient’s brain. Fortunately, the patient is reported to be doing okay after the surgery. In February of this year, a different doctor performed neurosurgery on the wrong side of another patient’s head. That patient was reported to be doing okay as well.

However, in August of this year, a patient died a few weeks after a third doctor operated on the wrong side of his brain. That death prompted the State Department of Health to order the hospital to take steps to ensure such a mistake would never happen again. Obviously, if the hospital did take such steps they were ineffective. The hospital is a teaching hospital for Brown University.

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Our wrongful death and serious injury lawyers work with our clients on a contingency fee basis. The contingent fee is perhaps the one device that gives seriously injured people, no matter what their financial means, an even break in the courtroom against giant corporations and insurance companies. Contingent fee practice has been an essential part of the United States justice system for more than a hundred years. It permits every American regardless of wealth or social standing the opportunity to pursue a valid claim against even the most powerful corporation or individual. In a large measure, it has made our judicial system the envy of the world. It is no surprise that it has been under almost constant attack for years by corporations and insurance companies.

Increasingly, there have been calls by organizations sponsored in secret by large corporations and insurance companies, to abolish the contingency fee. Big businesses and individuals who want to avoid accountability for their negligent and reckless acts are pushing for special protections in state legislatures and in the U.S. Congress. These wrongdoers have initiated a less obvious line of attack on the American consumer, an attack that directs itself not of the consumer, but an easier target, the lawyers that represent them. Many of these attacks are coordinated by the U.S. Chamber of Commerce.

Without the contingency fee, many people would never be able to bring a claim to redress wrongs done by large corporations and powerful individuals. In essence, the contingency fee allows a lawyer to advance his services and time in return for a percentage of the recovery. In this day and age, due to increasing burdens placed by the legislatures on claimants, the cost of bringing a lawsuit are extremely high. In fact, almost none of our clients could afford to bring a lawsuit without the contingency fee.

The assault on the contingency fee is nothing more than an attempt by powerful interests to deny access to justice to tens of thousands of Americans who are injured each year due to another’s wrongful acts.

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Posted In: Automobile Accidents , Brain Injury , Medical Malpractice , Pharmaceutical Manufacturer Liability , Police Chases , Products Liability , Torts , Truck and Tractor Trailer Accidents , Wrongful Death

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In serious injury and death cases our attorneys consistently face challenges from the defense to the testimony of our highly qualified expert witnesses. These challenges are based upon the rule of evidence known as the Daubert standard.

The Daubert standard is a legal precedent set in 1993 by the United States Supreme Court regarding the admissibility of expert scientific testimony during legal proceedings. In Daubert, the Supreme Court ordered federal trial judges to become the “gatekeepers” of scientific evidence. Trial judges were instructed to evaluate expert witnesses to determine whether their testimony is both “relevant” and “reliable”.

A two-prong test of admissibility was established. The relevancy prong refers to whether or not the expert’s evidence fits the facts of the case. The relevancy requirement has always existed in the law.

The reliability prong was new. The Supreme Court explained that in order for expert testimony to be considered reliable, the expert must derive his or her conclusions from the scientific method. The court then offered general observations of whether proffered evidence was based on scientific method including such things as empirical testing, peer review, the potential error rate, and whether the theory or technique is generally accepted by a relevant scientific community.

In practice, this standard has been burdensome, and grossly unfair to claimants in courtrooms. Trial judges are simply in no better position than juries to serve as “gatekeepers” to scientific evidence. In fact, many of these judges bring their own biases to their determinations. One example given is that under this standard, if Christopher Columbus were required to appear in a courtroom during his lifetime using the Daubert standard, his opinion that the world is round would have been inadmissible.

As part of the so-called Governor’s tort reform of 2005, the Daubert standard was adopted by the state legislature for use in Georgia. However, bowing to pressure from the Prosecuting Attorney’s of the state, who realized how gross unfairness of the Daubert standard, the governor and legislature exempted criminal cases from the Daubert standard. However, catering to the demands of the insurance industry and large corporations, the legislature adopted the Daubert standard for civil cases.

