Abramson, Brown & Dugan Attorneys

In spite of efforts to curb medical errors in Connecticut hospitals, the error rate in these institutions is on the rise, according to the latest 5-year study. 

Medical mistakes arising from pressure ulcers, wrong-site surgeries, and prescription errors are contributing to an overall rise in the number of medical errors in hospitals throughout the state.

According to the New Haven Independent, "The new Adverse Event Report, prepared by the DPH, marks the first time that acute-care hospitals and other medical facilities have been publicly identified by name, as they report errors that caused harm to patients.

The five hospitals with the highest rate of adverse events in 2010, calculated per 100,000 inpatient days, were: New Milford Hospital (21.4), the Hospital of St. Raphael in New Haven (19.2), Sharon Hospital (17.2), Johnson Memorial in Stafford Springs (17), and William W. Backus in Norwich (16.2).  Other hospitals, including the Hospital of Central Connecticut and Saint Vincent’s Medical Center, had above-average rates of errors over the seven-year period from 2004-2010.

Because the errors are self-reported, state officials caution that some of the variation could be due to underreporting. The state does not conduct audits of medical or death records to validate the self reports, and national studies have found underreporting is a widespread problem. One study, published last May in Health Affairs, estimated that the system used in Connecticut and other states—voluntary reporting, based on federal patient-safety indicators—missed 90 percent of all adverse events.

The DPH reviews all hospital errors but does not investigate every case. In fact, the report shows, of 1,023 adverse events included in DPH’s database since 2007, the department launched investigations in only 23 percent of cases. Of 17 cases in which patients died or were seriously injured during surgery—a newer category added in 2010—only six were investigated."

Recently, the NY Times published a story about the dangers of physicians' use of mobile technology such as cell phones, laptop computers, and tablets while engaged in the practice of medicine.  Yesterday, the Clinical Advisor commented on the Times' article and provided some harrowing examples of its own.  For instance, "In a study published in the journal Perfusion, researchers surveyed 439 medical technicians who perform cardiopulmonary bypass (CPB). They found that more than 55% admitted to using a cell phone and 49% reported sending text messages during CPB. Among participants with smart phone features, 21% admitted to checking email, 15% used the internet and 3% posted on social networking sites during CPB. Despite the fact that some of the respondents may have engaged in these behaviors, more than 78% expressed concern that cell phones pose a potentially significant patient safety risk.

In another news report, a patient was left partially paralyzed after a distracted neurosurgeon used a wireless headset to make at least ten personal calls to friends and business associates during the procedure.

As the New Hampshire Republican Primary campaign becomes white hot in the Granite State, it's interesting to note that the candidate who has been perhaps the most vocal proponent of tort reform (Rick Santorum) also benefited from a medical malpractice lawsuit filed by her wife. 

Mrs. Santorum was awarded $350,000 by a Virginia jury after she was injured by a chiropractor.  According to www.marylandmalpracticelawyers.com, Mrs. Santorum "won a medical malpractice lawsuit in Virginia against a chiropractor who negligently performed a lumbar manipulation on her which caused several lumbar discs to herniate.  She required emergent surgery to her back as a result.  The jury awarded $350,000 to Mrs. Santorum for her medical expenses and pain and suffering losses."

As Mr. Santorum travels around our state talking about the need to reform healthcare and the "evils" of medical malpractice lawsuits, he might well remember and be grateful for the trial lawyers who helped him and his wife in their time of need.  If the civil justice system is available for the Santorums why shouldn't it be accessible to all Americans?

According to the state Department of Public Health, reported medical errors in Massachusetts remained essentially unchanged from 2010 to 2009.  In fact, there was a slight increase (510 to 512) in 2010.  Reporting these numbers is supposed to assist public health officials eventually reduce medical errors and address issues that led to the medical error in the first place.

While a one year statistical analysis doesn't provide enough data to determine a trend, it's never a good thing when medical errors increase from year to year.

The reporting and monitoring of medical errors and adverse health events is essential in improving the quality of healthcare as well as reducing medical costs.

Former Texas Governor Rick Perry has made it a staple of his stump speech and many elected officials agree with him that capping medical malpractice damage awards lowers healthcare costs.  However, according to a new study, that's simply not the case.

The experience in Texas appears to undermine most of the claims made by damage cap advocates. This is documented in a recent study released by Public Citizen, "A Failed Experiment: Health Care in Texas Has Worsened in Key Respects Since State Instituted Liability Caps in 2003." The subtitle effectively sums up the conclusions of the report.

The study found that Medicare spending has increased faster in Texas than the national average, in spite of the "steep reduction" in litigation that followed 2003. Outpatient services costs covered by Medicare have also exceeded national averages. More Texans lack health insurance, the per capita number of doctors has not increased noticeably, and premiums for private health insurance have increased at a rate higher than the national average.

Despite the high-profile claims made by many politicians and presidential candidates, what has actually happened in Texas does not support this so-called tort reform.

It may be good politics to associate capping malpractice damages with lowering healthcare costs but it's inconveniently untrue.

In Indiana, the State Department of Health issues a "medical error report" which consists of all medical errors reported to the state in a given 365 day period.  In 2010, the Department received 107 such reports of medical errors.  Some of these errors included 33 foreign objects retained in a patient after surgery (30 in hospitals, three in ambulatory surgery centers) and 14 surgeries performed on the wrong body part (12 in hospitals, two in ambulatory surgery centers). 

These 47 medical errors (nearly half of all reported in 2010) are very serious errors that may have resulted in serious or fatal injuries.  One can only speculate on the number of errors that went unreported. 

For our purposes, I would be very interested to know the number of medical errors in New Hampshire for a given year.  These are important questions that directly impact patient safety and the quality of healthcare.  They should be answered and made public.

Aldrick Kneppe died after a second surgery had to be performed in order to remove a surgical sponge that had been inadvertently left behind in a previous surgery.  In spite of safety measures desgined to avoid leaving sponges in surgical patients, 1,500 sponge cases occur each year, according to a 2003 study published by the New England Journal of Medicine. 

The health consequences of such medical errors can be dire and in some cases, are not known until years later when unexplained symptoms begin to surface. 

Once a surgical sponge is left in a patient and goes undetected, it becomes increasingly difficult to detect the foreign object.  That's why surgical safety checklists include sponge counts, tracking bar codes, and radiographic screening are vital to avoid these surgical errors.

A new study published in the Journal of the American College of Radiology found that avoidable communication breakdowns among diagnostic physicians correlates to a higher percentage of medical errors. 

According to UPI, "The study found the contributing factors in malpractice cases associated with communication failures include failure of physicians and patients to receive results, delays in report findings and lengthy turnaround time."

During the past decade, the number of diagnostic tests ordered for patients has markedly increased.  The increase coupled with poorly defined communications strategies among physicians has led to a significant increase in the number of medical errors. 

"Using data from the National Practitioner Data Bank, the study authors found the total indemnity payout across all medical specialties for U.S. claims related to the three types of communication failures they studied increased from $21.7 million in 1991 to $91 million in 2010."

The conservative Cato Institute, a Washington-based social policy think thank, has issued a position paper that argues that medical malpractice damage caps are bad for consumers.  The Institute notes that such caps are bad policy because they may allow for insufficient damage awards to victims of medical malpractice as well as provide little incentive to insurance carriers to penalize doctors who commit malpractice.

"If the medical malpractice liability insurance industry does indeed protect consumers, then
policies that reduce liability or shield physicians from oversight by carriers may harm consumers.
In particular, caps on damages would reduce physicians’ and carriers’ incentives to keep track
of and reduce practice risk."

It's refreshing to read an objective study on such an important public policy issue.

The instances of medical doctors facing criminal charges regarding medical errors or medical malpractice are rare.  However, they do indeed occur.  A case in point is the recent criminal trial involving Michael Jackson's doctor who stands accused of involuntary manslaughter.  The criminal charges stem from Dr. Conrad Murray's care of Michael Jackson.  Prosecutors argue that his medical care of Jackson was so grossly negligent that it led to Jackson's death. 

According to the criminal complaint, Murray allegedly gave Jackson doses of a powerful anesthetic called propofol to help him sleep. 

At the center of this criminal trial as well as any medical malpractice civil trial, the standard of care is a determining factor in the case's ultimate outcome.  Each state has different standards and definitions for what is deemed to be a reasonable standard of care.  If that care is breached, there may be grounds for a civil medical malpractice case.  It's extremely rare that such standard of care devolves into something which warrants criminal charges.

A multi-center diagnostic trial comparing computed tomography heart imaging with nuclear cardiology stress testing has found that the CT scan is faster, more efficient, and more accurate than the stress test when diagnosing chest pain complaints in the emergency room for low-risk patients. 

The research is published in the Sept. 26 issue of the Journal of the American College of Cardiology.

According to Beaumont Hospital's press release, "In the Beaumont study, lead investigators Gilbert Raff, M.D, director, Ministrelli Center for Advanced Cardiovascular Imaging, and James Goldstein, M.D., director, cardiology research and education, looked at the accuracy and speed of cardiac CT versus nuclear stress testing for low-risk chest pain evaluation.

"At a time when economic resources are constrained, while health care demand is increasing, it is important to compare the effectiveness of diagnostic methods not only for safety and accuracy, but for efficiency and cost," says Dr. Goldstein, professor of medicine with the Oakland University William Beaumont School of Medicine. "Consumers and insurers want high-value care that’s high quality at an affordable cost."

The study, called CT-STAT (Coronary Computed Tomographic Angiography for Systematic Triage of Acute Chest Pain) found that use of CT imaging for low-risk chest pain diagnosis was more rapid and less costly than rest-stress testing.

"CT angiography was 54 percent faster in diagnosis and 38 percent less expensive in terms of overall cost of emergency care with no difference in adverse cardiac events," says Dr. Raff. "The median cost of CT imaging was $2,137 versus $3,458 for stress testing."

The study, conducted June 2007 – November 2008, involved 749 patients at 11 university and five community-based hospital emergency rooms in eight states. It was supported by a grant from Bayer HealthCare, Berlin, Germany.

 

When it occurred on September 1, 2011, there was very little reporting on it.  More than two weeks later, the NY Times is one of the few if only national media outlets to report on it.  Yet, what happened that day has a profound effect on public safety, the quality of medical care patients receive and the public's right to access information about physicians. 

On September 1, 2011, the Health Resources and Services Administration (HRSA) removed the public's access to the National Practitioner Data Bank.  The public access file that was removed didn't name physicians who'd been reported to their state medical boards because of alleged medical malpractice.  It did however, serve as an informative source for the public and those interested in quality of care issues regarding how state medical boards deal with physicians who've been accused of medical errors and medical malpractice. 

Jessica Wapner, a freelance writer whose works have appeared in the NY Times as well as Slate, wrote an informative piece on the controversy for her blog today.  She gives the full history of the public use file as well as explores the various issues at stake.  It's well worth a read. 

Regular readers of this blog will know where our firm stands on this and similar issues.  In healthcare matters, information is key.  When access to information regarding medical errors and medical malpractice is restricted, everyone suffers.  This is not a good public policy move and should be reversed.

Today's issue of the New England Journal of Medicine has linked the proper use of electronic health records and better diabetes care and improved outcomes, according to one study.  While the researchers note that such a link has never been shown before, the new study does provide evidence that electronic health records may actually assist in improving diabetes care.

The authors of the study concluded, "These findings support the premise that federal policies encouraging the meaningful use of EHRs may improve the quality of care across insurance types." 

While this is one study in one area of medicine it does lend itself to further discussion of the role of electronic medical records in the management and practice of healthcare.  Prior to this study, we've chronicled medical errors caused by sloppy or incomplete paper health records.  There is a great deal of data that points to the possibility that paper records are not the most efficient nor the most accurate form of charting patient histories or recording treatment plans.  Perhaps this study is a step in the right direction that will provide impetus to expanding the use of electronic records.

When Republican Presidential candidate Rick Perry visited the Granite State on August 17, 2011 he told a gathering at a "Politics and Eggs" gathering in Bedford that his state of Texas has witnessed an increase in the number of doctors practicing in the state.  He cited tort reform legislation as the main reason for the increase.  Here's an excerpt of what the Texas Governor said: 

"I’ll tell you what one of the results was," he said. "This last year, 21,000 more physicians practicing medicine in Texas because they know they can do what they love and not be sued.  Some 30 counties that didn’t have an emergency room doc have one today.  Counties along the Rio Grande, where women were having to travel for miles and miles outside of the county to see an ob-gyn, for prenatal care and now they have that care."

That's wonderful news for the state of Texas if only it was accurate.  Politifact, an online investigative journalism site, did some research into Perry's claims and found them to be false.  Politifact rated his comments as "False" based on the number of actual doctors added to the state's healthcare rolls since tort reform was introduced in the state in 2003 as well as the reasons for the actual slight increase in the number of docs.  In actuality, the number of new doctors is around 5,000. 

Politifact also couldn't find evidence that the increase in doctors practicing in Texas was attributable to tort reform since the numbers had already increased prior to tort reform enactment in 2003.  The data shows the increase may be attributable to the state's population growth and not tort reform.  Here's an excerpt of the Politifact article:

"Jon Opelt, executive director of Texas Alliance for Patient Access, a group that supports tort reform and is funded by health care providers, sent us some analysis he had done that filtered out the population effect. Opelt said the higher rate for doctors -- 24 percent -- translates into an additional 1,608 physicians thanks to tort reform.

At least, that’s what he said when we first spoke to him. Later, after we showed him that the growth of doctors increased at a faster rate in the pre-reform years, Opelt sent us new numbers, saying tort reform brought 5,000 more doctors to the state and the ratio of doctors to residents has never been better. (We found those numbers to be a stretch: The upward revision comes from including administrators, teachers and other licensed doctors who don’t actually treat patients.)

In any event, from the pro-reform vantage point, the most accurate figure is 5,000 -- a far cry from 21,000.

But the case for Perry’s statement gets even shakier when you review numbers prior to the new malpractice rules. It turns out that in the nine years before tort reform, the number of doctors grew twice as fast as the population. So Texas did a pretty good job attracting doctors before the law changed."

Hopefully, those attending the local "Politics and Eggs" realize there was some "spam" served up at the event regarding tort reform and healthcare.  Kudos to Politifact for doing the research and checking the Governor's stats on the state of healthcare in the Lone Star state.

The Associated Press calls it the most comprehensive study in two decades.  The finding were published today by the New England Journal of Medicine.  The findings may surprise some who seek to characterize all medical malpractice claims as frivolous and blame all healthcare woes on medical malpractice lawsuits. 

The study made reference to an earlier study in New York that concluded that most of those injured never file a medical malpractice claim.  Some are dissuaded from doing so because of the high upfront cost in most medical malpractice cases.  The study found that only 1 in 5 malpractice claims conclude with a successful outcome for the injured party. 

According to the Associated Press, the study found:

—About 7.5 percent of doctors have a claim filed against them each year. That finding is a little higher than a recent American Medical Association survey, in which 5 percent of doctors said they had dealt with a malpractice claim in the previous year.

—Fewer than 2 percent of doctors each year were the subject of a successful claim, in which the insurer had to pay a settlement or court judgment.

—Some types of doctors were sued more than others. About 19 percent of neurosurgeons and heart surgeons were sued every year, making them the most targeted specialties. Pediatricians and psychiatrists were sued the least, with only about 3 percent of them facing a claim each year.

—When pediatricians did pay a claim, it was much more than other doctors. The average pediatric claim was more than $520,000, while the average was about $275,000.

Public health advocate Dr. Sydney Wolfe of Public Citizen expressed his disappointment that the study didn't address issues that might improve public health safety.

"The thing that's disappointing about their study is they don't focus on what can be done to prevent people from being injured," said Wolfe, who has pushed for more aggressive policing of doctors by state medical licensing boards.

This week, Illinois residents will be able to check their doctor's background.  The law, which takes effect this week, will give Illinois consumers the ability to check a doctor's criminal history, if the doctor has been fired, and if any medical malpractice claims have been filed in the last five years.

The bill has been fought by the physicians lobby for years.  However, a Chicago Tribune investigative report found that state regulators had allowed doctors to continue practicing medicine even after some doctors had committed serious medical errors and been convicted of sex crimes.  As he signed the bill into law yesterday, Governor Pat Quinn called the bill "the #1 consumer bill."  According to the Tribune, ""I think this is our best bill this year when it comes to empowering consumers, health care consumers," Quinn said.

The new law will provide consumers the freedom to make informed decisions about their healthcare providers and should be replicated in other states.

For years, a doctor's people skills were overlooked if the doctor was knowledgeable and skilled.  The patient was very often treated as a thing to be diagnosed rather than a complex human person.  Medical school training reflected this bias.  Now, that appears to be changing.

What started at Johns Hopkins two years ago has been replicated in other medical schools, the latest of which includes the University of South Florida.  "You had a diagnosis — breast cancer, diabetes, sepsis or asthma — whatever it was, it was focused on understanding the underlying science of the disease, not of the person with the disease," said Dr. David Nichols, vice dean for education at Hopkins. "That's where we are taking this now."

Given the complexity of illness and disease and the necessity of teamwork, a multi-disciplinary approach that emphasizes a holistic approach is long overdue.  The primary beneficiary of course will be the patient.  This relatively new approach was foreshadowed in the 1991 movie The Doctor in which William Hurt portrays an egotistical, successful surgeon who has no time for patients until he himself is stricken with throat cancer.

While Johns Hopkins has provided the impetus for the paradigm shift, many of the actual programs will be designed at the local level.  This may include videotaped sessions of interns speaking with patients and doctors following up with patients after they are discharged from the hospital. 

For too long, many doctors believed they had to keep a professional distance from their patients in order to remain objective and function properly.  Now, many new physicians will be trained to engage the patient as a person and not a disease.  In my opinion, this can only improve the quality of healthcare.  Some medical schools agree.

A substitute justice filling in on the West Virginia Supreme Court blasted the state's highest court in a 12-page dissent regarding its recent decision to uphold the state's cap on damages in medical malpractice cases.

Justice Ronald Wilson wrote in his dissent that the justices "capitulated to the West Virginia Legislature's political -- and unconstitutional -- mistreatment of medical malpractice victims, and by its decision, delivered the coup de grâce to the rights of thousands of West Virginians to be fully compensated for the losses caused by the negligence of medical professionals."

In 2003, the West Virginia legislature passed a bill that capped non-economic damages in medical malpractice cases at $500,000. 

"By hand-wringing about judicial restraint and deferring to the Legislature when considering an issue as serious as the one in this case," Wilson said, "the Supreme Court failed to preserve those human rights to which our legal system is committed."

Certainly, this is a strong dissent, especially for a substitute justice.  He is to be applauded for his honesty and courage in dissenting from this opinion.

Two states, West Virginia and North Carolina, demonstrated this week the polarized nature of medical malpractice reform.  In North Carolina, Governor Bev Perdue vetoed a medical malpractice reform bill that would have capped non-economic damages at 500,000 regardless of the severity of the damage.  “I commend the legislature for addressing this important issue, but, in its current form, the bill is unbalanced. I urge legislators to modify the bill to protect those who are catastrophically injured when the general assembly returns in July,” Perdue said.

In West Virginia, the state's supreme court voted in favor of upholding the state's 2003 law which capped pain and suffering damages at $250,000. 

"While one or more members of the majority may differ with the legislative reasoning, it is not our prerogative to substitute our judgment for that of the legislature, so long as the classification is rational and bears a reasonable relationship to a proper governmental purpose," Chief Justice Margaret Workman (D-W. Va.) wrote in the opinion.

Medical malpractice reform and legislative caps on damage awards are contentious issues.  However, one issue should be clear:  these so-called reforms and legislative damage caps erode and weaken the civil justice system in which a jury has the power to make decisions about awards and damages.  Our justice system is founded upon the jury process.  When that process is weakened through judicial or legislative fiat, we all lose.

The first Veterans' Administration lawsuit claiming a military veteran underwent a colonoscopy with an unsterilized scope is underway in Miami.  This is the first such trial after approximately 11,000 military veterans learned that their colonoscopy procedures had been performed with an improperly sterilized piece of medical equipment.  The incidents occurred in 3 VA hospital, one in Miami. 

The veteran, Robert Metzler, is claiming the unsterilized medical procedure has led to the contraction of hepatitis C which can lead to liver damage and cirrhosis.  According to the Miami Herald, "The VA lawyer didn’t contest the idea that improperly cleaned equipment might have been used in colonoscopies at the VA hospitals in Miami, Murfreesboro, Tenn., and Augusta, Ga. That much was conceded in a report by the VA’s Administrative Investigation Board in 2009. The investigation covered the period of 2004 and 2009 when the scopes were improperly used.Gonzalez said Metzler tested negative for hepatitis in 2006, got the colonoscopy in 2007and was told he has hepatitis C in 2009."