Currently pending before the Georgia Supreme Court is a case in which the Daubert standard is being challenged on constitutional grounds. An argument is being made that it denies equal protection to adopt the standard in civil cases and not in criminal cases. It will be very interesting to see how the Georgia Supreme Court handles this challenge, especially in light of the fact that in recent years, large insurance companies and corporations have thrown millions of dollars into the judicial races in attempts to elect candidates who will follow their agenda.

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On June 15 of this year, we wrote an article on this blog about how pharmacy errors were causing serious injuries and wrongful deaths at an alarming rate on a nationwide basis. The problem about which we wrote unfortunately was the topic of a headline article in the news today concerning the death of a 3-year old child in Gainesville, Florida. This child died from a medication overdose. Instead of receiving the prescribed dose of a medication ordered by the doctor, the pharmacy gave him more than 10 times the amount ordered. The boy died because of this mistake.

According to the news article, a moratorium has been instituted at this facility until a quality assessment and new patient safety measures are implemented. Thus, we have one more statistic in this national problem, this time affecting a very small and innocent child and his family.

When receiving medication from a pharmacy, patients should always carefully review the label to make sure that the dosage appears to be correct. If they have any questions at all about this, they should confer either with their doctor or pharmacist. Because mistakes are made which can cause serious medical problems and/or death, not only must pharmacies be more careful but patients must also act to protect themselves. While a settlement was reached with the parents for the wrongful death of this child, obviously, no compensation can address the loss of a 3-year old child. While we hope that this problem can be effectively addressed by the pharmacy industry, until remedial steps are taken on a nationwide basis, more headlines of a similar nature are likely to be seen.

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It seems that all the time we read articles about the need for reform in the medical malpractice area because of so-called frivolous litigation. The argument always seems to be that claims are being brought which are frivolous and that medical malpractice rarely occurs. The truth is that, like any other human undertaking, malpractice does occur in the field of medicine. Sometimes, the malpractice can be egregious and the mistakes life altering.

Just today we read a story about a lady who had a double mastectomy because of a lab mistake. She was told she needed to have both her breasts removed because she allegedly had cancer. Four months after she had had her breasts removed she received a telephone call that the lab had made a mistake and she never had cancer at all. The lawyers who have taken this case will not be filing a claim for medical malpractice against the doctors but obviously will be filing a claim against the lab. Certainly, this is not frivolous litigation in any sense of the word. And yet, if this lady were to file a lawsuit in the State of Georgia, and she was not working, her pain and suffering claims would be capped at $350,000.00. This is so that the insurance companies’ profits can continue to skyrocket at the expense of patient rights. The fact remains that physicians continue to pay high premiums in Georgia while insurance profits have soared and patients have suffered.

This article shows once again that it is unfair to innocent victims of human mistakes to cap their damage awards simply so insurance companies can increase their profits and dividends to shareholders. The purpose of insurance is to protect against catastrophic claims. This lady’s unfortunate case is just one example of many where insurance should be available to compensate the innocent victim. Again, here in Georgia, if this lady suffered this result in our state, she would not receive justice. Despite the life altering event, she could only receive $350,000.00 for a lifetime of suffering. Why? Because of so-called frivolous litigation and the alleged need for “tort reform.” As we have said before, we do not need tort reform, we need insurance reform. This case proves the point.

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In an analysis made public this week, Consumers Union, the publisher of Consumer Reports Magazine, compared data compiled by the Federal Centers for Medicare and Medicaid Services showing compliance with infection control measures for hospitals in Maryland and Virginia.

Consumers Union is advocating a bill before Congress that will require hospitals to publish their infection rates. The analysis determined that the hospitals in both states generally performed about as well as hospitals nationwide. But, according to the study, the hospitals in each state varied greatly in their adherence to three measures of practice quality. The three infection control measures are:

1. How often preventative antibiotics are given in the hour before surgery;

2. How often the right antibiotic is chosen; and

3. How often the drug therapy is halted within 24 hours.

It has been shown that giving patients an appropriate antibiotic in the hour before surgery reduces infection risk. Yet, not all hospitals perform such preventative measures with consistency. For example, one hospital in Virginia reported that it gave 97% of its surgery patients preventative antibiotics in the hour prior to their operations. At the other extreme, another Virginia hospital reported that it gave patients antibiotics in only 22% of its cases.

According to Consumers Union, ending antibiotic treatment on time is equally critical. Studies have shown that therapy that lasts longer than a day can breed antibiotic resistant bacteria, making any infection that does occur more dangerous. The study reported that in Maryland, one hospital ended antibiotic therapy within the appropriate time in 90% of its cases. At the other extreme, another Maryland hospital ended the therapy appropriately in only 20% of its cases.

Hospital-related infections are a major problem in this country. An estimated 1.7 million hospital patients develop infections each year. According to the latest results from the Centers for Disease Control and Prevention, approximately 99,000 Americans die each year from hospital-related infections. The actual numbers are unknown because hospitals are not required in most states to report infections.

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While reviewing cases involving falls in skilled nursing facilities our lawyers have determined that there are several causes of falls that we see frequently. The first involves patient’s characteristics. Dementia associated with “sundowner” syndrome or nighttime confusion is a common occurrence. In this situation, the patient may awake in the middle of the night not knowing where he or she is, experience a drop in blood pressure from arising too quickly, and have a momentary dizzy spell. This almost invariably leads to a fall.

Another frequent cause involves vision disturbance, where a patient simply cannot see well enough to guide his or her steps. Arthritis or other orthopedic problems that compromise the ability to walk also lead to falls. Old strokes can lead to weakness or partial paralysis which can in turn lead to a loss of balance resulting in a fall.

Many medications can cause drops in blood pressure, lack of positional compensation with rising, sleepiness, lack of awareness, and balance.

Environmental factors can also play a part in falls. These include such things that are easily remedied, such as slippery floors, uneven surfaces, blind corners, insufficient lighting and improperly placed beds and rails.

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Our lawyers are frequently asked to review cases involving patient falls in skilled nursing home facilities. Due to the physical and mental conditions of many infirm and elderly patients, it is impossible to prevent all falls. However, in many instances falls can be prevented or greatly reduced by the implementation of proper procedures.

Patients who are long term residents in skilled nursing homes are by definition in a compromised state of health, usually from multiple chronic medical problems. These patients are often weak, are subject to lightheaded spells, become confused and have significant deficiencies of mobility and balance. Falling, sometimes frequent falling is thus a common occurrence for these patients.

The consequence of these falls can range from simple bruising to severe complications such as broken bones and brain injuries. Even relatively simple additional stresses imposed on an already debilitated patient can have severe long term effects on a patient's overall medical condition. For example, statistics show that patients who sustain a fractured hip have much higher 6 month death rates even after the fracture has healed and baseline mobility has been re-established.

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The Associated Press has reported that an 86-year-old Providence Rhode Island man died three weeks after a neurosurgeon operated on the wrong side of his head. The patient, whose name wasn't released, died Saturday, and the state medical examiner was determining the cause of death.The man underwent emergency surgery at Rhode Island Hospital on July 30 to treat bleeding in his brain A nurse practitioner for Dr. Frederick Harrington didn't record which side of the man's brain required surgery. When another nurse pointed out the missing information, Harrington allegedly relied on his memory without consulting a CT chart and began operating on the wrong side. Upon realizing the error during the surgery, the surgeon operated on the correct side.

The hospital has suspended Harrington's surgical privileges, and he has agreed to stop performing surgery until an evaluation is complete. The incident marked the third wrong-side surgery error in the hospital's neurosurgery unit in six years. Harrington also operated on the wrong side of a patient's head during a surgery at Roger Williams Medical Center in September.

After reviewing that incident, the state Board of Medical Licensure and Discipline decided there were mitigating circumstances and opted to create a remediation plan for Harrington rather than publicly sanction him.