A California jury has awarded $2.25 million in an anesthesia brain injury lawsuit.  The suit charged both the anesthesiologist and the ambulatory care center with negligence. 

Local media reported, "According to the malpractice lawsuit, the anesthesiologist had a history of walking out of the operating room while patients were under the effects of anesthesia. In this case, the complaint alleges that the plaintiff had a reaction to the anesthesia and went into a deeper level of sedation than intended. The plaintiff’s attorneys argued that the anesthesiologist either left the room or left the plaintiff unattended, during which time the patient stopped breathing.

The lack of oxygen caused the plaintiff to suffer an anoxic brain injury, also known as cerebral hypoxia or hypoxic-anoxic injury. It is a serious, life-threatening injury that can cause permanent cognitive damage and can disable the victim."

Any medical procedure that requires anesthesia must be constantly monitored.  Each patient reacts differently to the anesthesia and requires vigilant monitoring and adjustments.  Any lack of monitoring or failure to adjust anesthesia may result in permanent neurological damage.

A fire that broke out during a cardiac pacemaker implantation surgery has resulted in a lawsuit being filed against the hospital, a doctor and an anesthesiologist. 

Selah Schultze had entered Texoma Medical Center in Texas on June 8, 2009 to have a pacemaker implanted.  During the surgery, a fire erupted that left burns on her face, head, neck, chest, and right breast. 

According to the lawsuit, " a cauterizer being used by Dr. Robert Wilcott ignited the fire, which was exacerbated by Dr. Villareal supplying Schulze with too much oxygen. The family claims that another factor in Schulze’s injuries was that she was wiped down with a flammable skin prep solution that should have been allowed to dry before surgery began."

As a result of the fire Ms. Schultze endured a number of plastic surgeries as well as a second pacemaker implant surgery.  She remains permanently scarred as a result of the fire.

It's estimated that between 550 and 650 such fires occur each year. 

The American Society of Anesthesiologists has released recommendations on actions hospitals can take to reduce the risk of surgical fires. These steps include:

• Perform regular operating room fire drills, which less than half of all U.S. hospitals currently conduct.
• Improve communications between surgeons and anesthesiologists, such as doctors announcing when they plan to use an electrosurgical tool, so the anesthesiologist can temporarily lower the oxygen supply.
• Expand training and education of medical staff on awareness and prevention of fires during surgical procedures.

An exploratory laparotomy resulted in a perforated bowel of Hanh Thi Ngo, who died as a result of the botched surgery.  The family of Hanh Thi Ngo brought a medical malpractice lawsuit against Dr. Jerone F. Schrapps, Christus Hospital St. Elizabeth, Christus Dubuis Hospital of Beaumont, and Southeast Texas Surgical Associates on May 25, in Jefferson County District Court.

As a result of the laparotomy that perforated her bowel, Hanh Thi Ngo suffered septic shock and multiple organ failure before being taken off life support.  She died on May 5, 2009.

The NY Times ran an intriguing front-page story today on the shifting political views of our nation's physicians.  According to the Times, as doctors move from business owners in private practice to employees at hospitals and other healthcare institutions, their political views are shifting.  While evidence of such a shift is highly anecdotal, it makes sense.  Thirty years ago, physican groups such as the American Medical Association supported efforts to limit liability for medical malpractice and lower insurance premiums.  Now, as physicians shift to employee status, their own priorities appear to be changing as well. 

“It was a comfortable fit 30 years ago representing physicians and being an active Republican,” said Gordon H. Smith, executive vice president of the Maine Medical Association. “The fit is considerably less comfortable today.”

According to the Times, "But doctors in Maine have abandoned the ownership of practices en masse, and their politics and points of view have shifted dramatically. The Maine doctors’ group once opposed health insurance mandates because they increase costs to employers, but it now supports them, despite Republican opposition, because they help patients."

If the article is correct, such a shift of focus would be welcome indeed.  If physicans support quality healthcare and an improved patient experience, the industry could make strides in improving the quality of healthcare while reducing medical errors.

According to the Administrative Office of Pennsylvania Courts, the number of medical malpractice lawsuits filed in the state is at its lowest in a decade.  In fact, the number of lawsuits has been cut nearly in half since stringent new rules were adopted in the state nearly a decade ago. 

Of course tort reform advocates hail the news as a victory for the insurance industry, especially the medical malpractice insurance carriers.  However, before the public accepts this as good news for the consumer, let's look more closely at what this actually means.  For instance, does it mean there has been a substantial increase in the quality of care for the citizens of Pennsylvania or does it mean that seeking civil justice after a medical error is just more difficult?  Those who favor restricting access to the courts argue that such measures reduce "frivolous lawsuits" without providing data to support such a claim.  In fact, medical errors continue to be a problem in this country and healthcare quality standards are not improving. 

National patient safety studies have demonstrated that there is indeed a healthcare crisis in this country and restricting access to the courts is not the answer.  Quality healthcare is the real issue and until an effort is made to address that issue, consumers are the real losers.

Characterizing the bill as inadquately providing for patient protection, Governor Brian Schweitzer of Montana has vetoed a medical malpractice bill that had received overwhelming support from Republican leadership.  The bill would have have made doctors exempt from civil medical malpractice lawsuits in cases where doctors provided a reason for not ordering a medical test. 

Gov. Schweitzer wrote in his veto letter, " "I issue this veto because I do not believe this bizarre, self-aggrandizing standard established in this bill provides adequate patient protection."

Good for Gov. Schweitzer.  Patient protection and their rights should be the most important issue in deciding any healthcare issue.

Three orthopedic surgeons have been disciplined by the New Jersey Board of Medical Examiners after the three failed to disclose their financial interests in an artificial spinal disk they were reviewing in clinical trials.  The obvious conflict of interest erodes the public trust in clinical trials as well as the objectivity of doctors who perform such tests. 

“The undisclosed conflicts of interest on the part of these doctors undercut public trust in the medical profession,” said New Jersey Attorney General Paula T. Dow in a statement.

The three surgeons are Richard A. Balderston, Thomas J. Errico and Jeffrey A. Goldstein.  The New Jersey Board's action against the three surgeons is unfortunately not without precedent.  Many doctors are subjected to huge financial temptations from pharmaceutical companies and medical device manufacturers who attempt to buy their approval.  Such practices erode the public trust and undermine the basic premise of scientific studies.

Joanne Doroshow of the Center for Justice and Democracy published a great article in the Huffington Post yesterday.  Doroshow debunked the popular notion that so-called medical malpractice reform is an integral part of any deficit reduction effort.  In fact, just the opposite is true.  This type of "reform" will actually increase not decrease the federal budget deficit.  It also further burdens victims of serious medical errors without holding hospitals and doctors accountable for improving patient safety.  Doroshow wrote in part, "On March 10, 2011, CBO provided a new analysis of H.R. 5, a bill before Congress that is considering these measures. CBO now says that enacting H.R. 5 would reduce total health care spending even less -- 0.4 percent. Yet to find even this small amount, CBO ignored factors that would not only lower this figure but also likely increase the deficit.

For example, CBO acknowledges but does not consider in its cost calculations the fact that these kinds of extreme "tort reforms" would weaken the deterrent potential of the tort system, with accompanying increases in cost and physician utilization inherent in caring for newly maimed patients. CBO notes, "The system has twin objectives: deterring negligent behavior on the part of providers and compensating claimants for their losses ..." In fact, CBO wrote, "imposing limits on [the right to sue for damages] might be expected to have a negative impact on health outcomes." Yet it brushed aside the fiscal impact of this not because it is untrue, but because there are too few studies on the topic."

Ms. Doroshow also points out that the Institute of Medicine calculated the costs of such medical errors at $17 billion to $29 billion annually.  Those calculations are 10 years old!  The Congressional Budget Office didn't even take into account these staggering numbers.

It should be clear that taking away the rights of those injured by medical errors is no way to reduce the federal budget deficit.  Perhaps it's good politics for some right now but it's surely bad public policy.

The US Supreme Court is considering whether to hear a case that could potentially lift the ban on military personnel suing the federal government in medical malpractice cases.  The case involves a former US Air Force Sergeant Dean Patrick Witt who was removed from life support in 2003 after a botched anesthesia procedure that left him brain dead.  He died on January 9, 2004. 

For the past 60 years, military personnel have been prevented from filing medical malpractice lawsuits because of the Feres Doctrine, a precedent that originated from a 1950 court case that ruled military medical mistakes were the same as battlefield injuries, making the armed services immune from civil litigation.

According to an Associated Press report, "The Feres ruling grew out of the Federal Tort Claims Act of 1946, which allowed lawsuits against the government for negligent acts under certain circumstances. Initially the law was interpreted to forbid lawsuits by military personnel and their families only for combat-related injuries and deaths, but the decision in Feres vs. United States — involving a soldier who died in a barracks fire — widened that exclusion to bar any lawsuits over injuries “incident to military service.”

The Witt case has intensified the debate and galvanized military families who support a change in the law.

NY Times' columnist Maureen Dowd wrote a column this morning that was both disturbing and sobering.  In order to illustrate her point, Dowd writes about her brother's death in the ICU.  He was hospitalized with pneumonia and then contracted four other infections in the hospital.  Dowd asked a young doctor how her brother could have contracted the infections.  He responded matter-of-factly by saying they could have originated from any source including his necktie which had just brushed against Dowd's brother.  When Ms. Dowd asked him the obvious question "Why then are you wearing a tie?" The doctor shrugged and left without answering her. 

The story describes two preventable medical errors.  First, infections acquired in hospitals are quite common and also preventable.  Second, the lack of communication between the doctor and a member of the patient's family.  The latter is also preventable if the healthcare culture were to change.  In the column, Dowd describes her feelings poignantly,

"I saw infractions of the rules in the I.C.U. where Michael died, but I never called out anyone. I was too busy trying to ingratiate myself with the doctors, nurses and orderlies, irrationally hoping that they’d treat my brother better if they liked us."

Dowd interviewed Dr. Peter Pronovost of Johns Hopkins Hospital who addressed both medical errors.  According to Pronovost, hospital acquired infections are preventable if doctors follow established protocols and checklists.  In addition, Pronovost believes the medical culture has to change so that patients and their families feel free to challenge a doctor.  Pronovost notes, “There’s no doubt that it’s really difficult to question physicians,” Dr. Pronovost says. “It’s hard even for me when my wife or my kids are ill. Many clinicians aren’t the most welcoming. They give verbal or nonverbal clues to say, ‘Hey, I have the answer.’ We just need to change the culture. The patient really is the North Star.”

We are far from a culture where "the patient is the North Star".  Perhaps Dowd's column is a step in the right direction.  As doctors often say, diagnosing the problem is half the battle in curing the disease.

The State of New York will pay for medical errors that cause birth injuries rather than hospitals or other healthcare institutions.  Of course, a lawsuit will still have to be filed and the defendant party will still have to be found culpable for the birth injury,  However, in those circumstances in the state of New York where a birth injury occurs and a hospital is found culpable for the injury, the state will pay for the damages. 

The state funds to cover such birth injuries will come from revenues raised from cigarette and health taxes under the 1996 New York Health Care Reform Act.

This morning the Wall St. Journal profiled a surgeon on the front page.  The story was disturbing on a number of levels, not the least of which concerned allegations of unnnecessary spinal surgeries and gaming the Medicare system to make profits.  These are just some of the allegations leveled against neurosurgeon Dr. Vishal James Makker of Portland Oregon. 

The Wall St. Journal relates the stories of several patients who submitted to numerous spinal surgeries in the short span of a few years.  In one instance, Makker had performed surgery on Ronald Johnson's spine six times in the last two years.  Makker's critics, including some patients who've sued him for malpractice, assert that the repeat surgeries are performed because of the profit margins and not any medical benefit further surgery might provide. 

According to the WSJ article, "A Medicare database analyzed by The Wall Street Journal reveals that Dr. Makker has had an unusual propensity for performing such multiple surgeries on the spine. The data show that in 2008 and 2009, Dr. Makker performed spinal fusions on 61 Medicare patients. In 16 of those cases, he performed a total of 24 additional fusions. That gave him an overall rate of 39 additional fusions per 100 initial fusions, the highest rate in the nation among surgeons who performed spinal fusions on 20 or more Medicare patients during those two years."

Makker has been the target of an FBI investigation which was later dropped.  The Journal couldn't provide the reason for the investigation or the circumstances under which it was dropped however, the article intimated that some of Makker's Medicare billing behavior showed signs of fraud.

"Several years ago, the Federal Bureau of Investigation began asking questions about Dr. Makker, according to two people interviewed by FBI agents. Dr. Makker says the FBI agents were part of an investigation related to billing issues by the U.S. attorney in Portland. He says his criminal defense attorney, Stephen Houze, was recently notified by the U.S. attorney in writing that the investigation had been abandoned for lack of evidence. The FBI declined to comment.

Over about three years, from early 2008 through early this year, he billed Medicare more than $5.4 million for all his work, but was paid only $597,510, for a payment rate of 11%, according to a person familiar with his billings. An analysis of a 5% sample of the Medicare billing of 3,247 spine surgeons in 2008 shows the average surgeon was paid 21% of the sums submitted. Law-enforcement officials who specialize in Medicare fraud say lower rates of payment can be red flags for fraud."

Because information about doctors such as Dr. Makker is generally not well known by the public, the Wall St. Journal story is especially important and informative.  The healthcare culture is too often a closed system in which information about erring doctors is kept secret and out of the view of the public.  This can be a serious public safety concern.

The Iowa House of Represenatives has done what their colleagues from 24 other states have already done-approve legislation that would require a "certificate of merit" within 6 months for each expert that will testify in a medical malpractice lawsuit.  One legislator aptly termed the bill "legislation in search of a problem". 

However, the Iowa bill reflects a certain prejudice against consumers that can be found in numerous parts of the country.  In spite of the overwhelming evidence of the unfettered increase in medical errors, there is still the persistent prejudice of the so-called "frivolous lawsuit". 

Some astute politcal theorists have written books about this phenomenon.  George Lakoff, a University of California professor of cognitive linguistics is perhaps one of the better known academicians to have written about this phenomenon and how it affects the very fabric of our culture.

At any rate, Iowa has just made it more burdensome for the ordinary American to seek justice in a civil court of law.

I came across a thoughtful blog post concerning an Indiana medical malpractice verdict that was overruled by the state's medical malpractice caps statute.  The issues presented by the author are worth pondering.  The case involved a misdiagnosis of colon cancer which resulted in the death of a relatively young man, Jeffrey Davis.

"Here is what tort reform has done in this case. It has barred Mr. Davis from receiving a verdict that a jury of his peers deemed just. It has barred a group of jurors in Indiana from having their voices acknowledged. It has barred his health insurance carrier from being adequately reimbursed. It diminishes the deterrence factor of having to be accountable for your actions because doctors and medical providers will be protected the most when they commit the most egregious of errors. And most importantly it keeps money in the pockets of insurance companies rather than victims."

In sum, this is the result of a legislature restricting the rights of its citizens to seek and find justice.  It's also an encroachment of one branch of government upon another-namely the legislative over the judicial. 

Dr. Martin Brooks, a North Carolina physician who has practiced medicine for 50 years, has spoken publicly against a bill that would grant immunity to doctors and emergency rooms in medical malpractice cases.  Dr. Brooks called the bill "just plain wrong".  He added that if passed, the legislation would significantly "reduce the quality of medical care given to the people of North Carolina." 

Dr. Brooks is not alone in his opposition to the controversial leglislation.  According to the Power News Network, he is joined by other prominent North Carolinians. 

"Dr. Brooks is joined in his public opposition to NC Senate Bill 33 by North Carolina Supreme Court Justice I. Beverly Lake, Jr. who calls the bill “unnecessary and unconstitutional”. Additionally, retired North Carolina Supreme Court Justice Edward Thomas Brady has added his voice to the outcry against the bill along with NC Coalition for Patient Safety and NC Advocates for Justice."

The Huffington Post published an insightful piece today on the real nature of tort reform.  In the midst of the federal budget wrangling, some lawmakers believe that tort reform a.k.a. preventing citizens from access to the civil justice system, is the panacea for our nation's budget ills.  Yet, tort reform and their advocates don't address the real issue with healthcare in this country.  Too many medical errors are committed each and every year.  These errors are often preventable but increase healthcare costs as well as injure and kill thousands of patients each year.  In the Huff Post article, Pearl Korn writes, "250,000 Americans die each year due to those errors, and close to 900,000 deaths in total per year come as the result of unnecessary surgery, hospital-acquired infections, adverse drug reactions, medical errors, even bedsores. From adverse drug reactions and medical malpractice alone, the number of deaths was 420,000 in 1997, as reported by Dr. Lucien Leape of Harvard. If this isn't a crisis, I don't know what is. The pain and suffering is enormous, and so is the financial cost. It would be reasonable to assume that at least $200 billion or more per year is added onto our national healthcare costs as a result of these errors, and we can anticipate these numbers will continue to rise yearly unless there is intervention and some serious changes begin to take place. Safety must become the major priority, instead of profits. A priority shift is imperative."

It's time our lawmakers take these numbers into consideration before they push more tort reform, which hasn't worked in three decades to control costs or improve healthcare.

The impending showdown between House Republicans and the Obama Administration over the federal budget has no clearer battlefield than the issue of medical malpractice.  The Republicans' clarion call for decades now has been tort reform and stopping the "frivolous lawsuits".  Yet each time they mention the phrase they fail to cite a concrete case.  They scarcely have time to take a breath before the words "trial lawyers" are also thrown into the frothy mix. While this makes for good theater, it has very little to do with the truth or the reality of the situation in America today.  The real issue isn't lawsuits or tort reform but patient safety.  In spite of our technological sophistication and scientific advances, 100,000 Americans lose their lives each year due to medical errors that are preventable.  This is the real issue.  Yet, we often hear rhetoric from our elected officials that would lead us to believe that fiscal responsibility has nothing to do with patient safety. 

Our form of democracy works precisely because there are checks and balances.  It works because ordinary citizens have access to a civil justice system in which they are able to address harmful conduct.  It works because ordinary folks still believe that they have the same rights as the rich and powerful.  That's what makes this country great.  That's what makes us the gold standard for the rest of the world.

Rep. Phil Gingrey (R-GA) has captured the attention of the national media for his sponsorship of legislation that would severely restrict medical malpractice awards. The media's focus has not been on any aspect of the bills Gingrey has sponsored but rather on the fact that Gingrey himself settled a medical malpractice lawsuit in 2007 for $500,000.  Before Rep. Gingrey was elected to Congress in 2002, he was a practicing obstetrician for three decades.  In fact, the 2007 medical malpractice settlement wasn't the first time he had faced a malpractice lawsuit.  According to the NY Times article, Gingrey had testified in a pre-trial deposition that he had been sued for malpractice on three previous occasions resulting in a jury verdict against him, a financial settlement, and one case that was dropped.

In discussing his proposal to restrict medical malpractice claims, Rep. Gingrey often refers to such cases as "frivolous".  The NY Times described the 2007 case this way:  
"The $500,000 settlement involving Dr. Gingrey arose from a case filed in 2002. At that time, a Georgia couple, Kimberly D. Walker and Scott M. Walker, sued him, two other obstetricians, a Georgia hospital and two surgeons.  Among other things, the lawsuit charged that the doctors had failed to properly diagnose that Mrs. Walker, who was experiencing severe abdominal pains, nausea and other problems, was suffering from acute appendicitis.

When Mrs. Walker’s appendix burst, it caused a huge infection that led to the loss of her 15-week-old fetus. She also developed respiratory distress, and after a month on a mechanical ventilator, suffered a stroke that left her partially disabled, court papers state."

The bill sponsored by Rep. Gingrey would limit pain and suffering damages to $250,000, restrict fees paid to lawyers representing injured patients, and bar punitive damages in cases where patients are injured by medical devices and pharmaceutical drugs.  Of course, those who favor this legislation know that such proposals would severely restrict patients' access to justice in a civil court.  That is the end goal of such legislation and its bad for all of us, especially those who are concerned with patient safety.

The irony of a doctor who has been sued for medical malpractice on more than one occasion has not been lost on the national media.  Here are some headlines:  "Gingrey Faced the Kind of Malpractice Suits He Now Hopes to Limit" (Atlanta Journal Constitution), "Malpractice Bill Raises Issues about a Lawsuit" (NY Times), and "Malpractice Bill Sponsor Target of Many Suits Himself" (Mother Jones).

Let's hope members of Congress recognize the same irony and reject such anti-consumer legislation.