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Our lawyers frequently review cases involving hospital acquired infections, many of which are fatal. New Medicare regulations have been enacted in an effort to prevent these all too frequent tragedies. Under new Medicare regulations, which will become effective in October 2008, hospitals will no longer receive higher payments for the additional costs associated with treating patients for certain hospital-acquired infections and medical errors. The new rules will give hospitals a powerful new incentive to improve patient care, according to Consumers Union, the nonprofit publisher of Consumer Reports. These new regulations are a giant step in the effort to save lives and money by holding hospitals responsible for their preventable negilgent acts which harm patients and cost taxpayers huge sums of money.

“Every year, millions of Americans suffer needlessly from preventable hospital infections and medical errors,” said Lisa McGiffert, Director of Consumers Union’s Stop Hospital Infection’s campaign. “These new rules are a good beginning for Medicare to use its clout to mobilize hospitals to improve care and keep patients safe.”

Under the rules payments will be withheld from hospitals for care associated with treating certain catheter-associated urinary tract infections, vascular catheter-associated infections, mediastinitis after coronary artery bypass graft (CABG) surgery, and five other preventable medical errors. These errors are bed sores, objects left in patients’ bodies, blood incompatibility, air embolism, and falls.

The new Medicare regulations specifically include protections which will prevent hospitals from billing patients when payments are withheld and to minimize avoidance of patients perceived to be at risk for infections.
Catheter-associated urinary tract infections are the most common infection developed by patients in hospitals. The Centers for Disease Control and Prevention (CDC) has reported that there are 561,667 catheter-associated urinary tract infections per year. According to a study in the American Journal of Medicine, the annual cost of urinary tract infections in hospitals is as much as $451 million.

Bloodstream infections are high in volume and cost, and are preventable. The CDC has reported that there are 248,678 cases of central line associated bloodstream infections every year. The Institute for Healthcare Improvement estimates that approximately 14,000 people die every year from central line-related bloodstream infections.

CMS failed to address the incidence of infections caused by methicillin-resistant Staphylococcus aureus (MRSA), a virulent antibiotic resistant bacterium. According to CMS, over 95,000 Medicare patients had MRSA infections in 2005, running up hospital charges of almost $3 billion. MRSA was not selected for nonpayment because of coding issues and because CMS does “not believe there is a consensus among public health experts that MRSA [infection] is preventable.”

Hospital acquired infections are a leading cause of death in the United States. The Centers for Disease Control and Prevention (CDC) estimates that 2 million patients suffer from hospital infections every year and nearly 100,000 of them die. Research shows that hospitals could prevent many infections through stricter adherence to proven infection control practices.
The Centers For Disease Control has estimated that hospital acquired infections result in up to $27.5 billion in additional health care expenses annually. Medicare foots the bill for a big portion of infection-related health care costs.

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In the not too distant past, our lawyers’ experience had been that medical malpractice encompassed almost exclusively the negligent wrongs of physicians. However, as nursing has evolved into a sophisticated, technical, and specialized profession, nurses regularly assume roles previously in the exclusive domain of physicians. These include examinations, diagnosis, post-surgical monitoring, and treatments of patients. Sometimes this is done without any direct supervision from physicians. The nurse’s expanded role in patient care, the continual development of specialized and sophisticated medical technology, and the heightened emphasis on independent nursing practice have placed nurses into positions of increased accountability.

Generally, when the nurse’s negligence occurs in the scope of the nurse’s employment at a hospital or clinic, the nurse’s conduct can be imputed to the facility or the hospital. In certain cases, the nurse’s conduct may be imputed to the physician.

Most nursing negligence results from one or more of the five steps in the nursing process: Assessment, nursing diagnosis, care planning, intervention, and evaluation. More specifically, the allegations often focus on improper treatment, performance of treatment, failure to prevent injuries, failure to follow the chain of command, failure to monitor a patient’s condition, failure to communicate information to physicians, failure to follow hospital policies and protocols, and medication errors.