As Mark Abramson wrote in the last blog post, emergency rooms are often busy, chaotic places and rife with potential medical errors.  A new study by University of Indiana researchers and published in the Annals of Emergency Medicine.  The research shows that emergency room doctors are subjected to numerous interruptions from patient care by a wide variety of issues not always related to the patient.

"This report is more groundbreaking, in that we found that in spite of moving toward electronic medical records and point of care testing systems, we haven't increased the amount of time ED physicians spend on direct care activities," says Carey D. Chisholm, MD, lead author an emergency room physician at Indiana University School of Medicine and Methodist Hospital in Indianapolis

That so little time is spent in direct patient interaction, or physically examining the patient, is a concern, Chisholm says.

"Facets of communication are facilitated when you have direct interaction. And the fact that so much of this care has to take place away from the bedside does not facilitate communication between the patient and the physician and their family."

Medical errors are often committed by actions or omissions.  However, in this instance, the process is the culprit.  If patient care processes in emergency rooms were streamlined so that doctors could focus first and foremost on patient care with fewer interruptions, it seems from this study that there would be fewer medical errors.

It was only one line in a presidential State of the Union address.  However, the one line has caused quite a media buzz ever since.  The one line, in case you missed it-""I'm willing to look at other ideas to bring down costs, including one Republicans suggested last year—medical malpractice reform to rein in frivolous lawsuits."  The line drew cheers from some Republicans and the US Chamber of Commerce.  Of course, they blame the healthcare crisis on the lack of tort reform and the calamitous "frivolous lawsuits". 

In truth, it may be a good line to score political points with the opposition party, but the assertion about frivolous lawsuits is simply not true.  Studies, including one from Harvard's School of Public Health, have shown that frivolous lawsuits are few in number.  The Congressional Budget Office has also submitted data that tort reform would do little to bring down the costs of healthcare.

If we're serious about real healthcare reform, including reducing the costs of healthcare, we'll focus our efforts on improving patient safety and reducing medical errors.  This won't win political points but it might just improve our healthcare system.

Joanne Doroshow, Executive Director of the Center for Justice and Democracy, has offered important testimony concerning "Medical Liability Reform-Cutting Costs, Spurring Investment, Creating Jobs".

According to Doroshow's testimony, the proposal would lead to an increase in medical errors and restrict access to the courts for those injured through medical negligence.

Doroshow stated, "Medical negligence kills at least a hundred thousand people every year and injures ten times more, costing the economy tens of billions of dollars annually.  This legislation would weaken the legal rights of sick and injured patients and lessen the accountability of incompetent doctors and unsafe hospitals. Meanwhile, the insurance industry gets to pocket money that should be available to the sick and injured, forcing many to turn elsewhere for help, including Medicaid, further burdening taxpayers."

In her testimony opposing the anti-consumer legislation, Doroshow noted that the occurrences of medical malpractice in hospitals continues to grow at an alarming rate.  At the same time, malpractice claims and lawsuits are dropping significantly.  In her testimony, she cited the Harvard School of Public Health's finding that the portrayal of the malpractice system stricken with frivolous litigation is overblown and exaggerated.

This new legislation would restrict the rights of ordinary citizens harmed by medical negligence.  Furthermore, it would serve to increase the profits of insurance companies at the expense of all American taxpayers. 

Medical errors cost lives and money.  The prevention of such errors should be an integral part of any substantive healthcare reform in this country.  In order to prevent these medical errors, data must be obtained and maintained properly so that healthcare professionals can learn from previous mistakes and how to avoid them in the future.  This data must also be transparent.  The public has a right to this information.  It is of little benefit to the consumer if this type of data is gathered and analyzed but kept confidential, out of the view of the public.

The Wisconsin Legislature is considering legislation that would keep such incident reports from the public.  The "Health Care Quality Improvement Act" would prohibit medical error reports from being used in court.  According to Milwaukee Journal Sentinel, "Health care systems have policies that require reporting medical errors and near misses, as well as policies that require disclosing medical errors to patients and family members. Ethical guidelines also require doctors to tell patients when they have been harmed by a medical error. But surveys have shown that fewer than half of medical errors are disclosed to patients."

If medical errors occur, patients have a right to know about them.  If this information is kept from them, their ability to make healthcare choices is severely hampered.

In the final analysis, which is more important- a doctor or hospital's comfort level in disclosing medical errors or patient safety?

The Justice Department has agreed to pay a Virginia couple $2.3 million in a birth injury medical malpractice lawsuit.  The lawsuit alleged that Portsmouth Navy Medical Center failed to provide adequate care in the birth of Scott and Michelle Holweger's child.  In resolving the medical malpractice claim, the Justice Department admitted no liability and denied any malpractice.  The majority of the settlement funds will be placed in a trust fund to care for the ongoing needs of the child.

Birth injury lawsuits typically arise when the medical staff fails to recognize and act upon signs of fetal distress.  Neurological injuries are also common and may result from oxygen deprivation, blood loss, or damage to the umbilical cord.  A child born with brain injuries may suffer from seizures, cerebral palsy, and severe mental and cognitive impairment.

A new medical study has concluded that 20% of cardiac defibrillators surgically implanted in patients are done so without decent evidence the medical device will improve the patient's condition. 

According to the Associated Press story, "Patients who've had a recent heart attack or recent bypass surgery aren't good candidates for defibrillators, for example. Guidelines don't recommend them for people newly diagnosed with heart failure either and those so sick that they have very limited life expectancies won't be helped. But in the new study, which examined nearly four years of national data, 22 percent of the implant surgeries were in patients who fit one of those categories."

The study will appear in tomorrow's edition of the Journal of the American Medical Association and covered 112,000 patients from 2006 until 2009.

A joint investigation by National Public Radio and ProPublica has discovered that soldiers fighting in Iraq and Afghanistan are not being treated for traumatic brain injuries suffered in combat.  Traumatic brain injury is considered a "signature" injury in both wars.  Yet, the military is failing to properly diagnose and treat thousands of soldiers suffering from this debilitating injury, according to the investigation. 

In spite of pressure from Congress and healthcare experts, TriCare, an insurance-style program which provides medical care to nearly 4 million troops, has refused to provide cognitive rehabilitation therapy to troops suffering from brain injuries.  TriCare officials argue that the therapy is not proven to be effective in treating brain injuries.  However, top neurologists consulted by NPR and ProPublica disagree with TriCare's decision.

According to the investigation, "But an investigation by NPR and ProPublica found that internal and external reviewers of the Tricare-funded assessment criticized it as fundamentally misguided. Confidential documents obtained by NPR and ProPublica show that reviewers called the Tricare study "deeply flawed," "unacceptable" and "dismaying." One top scientist called the assessment a "misuse" of science designed to deny treatment for service members."

A Louisiana appeals court has overturned the state's cap on damages in medical malpractice cases.  In its ruling, the court called the cap unconsitutional. 

"The state offered no evidence in this case...to refute the fact that the cap discriminates against Taylor and her parents by limiting their general damage recovery to a single $500,000 payment, while allowing other less severely injured victims to fully recover their general damage awards," Judge Sylvia Cooks wrote in the court's lead opinion.

The case involved newborn Taylor Oliver who was seriously injured after being treated by a nurse who held only a high school diploma.  Taylor and her parents made 32 separate trips to the clinic and Taylor was prescribed 30 different types of medicines.  According to Louisiana law, the registered nurse practitioner, had a statutory duty to consult a physician but she never did. 

When Taylor was 14 months old, her parents took her to a hospital which diagnosed her with neuroblastoma, a childhood cancer.  A clear sign of the disease is swelling and bruising around the eyes which Taylor had since the age of 6 months.  If the correct diagnosis is made and treatment initiated within the first year of life, the survivor has a 90% chance of an event-free recovery.  Unfortunately, in Taylor's case it wasn't discovered until she was 14 months old.  Because of the cancer, Taylor's head is misshapen, her eyes are abnormally large, and she is legally blind.

Taylor's parents, Joe and Helena Oliver, sued the clinic and prevailed at trial with a jury verdict of $6.2 million.  However, the award was reduced to $500,000 due to the state cap on damage awards.

Tort reform has been the goal of many so-called pro-business lobby groups for decades now.  Their argument is always the same-limit the liability for medical errors and healthcare problems, including the cost of healthcare, will be solved.  This argument has won some support in states across the country. Yet, in each and every instance it fails to take into account the true goal of healthcare, which is patient safety.  My colleagues and I have blogged on this topic numerous times.  None of these tort reform measures have improved the quality of healthcare or improved patient safety.  In fact, during this time, patient safety has declined while medical errors continue unabated.  Patient safety is the real issue.  The universal protocols and standard operating procedures that have been advocated by patient advocates would indeed reduce healthcare costs.  Medical errors increase the costs for all of us and severely impact the lives of thousands of patients who rely on a basic standard of care.

Real healthcare reform should focus on the quality of health services provided to the patient as well as a real, committed effort at improving patient safety. 

A few years ago, the National Quality Forum, published a list of 28 medical errors that should never occur, primarily because they are completely preventable medical errors that lead to medical malpractice.  Some of these "never" medical errors include surgical errors such as operating on the wrong body part or operating on the wrong patient.  Another surgical error that should never occur concerns leaving a surgical instrument or other type of foreign object in a patient after surgery.  The National Quality Forum lists other medical errors such as the use of contaminated drugs, prescribing the wrong drugs, dosage errors, and malfunctioning medical equipment.

While these errors are listed as events that should never occur, they do happen with alarming frequency.  In some instances, the harmed patient is never told about the error.  In many cases, this causes further complications and serious health risks including further surgeries to repair the error, prolonged hospitalization, and even death.  There are established protocols in place so that these types of errors never occur.  If the protocols are ignored or not properly implemented, the patient suffers.  The goal of healthcare should be first and foremost patient safety.

"I hope that none of you ever have to go through what my patient and I went through," he wrote. "I no longer see these protocols as a burden. That is the lesson."

Those are the words of Dr. David Ring, a hand and arm surgeon at Massachusetts General Hospital which were published in this week's edition of The New England Journal of Medicine.

To his credit, Dr. Ring asked for a discussion of the medical errors that led to the wrong operation on his patient.  Rather than performing a trigger-finger release procedure on the patient, Dr. Ring mistakenly performed a carpal-tunnel syndrome correction instead.  In his recollection of the day's events, Ring noted a high level of tension in the surgical wing.  Other surgeons were behind schedule.  According to the Boston Globe, "The mistake occurred at the end of a long day, which included an emotional encounter with the previous patient over use of a local anesthetic. The operating room was changed at the last moment, the nurse who had done the pre-operative assessment was not there, the correct arm was marked but not the incision point, and Ring's speaking to the patient in Spanish was mistaken as the "time out" before proceeding, which is a moment when the surgical team stops to be sure they are clear on what needs to be done. No checklist -- a standard series of questions -- was run through."