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Legislation is being considered in both houses of Congress to fund pilot projects in 10 states that would create administrative panels known as "health courts." This legislation is being strongly supported the medical and insurance lobby. The legislation is based on systems in Scandinavia and New Zealand. The state of Florida also has an existing administrative procedure for dealing with birth-related neurological injuries.

The legislation, if passed in its current form, would eliminate jury trials in medical negligence cases. The standard by which the actions of health care providers is judged would not be the traditional negligence standard, but one of avoidability. All decisions would be made by health court judges who could rely on experts serving on specialized panels. Damages would be limited to a range of predetermined amounts which are assigned to specific injuries.

Similar bills were introduced last year, but were modified and reintroduced this year following intense scrutiny during Congressional hearings. The requirements were modified to allow patients to voluntarily withdraw from participating in the health court proceeding due to serious concerns about the constitutionality of denying access to juries.

One of the prime arguments in favor of health courts is that juries lack the knowledge-base needed to resolve medical negligence claims fairly. However, a study conducted by Philip G. Peters Jr., a professor at the University of Missouri School of Law, refutes this contention. After examining three decades of studies on jury decisions in medical malpractice cases, he concluded that juries actually perform very well. Peters found that in cases with weak evidence juries agreed with the assessments of expert reviewers nearly 90 percent of the time. He also found that juries overwhelmingly favor defendant doctors, even in cases where the evidence against them is strong.

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In 2005, the Georgia General Assembly enacted the so-called “Tort Reform” Act which greatly affected medical negligence claims in the State of Georgia. The stated intent was to lower insurance rates for physicians and healthcare providers. However, while severely restricting the rights of individual citizens to seek redress in the Courts, and increasing the burdens on plaintiff’s lawyers, the insurance rates of healthcare providers have not decreased.

While the requirements of bringing a medical malpractice case and the standards for obtaining experts have been greatly increased, it should be noted that a meritorious case can still be successfully prosecuted. Unfortunately, the General Assembly enacted a cap of $350,000.00 for non-economic damages which will greatly affect the recovery in many cases. Essentially, what this means is that unless you are a very large wage earner, the damages that you receive are, in most cases, limited to $350,000.00 maximum.

There have been several successful challenges in the Courts to many of the outrageous restrictions enacted in the so-called “Tort Reform” Act. Other challenges are currently pending and working their way through the lower Courts into the Appellate Court system. One of these involves the changing of the standard of care for actions against emergency room personnel from ordinary negligence to gross negligence, which in effect immunizes care rendered in emergency rooms. While the Georgia General Assembly promised to revisit this restriction when the legislation was passed, it has refused to do so.

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Lawyers in Georgia who handle serious injury and wrongful death cases are often confronted with situations where their clients are hospitalized and later acquire a Staph infection which greatly complicates their recovery. We also see cases where clients call complaining about the development of an infection while hospitalized for one condition where the infection becomes much more serious than the condition for which they were originally treated. Regrettably, many people die from these infections.

It just so happens that I ran across an article recently that very succinctly describes this problem. As can be seen, this is not only a problem in Georgia but also a nationwide problem. Because litigation seems to be the best solution we have to deal with this problem, it would seem that the best theory to pursue these cases on would be a failure to warn theory.

Hospitals are always advertising the quality of their services but at the same time are often times concealing their infection rates. If a hospital has a significant infection rate and a patient has no idea when they enter the hospital that they are subject to being exposed to such deadly infections, query whether the best possible legal theory of recovery for such an innocent victim of hospital negligence would be on a failure to warn theory?

Perhaps a review of the article below might stimulate further thoughts along these lines:

Continue reading "Hospital Infections in Georgia – Symptoms of a National Problem" »

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In the summer of 2006 MSNBC.com reported that each year as many as 1.5 million Americans suffer a serious injury or death because of errors made in the dispensing, prescribing or taking of prescription drugs. In an earlier report published by the Institute of Medicine of the National Academies, it was estimated that each year more than 7,000 people in the United States die from pharmacy related medication errors. Last year, in the nationally syndicated program 20/20, ABC News reported extensively on this problem. Regrettably, from all statistics, it appears that pharmacy negligence is on the rise.

“It doesn’t take a rocket scientist” as one would say to recognize the cause for these rising errors in the pharmacy business. Many of the pharmacists working at nationally recognized chains are often overworked pulling lengthy shifts sometimes back-to-back. The pressures upon them can lead to fatal mistakes. If a pharmacist makes a mistake and dispenses the wrong drug to the wrong patient with the wrong condition, a serious injury or death can occur and, unfortunately, it may too late before the victim of the negligence can take steps to protect themselves from the mistake.

Because errors by pharmacists and national pharmacy chains can cause irreparable harm to innocent patients, one would think that the national chains would decrease the burdens placed upon the pharmacists charged with the dispensing of increasingly powerful drugs. Nonetheless, the ever-increasing demand for profits at these businesses creates ever increasing demands on the pharmacists with ever-increasing mistakes being a concomitant result of placing profit over safety. As the recent news reports have shown, this problem will not go away unless changes in the pharmacy industry occur.

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Negligent filing of prescriptions has been on the rise. In fact, because of a shortage of pharmacists and the steady increase in the use of prescription medications, the rate of death and injury from botched prescriptions is skyrocketing, officials say.

There are as many as 7,000 deaths annually in the United States from incorrect prescriptions, according to Carmen Catizone of the National Association of Boards of Pharmacy. He told The Washington Post that as many as 5 percent of the 3 billion prescriptions filled each year are incorrect.

Recently there was a settlement and verdict in Georgia for a man who took a fatal dose of the chemotherapy drug Lomustine. Family members, on behalf of his estate, sued an oncologist and his practice, alleging that the defendants negligently authorized the pharmacy to fill the Lomustine prescription with 20, as opposed to 2, pills which was contrary to the manufacturer's instructions. The suit also alleged the pharmacy was negligent in filing the prescription.

It's not always possible or easy for consumers to protect themselves against such errors, but there are steps you can take:

1. Read the prescription your doctor gives you aloud. Ask the physician to confirm it.
2. Verify the dosages and drug names with your doctor.
3. Before going to the pharmacy, write down the dosage and drug names.
4. Go to a reputable pharmacy, one that has more than a single pharmacist working with clerk and technician helpers. You can contact your state pharmacy board for information. Some will tell you if a pharmacist has been disciplined in the past.
5. When you pick up the prescription, check the labels and make sure the dosages and drug names match what you have written down.

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Unfortunately, as people age, they become more vulnerable to abuse, neglect, and exploitation. This is especially true for people living in long-term care facilities and nursing homes. Abuse and neglect results in persons suffering a variety of physical and psychological injuries, which result in pain, suffering, and loss of quality of life. An injured person is entitled to compensation for these losses, when they are caused by intentional or negligent actions of the nursing home or its employees. The injured person can make a personal injury claim against the nursing home, its employees, or both.

One of the most common cases of nursing home negligence involves people who develop bedsores. Victims of this type of negligence can be elderly, or younger people who are confined to a nursing home as a result of serious on-the-job injuries or automobile accidents. Other forms of abuse might involve actual physical or sexual assaults on the elderly perpetrated by nursing home employees. We recently had an elderly client who suffered from Alzheimers Disease. She was in a long-term care facility and was supposedly being cared for by people who specialized in caring for Alzheimers victims. While a resident of this long-term care facility, she was physically assaulted by an employee. This assault resulted in a fall in which she sustained a fractured hip. Unfortunately, she was not able to survive the surgery to repair her hip and she died. After suing the long-term care facility, and conducting discovery, we determined that the employee who assaulted her had no training whatsoever working with Alzheimers patients and, in fact, had recently worked at the facility as a kitchen employee.

If you have a family member in a nursing home or long-term care facility it is important that you check on them regularly. If you see signs of abuse or neglect, document them and seek legal help.

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