Dr. Ring made public his errors to emphasize the need for following proper checklist procedures and universal protocols, especially in moments of high stress, fatigue, and chaos in the operating room.  Medical errors are made when doctors and healthcare workers forego these vital checklists and protocols.  Hopefully, Dr. Ring's colleagues will read this nightmare scenario and change their behaviors and attitudes about the procedures and checklists.  They are in place to protect the patient and improve patient safety.

Birth injuries are devastating to the child and the parents.  The financial burdens caused by such injuries may last a lifetime. 

A birth injury lawsuit filed in Ohio alleged that the doctor, Tara Shipman, ignored information from a fetal heart monitor indicating the birth required a cesarean section.  As a result of the botched birth Haley Cobb was born with cerebral palsy and would require a lifetime of expensive medical care. 

The Ohio jury agreed with the Cobb family and found that Dr. Shipman's negligence was the cause of Haley's cerebral palsy and awarded $13.9 million to the Cobb family—the largest settlement in a malpractice case in Trumbull County.

A new study published this month in the Archives of Surgery note that surgical mistakes and errors continue to plague the healthcare system in spite of the Joint Commission's 2004 implementation of a universal protocol designed to avoid such errors. 

"What is shocking about the data is that each and every one of those wrong-site, wrong-patient errors is really an event that should never happen," said study author Dr. Philip F. Stahel, a visiting associate professor at the University of Colorado School of Medicine in Denver.

"These happen much more frequently than we think. This is just the tip of the iceberg," he said. "Introducing the universal protocols have not reduced the frequency of these events."

Stahel believes that diagnostic errors and poor communication are the culprits behind the surgical errors.  According to his study, operations on the wrong body part are due to errors in judgment 85% of the time while 72% of the time errors occur due to a failure to adhere to the "time-out" prior to surgery as mandated in the universal protocol.  He believes a system of checks and balances cannot replace personal accountability.  "We are going from a culture of blame to a culture of system safety, and we should move on to a culture of patient safety and accountability," he said.

 

Healthcare reform has dominated the news the past 12 months.  This year's healthcare legislation passed by Congress and signed into law by President Obama provides healthcare to more Americans.  However, the quality of that healthcare remains a challenge for consumers and healthcare providers alike.

It's been 11 years since the publication of the federal report "To Err is Human".  Yet, the quality of healthcare has seen little improvement since that time.  The non-profit educational organization, the Institute for Healthcare Improvement, estimates that there are still 15 million instances of medical harm occurring each year in the United States.  Of those 15 million, 200,000 deaths are attributable to medical error and hospital-acquired infections.

While the federal government has expanded access to healthcare, it has left it to the individual states to implement healthcare quality reforms.  Unfortunately, few states have acted to improve healthcare quality.  23 states have no medical error detection system.  Those states that do have such a program still miss medical errors, according to an ongoing investigation by Hearst newspapers.

According to the Times-Union, states which report medical errors are still failing to catch 75-97% of harmful events.

"They are very clearly missing the vast majority of events," said Dr. Brent James, chief quality officer at Intermountain Healthcare of Utah, whose groundbreaking research helped reveal the magnitude of under counting. "The evidence of that is overwhelming."

When Palm Beach County Judge Nelson E. Bailey entered Good Samaritan Hospital in West Palm Beach Florida for surgery to remedy his diverticulitis, he undoubtedly was looking forward to the day when he'd be pain free.  However, the 67 year old judge found the pain to be worse after the surgery.  His primary care doctor couldn't determine the source of Bailey's pain.  CT scans also were not able to locate the culprit-surgeons had left a 1 square foot of surgical sponge inside him.  Five months after the initial diverticulitis surgery, Judge Bailey endured another surgery to remove the sponge which had been soaking up pus and bile.  The damage was so severe that surgeons had to remove part of his intestine.

Unfortunately, this type of surgical error is more common than the general public might think.  According to an MSNBC report concerning the judge, "The Journal of Radiology calls the leaving behind of surgical objects in patients a “highly underestimated problem,” and a recent report says that some 1,500 patients in the U.S. find themselves in the same boat as Bailey every year — with foreign matter left in their bodies after surgery. And the most common items left behind are surgical sponges, though not all are as large as the one found in Bailey."

That's 1,500 patients each year that suffer further damage to vital organs and needless pain because a surgeon left a sponge or a surgical instrument in the body.  These medical errors are avoidable and there are established protocols to avoid such errors.

Judge Bailey settled his claim against the hospital but may sue other healthcare officials, including two radiologists and his surgeon.  The surgical error has left him unable to pursue activities such as horseback riding.

If leaving the surgical sponge in his body cavity wasn't bad enough, Judge Bailey was also given the wrong post-op medicine that elevated his heart rate to the point he nearly suffered a heart attack.  The correct medicine was prescribed to lower his blood pressure.

In settling his claim with the hospital, the judge insisted that he be allowed to discuss his ordeal publicly.  I commend the judge for publicly disclosing his ordeal.  Perhaps news of this medical horror story will help others avoid a similar fate.

We witnessed another important primary in the Granite State yesterday.  Some of the races were extremely close such as the Republican Primary for US Senate between Kelly Ayotte and Ovide Lamontagne.  Whether your candidates won or lost is secondary to the fact that you became involved in the process.  Our state and our country need the citizenry to engage in public policy debates and elections in order to thrive.  We are blessed to live in a democratic republic in which we elect those who will represent us in our local, state, and federal government.  However, this form of government only works when the people exercise their rights by voting and becoming involved in the political process.

If you're skeptical about the political process, just remember this is the system our brave young men and women in the Armed Forces have fought for since 1776.  Countless generations have sacrificed their lives so that we can exercise our right to choose our elected officials.  This is not only our right but our privilege. only our right but our priviledge.  This is what makes our country the greatest nation on earth. 

Officials at Northern Westchester Hospital in New York have decided to appeal last year's $56 million verdict stemming from a shoulder dystocia lawsuit.  The jury agreed with the parents of an infant whose shoulder became stuck against his mother's pelvis during delivery.  The jury found that the medical staff failed to rectify the situation in a timely manner.  Their failure to act led to the child being born with brain damage, nerve damage, internal bleeding, and multiple bruises.  Seven years after the botched birth, the child continues to suffer from neurological deficits, aspiration pneumonitis, and impaired speech.

If a child becomes stuck in the birth canal during shoulder dystocia, there's a potential the child will suffer oxygen deprivation that can lead to brain damage, cerebral palsy, and other disorders, including developmental problems.  Birth canal injuries can have severe and permanently debilitating effects. 

For more information, please visit our new website http://www.arbd.com/birth-injuries

 

It's been widely reported that in 2008 the United States spent $19.5 billion on medical errors.  While the financial number is staggering, an analysis of those numbers gives a good sense of the state of healthcare in this country.  $17 billion of the $19.5 billion was directly related to inpatient, outpatient, or prescription medicine errors.

According to CMIO, a health industry publication, "The 10 most common errors were: pressure ulcers; post-op infections; device complications; postlaminectomy syndrome; hemorrhages; infections following an infusion, injection, transfusion or vaccination; pneumothorax; infections from a central venous catheter; other complications of an internal device, implant and graft nature; and ventral hernias. According to the researchers, these 10 errors accounted for 69 percent of the total medical errors."

The number of patients receiving excessive radiation after undergoing scans has increased to the point that the FDA is investigating and the NY Times covered the issue in a front page story today.  While the initial paragraphs of the Times' story highlighted the immediate effects of the excessive radiation, the long-term effects may include an increased risk of cancer and other health issues. 

The Times' story found that radiation overdoses has become more widespread than previously thought and the potential for serious health problems resuling from the excess radiation may pose unknown but serious future health risks. 

“I cannot believe that this is not occurring in the rest of the country,” said Kathleen Kaufman, head of radiation management for the Los Angeles County Department of Public Health. “That’s why we are so keen on the rest of the states to go look at this.”

Furthermore, it's disconcerting that, in some instances, the NY Times appear to know more about the problem than the FDA.  According to the Times,

"The F.D.A. was unaware of the magnitude of those overdoses until The Times brought them to the agency’s attention. Now, the agency is considering extending its investigation, according to Dr. Alberto Gutierrez, an F.D.A. official who oversees diagnostic devices."

Considering the number of patients who receive scans today, excess radiation overdoses may be a serious health crisis that demands immediate attention.

A NY jury found in favor of a mother who was injured during childbirth.  34 year-old Tina Holstein, a home health nurse, entered Community General Hospital in Syracuse NY to give birth to her third child.  After the child was delivered Holstein began vomiting.  She was administered an injection of an intramuscular drug in order to stop the vomiting.  However, the injection was administered properly and caused permanent injury to her sciatic nerve.

The jury found for Tina Holstein and awarded her damages of $1.69 million for the 2007 birth injury.  While the medical malpractice lawsuit against the nurse who gave the injection was dropped, the jury found the hospital vicariously liable for the nurse's wrongful actions.

The FDA has recalled Baxter International's Colleague infusion pumps after the company failed to take proper and timely corrective action to fix problems with the IV pumps.  "Baxter has failed to adequately correct, within a reasonable timeframe, the deficiencies  in the Colleague infusion pumps still in use," the FDA wrote in a letter it sent Baxter on Tuesday.

The IV pump recall affects approximately 200,000 pumps that are primarily used in hospital settings.  The pump defects can be serious because they may shut down or failed to deliver the correct amount of medication to the patient.

Electronic infusion pumps in general have come under FDA scrutiny recently as the federal agency has received an increase in the number of adverse events involving the IV pumps.

The Washington State Supreme Court has struck down a state law that requires a 90 day waiting period prior to filing a medical malpractice lawsuit.  The waiting period legislation was one of several legislative changes made concerning medical malpractice cases in 2006.

The Washington Supreme Court overturned the waiting period requirement because, according to the Court, the notice violated the separation of powers between the legislative and judicial branches of government.  The 6-3 ruling marks the second time in a year that the courts have rejected attempts by the state legislature to reform medical malpractice procedures.

Another legislative attempt at malpractice reform was thrown out by the courts last September.  The court ruled that a law requiring injured parties to first obtain a certificate of merit before filing a medical malpractice lawsuit was a violation of the separation of powers' doctrine as well as an undue restriction on a citizen's right of access to the judicial system.

According to the Seattle Post Intelligencer, "The courts already have procedural rules for filing civil suits, and adding a 90-day notice "conflicts with the judiciary's power to set court procedures," Justice Charles Johnson wrote for the majority.

Civil lawsuits against GlaxoSmithKline, the manufacturer of Paxil, an antidepressant drug belonging to the class of drugs known as selective serotonin reuptake inhibitors or SSRIs, have settled prior to trial in Philadelphia.  According to the National Law Journal, only one of the Paxil lawsuits have gone to trial. 

The birth defect lawsuits allege that pregnant women who've taken Paxil to fight depression are at a greater risk of giving birth to babies who suffer from birth defects, particularly cardiac defects. 

In 2005, the FDA issued a Public Health Advisory regarding Paxil side effects and warned healthcare providers about two studies linking Paxil to a higher risk of birth defects in children whose mothers had taken the drug. 

In 2006, the FDA instructed GlaxoSmithKline to change the drug label to include a warning about specific birth defects including Persistent Pulmonary Hypertension (PPHN), a serious respiratory disorder that prevents the newborn from receiving proper amounts of oxygen.

Last October, GlaxoSmithKline lost the only Paxil trial.  The jury awarded the family $2.5 million because its child was born with heart defects.  The jury in that case found that GlaxoSmithKline failed to warn doctors concerning the serious side effects of Paxil, including serious birth defects.  It also found Paxil to be a "factual cause" of the birth defect in the child. 

Since that trial, GlaxoSmithKline has chosen to settle its other Paxil lawsuits.  Other drugs in the same family of drugs as Paxil include Lexapro, Celexa, and Prozac.

Georgia is the latest state to overturn a cap on medical malpractice claims.  The Georgia Supreme Court cited the cap's unconstitutionality as the basis for overturning the state legislature's cap on damages in medical malpractice cases in Georgia. 

According to the National Conference of State Legislatures, 30 states have medical malpractice damage caps.  The trend started in California in 1975 and was popular for a short time. During the following decade, courts began to review these caps and find them, in some instances, unconstitutional. 

Besides Georgia, Washington, Oregon, Illinois, and Wisconsin have struck down the damages' legislation as unconstitutional.  The foundational argument in each of the cases has been that the damage caps violate the separation of the two branches of government-legislative and judicial.

 

The NH medical malpractice fund, known as the Joint Underwriting Association fund was created in 1975.  It was founded to provide affordable medical malpractice insurance to high-risk health care providers.  Presently, the fund has a $110 million surplus and Governor Lynch wants to tap the fund to balance the budget.  Doctors claim the surplus is theirs and are demanding the money.  The dispute has ended up in court. 

Thus far, a Superior Court judge and the NH Supreme Court have ruled in favor of the policyholders.  The dispute continues and may be decided by the courts if they decide to accept the case.  A decision is expected in approximately one week.

According to WebMD, some 99,000 Americans die each year from preventable hospital infections.  While this is an alarming number, the more disturbing fact is that the nation's hospitals are only beginning to deal with the problem.  For years, government officials assumed hospitals knew their infection rates but declined to make them public.  In fact, most hospitals weren't tracking the data and had no idea about their actual infection rates. 

Lisa McGiffert, who as campaign manager for Consumers Union's Safe Patient Project advocates for states to push hospitals to track the data. 

"When we started, we thought hospitals knew their infection rates and were keeping them secret.  But they were not tracking them at all. If you are not aware of something you can't stop it. Where hospitals have been forced to face this and count it, it has created a sea change," McGiffert told WebMD. 

Kathleen Sebelius, Health and Human Services Secretary has vowed to change the culture in which these statistics are not tracked.  "All 50 states, Washington, D.C., and Puerto Rico recently published state action plans to reduce hospital-acquired infections," Sebelius says in a news release.

Once the infection data is collected and reported to the Centers for Disease Control it is hoped that prevention measures can be implemented so that the number of patient deaths from hospital infections will be drastically reduced.

A Maryland woman who sued two doctors for a botched surgery intended to repair blocked arteries.  The surgery malpractice left the woman a paraplegic.  Dr. Roger E. Schneider and Dr. Mark D. Gonze were sued by Victoria Little in 2008 after the 2007 surgery.  The lawsuit alleged that the doctors failed to comply with accepted medical standards of care and used an inappropriate grafting technique in the surgery to repair her arteries. 

Last week, a jury found for Ms. Little and awarded her $1.3 million in noneconomic damages, $2 million for future medical expenses, and $200,000 for past medical expenses.  The doctors' attorneys said they plan to appeal the verdict.

Drug maker GlaxoSmithKline has settled some 700 cases involving its diabetes drug Avandia, according to a Bloomberg news report.  The Avandia lawsuits alleged that the drug caused them to suffer heart attacks and strokes.  The settlement is reported to be around $60 million for the 700 claimants.  That does not resolve all of the Avandia lawsuits, however.  There are some 9,000 more claims that have not been filed under an agreement between the claimants and GlaxoSmithKline lawyers. 

The first Avandia trial is due to begin this July in state court in Philadelphia.

A cerebral palsy birth injury lawsuit was settled for $9.5 million against Sherman Hospital in Elgin, Illinois, Dr. Jae Eun Han and Mary Traub, a midwife for negligence in the botched birth of Patrick O'Came who suffers from cerebral palsy as a result of brain injuries suffering during the birthing process.  The lawsuit also alleged that the midwife was allowed to perform the delivery alone even though a doctor's availability is required.  When the birth experienced complications and the fetal heart rate dropped, the midwife performed a risky procedure rather than summoning a physician for help.  The baby's umbilical cord was compressed, depriving the child of oxygen for the last 15 minutes of the delivery.  As a result, Patrick O'Came was born with cerebral palsy and suffered debilitating and permanent developmental disorders. 

Cerebral palsy is often a result of medical malpractice during the delivery process resulting in neurological damage, seizures, loss of motor function, and cognitive limitations.

A new study points to a disturbing trend in emergency rooms.  The study shows that emergency room doctors are underestimating the possibility of serious bacterial infections in children presenting themselves with fevers.

The authors of the study concluded, ""Emergency department physicians tend to underestimate the likelihood of serious bacterial infection in young children with fever, leading to under-treatment with antibiotics. A clinical diagnostic model could improve decision making by increasing sensitivity for detecting serious bacterial infection, thereby improving early treatment."

For example, the study found that urinary tract infections, pneumonia, and bacteremia occur in approximately 7% of children who present with a fever.  However, only 70-80% of those children are prescribed with the proper antibiotics with 20% who do not have any signs of bacterial infection are over treated with antibiotics.

The study also noted, "In most cases, the cause of a febrile illness is a self limiting, presumed viral, infection, but 5-10% of febrile children have serious bacterial infections such as pneumonia, urinary tract infection, meningitis,, bacteremia,or bone or joint infection (which usually present with fever).).  These conditions can be difficult to distinguish from viral infections and benefit from early antibiotic therapy. The consequences of a delayed or missed diagnosis can be serious and, occasionally, fatal."

The study was published by BMJ (British Medical Journal).

It seems like this should be common sense.  There is a direct correlation between the number of medical malpractice cases and the quality and safety of medical care.  Those in favor of reducing doctors' liability rather than increasing patient safety don't usually like to talk about this.  However the RAND Corporation has released a study of California hospitals from 2001 to 2005.  The study concluded, "Reducing the number of preventable patient injuries was associated with a corresponding drop in malpractice claims against physicians."

"These findings suggest that putting a greater focus on improving safety performance in health care settings could benefit medical providers as well as patients," said Michael Greenberg the study's lead author and a behavioral scientist with RAND, a nonprofit research organization.

The mother of an 8 year old girl will receive $1.8 million from Community Health Care Inc. clinic in Greenfield, Mass., after one of the clinic's patients caused a fatal car accident.  Stephen Fairchild, 24, of Putney Vermont was a clinic patient being treated for heroin addiction when his vehicle veered into oncoming traffic colliding with a truck driven by Erin Lackey.  Erin's 8 year old daughter Kayla and Fairchild were both killed in the crash.  Autopsy reports showed that Fairchild's methadone level was "peaking" at the time of the 2005 auto crash. 

Kayla Lackey's family sued the Community Health Care clinic citing the clinic for failure to adequately monitor Fairchild after giving him methadone bottles to take home with him, a violation of clinic policy.  The suit noted other warning signs in Fairchild's behavior such as a failure to keep counseling appointments and burns on his clothing and skin, a dangerous sign of drug abuse.  Fairchild had a long history of drug abuse and traffic violations.  Autopsy results showed that Fairchild has used cocaine and marijuana recently prior to the crash. 

The methadone clinic lawsuit focused on the role the clinic and Fairchild's personal physician, Dr. Walter Slowinski, had in treating Stephen Fairchild.   

Mentor ObTape vaginal sling lawsuits will proceed in California after a California Superior Court judge ruled in favor of the four women suing Bayer, the manufacturer of the vaginal slings.  According to the lawsuits, the women allege that the vaginal slings slow tissue integration causing painful side effects including vaginal extrusions, urinary tract erosions, and infections.  The vaginal slings were designed to treat female urinary incontinence and have been used by thousands of women between 2003 and 2006. 

A 2009 study found that 1 in 5 women using the sling would suffer from complications.  The lawsuits claim that Mentor knew about the high rate of complications in 2003 but declined to advise prospective patients of the potential complications.  Many women who experienced these complications were forced to endure further surgeries to remove the tape. 

Sales of the tape ended in 2006.  The product was never recalled from the marketplace.  Presently, ObTape lawsuits have been consolidated into a multidistrict litigation in U.S. District Court for the Middle District of Georgia.  Trials are scheduled to begin in June 2010.

The 7th Annual "Patient Safety in American Hospital Study" has been published and is available online at http://www.healthgrades.com  The study identifies patient safety incidence rates among Medicare patients in almost all of the country's 5,000 non-federal hospitals.  The findings should prove helpful for healthcare institutions that are concerned about tranparency, accountability, and patient safety.

The study analyzed data from 2006-2008 and found that there were nearly 100,000 patient deaths attributable to safety lapses and medical errors.  The costs associated with these medical errors were an astounding $8.9 billion.  The study found that nearly 10% of Medicare patients died from safety errors.  The highest incidence rates concerning safety errors included the following:  failure to rescue (92.71), decubitus ulcer (36.05), post-operative respiratory failure (17.52), and post-operative sepsis (16.53).

Of the 8 New Hampshire hospitals that were eligible to receive a Patient Safety Excellence Award, none were recognized for the award. New Hampshire hospitals received an overall grade of average in "Patient Safety Observed-to-Expected Incidence Rate" analysis.  The areas in which New Hampshire was rated "worst" included death in low mortatlity DRG's (diagnosis related groups), latrogenic pneumothorax, and selected infections due to medical care.  The only area in which NH ranked as one of the best concerned rankings for incidents related to decubitus ulcer.

The study concluded, "Avoiding mistakes by chance is no longer acceptable. When patients enter the health care system, they entrust their health and their lives to their caregivers. The health care system must continue to put systematic safe practices in place to ensure that the system created to save them doesn’t unintentionally harm them.

If all U.S. hospitals had performed at the same level as the Patient Safety Excellence Award
hospitals, the U.S. health care system could have saved nearly $2.1 billion and potentially prevented 22,590 deaths in just three years among Medicare cases alone."

The state's highest court overturned the statutory $500,000 cap on non-economic damages which are defined as intangible, including pain and suffering, loss of consortium, disability, and disfigurement.  In its decision to overturn the statute, the Supreme Court ruled that the law violated the separation of powers clause found in the state constitution.  In its ruling, the Court noted that the law "unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law.”

Shortly after the law was enacted in 2005, the case Lebron v. Gotlieb Memorial Hospital challenged the statute's constitutionality.  The case involved a baby born via Cesarean section. The child was born with numerous permanent injuries including brain damage and cerebral palsy.  The case far exceeded the $500,000 cap on non-economic damages.

Last week, the US Senate Finance Committee investigated the diabetes drug Avandia and its safety issues as it is associated with an increased risk of heart attacks.  This week, the powerful committee has focused on long term care hospitals and their allegedly substandard medical care.  The issue was the subject of an article in the NY Times today.  The Times headline read, "Senate Panel to Investigate Deaths at Long-Term Care Facilities".

The Senate committee has focused its investigation on one particular long-term care company which runs 89 such facilities across the country.  On Monday of this week, two members of the committee sent Select Medical Corporation a letter demanding answers concerning staffing levels and quality of medical care at its facilities.  An earlier NY Times article focused attention on these hospitals that treat 200,000 seriously ill patients each year.  According to the Times, the facilities rarely have full-time physicians on staff.  The Times cited one example of a dying patient whose heart monitor beeped for 77 minutes before a nurse responded.

According to today's Times' article, "The letter also requests that Select disclose information about its discharge policies. Former employees have also said that the company presses to keep patients for 25 days and then discharge them almost immediately, because patients are most profitable if they stay exactly 25 days under government reimbursement rules. At some Select hospitals, the 25th day is called the “magic day,” ex-employees say."

This is a particularly stark example of healthcare gone wrong in this country.  It's an example, if the allegations are true, of healthcare companies placing profits over patients. 

Dr. Peter Pronovost, a Johns Hopkins anesthesiologist, is waging a war on what he calls "the secrecy, shame and lack of communication within health care".  According to Pronovost, the war must be waged to protect patients from unsafe hospital practices that lead to dangerous medical errors.  Pronovost has already designed a checklist to reduce catheter-related infections in ICU's.  

Now, he's published a book entitled, "Safe Patients, Smart Hospitals: How One Doctor's Checklist Can Help Us Change Health Care from the Inside Out."  Pronovost's two-pronged approach involves creating safe practice checklists as well creating hospital cultures in which nurses and other healthcare workers are unafraid to challenge doctors who are making errors.

Dr. Pronovost decided to act after witnessing a toddler, 18 month old Josie King, who had been brought to Johns Hopkins Hospital for burn treatment.  Josie died from substandard care resulting from a medical error. 

In the book, Pronovost writes, doctors "think they are infallible, communication between nurses and doctors is poor and accountability is virtually non-existent. . . Medicine operates like a private club of self-styled deities where the entrance requirement is an M.D."

In her February 16, 2010 book review of Dr. Pronovost's work, Wall St. Journal writer Laura Landro mentions two scenes  which Dr. Pronovost cites as examples of this egregious behavior.

"In the course of advancing his argument, Dr. Pronovost offers glimpses into the harrowing world of intensive care, such as a patient accidentally left to overdose on narcotics—saved, ironically, because he was a heroin addict and could tolerate the excess of drugs. In one heart-stopping scene, Dr. Pronovost faces off with a surgeon who refuses to admit that the patient on the operating table is having a deadly allergic reaction to the latex gloves that the surgeon is wearing."

I salute this young doctor's courage and willingness to stand up for patient safety.  Medical errors and patient safety are intimately related to the institutional culture as well as a profession's willingness to change and adopt safe practices of medicine.

A new report published yesterday has quantified the effect of hospital infections and the numbers are not pretty.  In 2006, 48,000 lives were lost due to infections acquired in hospitals.  The financial cost of such infections were estimated to be $8.1 billion.  These numbers are likely to rise and have a profound impact on the cost of healthcare in the United States.

"In many cases, these conditions could have been avoided with better infection control in hospitals," said Ramanan Laxminarayan of Resources for the Future, a think tank that sponsored the study.

The study showed that infections acquired during hospital stays are a growing concern and a huge issue in controlling healthcare costs.  The researchers found that a lapse in infection control can lead to prolonged hospital stays, serious complications, and death. 

A few weeks ago, the medical malpractice attorneys at our firm dedicated an entire week to blogging about the 5 most common myths associated with medical malpractice cases.  In each instance, our bloggers cited independent evidence based on research and statistics that tort reform or medical malpractice reform will not make a substantive contribution to the improvement of our healthcare system.  In fact, one insurance study noted that such emphasis on curbing medical malpractice cases served only to restrict consumers' access to justice in a court of law. 

Now, there are renewed rumblings in Washington that President Obama may be willing to consider tort reform measures in order to obtain Republican support of other aspects of his legislation.  The rumors gathered steam after Republican Senator Judd Greeg (R-NH) appeared on Hardball with Chris Matthews and discussed the possibility. 

As an attorney who has represented victims of medical malpractice for years now, I know that such reform measures only hurt those who need consumer protection the most.  Rather than satisfying the pork barrel interests of large insurance companies, we should be focusing on measures that actually improve the quality of healthcare for all Americans.  This includes the implementation of new safety measures and accountability that empowers consumers with knowledge so that they are able to make informed choices regarding their healthcare.

Patient advocacy groups have formed a coalition to launch a new website designed to highlight the relationship between medical errors and physician fatigue.  www.WakeUpdoctor.org is the site that will gather information and the stories of patients who've been harmed by medical error associated with physician fatigue and overwork.  The effort will concentrate on reducing the number of hours worked by interns and residents in order to improve patient safety and reduce medical errors. 

"Few, if any, people would fly on a plane whose pilot had been awake and working for 25 to 30 hours. In fact, that long a shift is prohibited," said Dr. Sidney Wolfe, director of Public Citizen's Health Research Group. "But patients routinely get medical care from resident physicians who have been working that long. They become fatigued, making them more susceptible to making errors that greatly harm patients. It is likely that there are more deaths in U.S. hospitals each year caused by sleep-deprived doctors than the total annual deaths from plane crashes and train accidents."

Since the link between medical errors and physician sleep deprivation has grown over the years, the new effort is a common sense approach to reducing errors and improving patient safety.  This is a step in the right direction.

 

In a 4-2 vote, the Illinois Supreme Court has overturned a five year state law capping damages in medical malpractice lawsuits.  The Court found that the law was unconstitutional because it limited the compensation injured victims could receive for pain, suffering, and other non-economic damages.  The majority opinion concluded that the law violated the state Constitution's separation of powers clause by imposing decisions that are properly reserved for juries and judges.

The decision was a major victory for consumers and injured victims of medical malpractice.  Approximately 30 states have laws that limit non-economic damages.  11 states have overturned such laws.

The Court's ruling came in the case of Abigaile Lebron, who suffered severe mental impairment after a botched Caesarean section four years ago.

Last Sunday, the NY Times ran a front page story about the dangers of radiation overexposure.  The article highlighted the tragedy of Scott Jerome-Parks who died as a result of a radiation error.  Ironically, Jerome-Parks contracted tongue cancer from volunteering in the 9/11 cleanup.  On the morning of September 11, 2001, Scott missed his train that would have taken him to work at the World Trade Center.  His sense of responsibility and commitment to the 9/11 victims compelled him to volunteer in clearing away the rubble.  Exposure to the toxic dust from the collapsed towers led at least one doctor to believe that may have caused the tongue cancer.

In 2005, Jerome-Parks was receiving radiation treatments for the tongue cancer.  According to the NY Times article, malfunctioning computer software for a new linear accelerator caused three radiation treatments to be 7 times more powerful and radiate a much broader area than the tongue cancer required.  The radiation error caused tremendous pain, loss of hearing, an inability to swallow, and finally an inability to breathe.  The excess radiation caused fatal damage to the nearby organs and led to his painful death in 2007.

As Scott Jerome-Parks was dying, he had a single request.  He wanted his tragedy and the medical errors associated with it to become public so that others would not suffer a similar fate.

“If one life is saved from this, then Scott’s death won’t be in vain,” said his mother. “We hope people will become advocates of their own treatment. Ask the radiology staffs to check the settings, not once but twice.”  As painful as it was for his parents to tell Scott's story to the NY Times, they could  do it because it was his wish.  He didn't want others to suffer from a lack of knowledge.
“With the Times' report, we are in some ways dealing with Scott’s death all over again,” said Donna Parks. “But this time we feel better because some good is coming out of it. People will be more aware that radiation accidents can happen.”

We're continuing to discuss the 5 Myths of Medical Malpractice today.  This one happens to be my favorite because it's so outrageous and a number of people believe it.  The second myth is "Medical malpractice claims drive up healthcare costs."  According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence in 2007 was $7.1 billion—just 0.3% of health care costs.  Now, remember this figure is from the insurance industry.  The second argument is an indirect one.  Those who promote this myth argue that medical malpractice claims drive up insurance by forcing doctors to practice defensive medicine.  However, the facts don't support this claim.  According to the AAJ study, "Most claims of “defensive medicine” are derived from a 1996 study that has repeatedly been debunked by government agencies and academic researchers. The study, conducted by Daniel Kessler and Mark McClellan, examined data on the costs of treating cardiac patients covered by Medicare in 1984, 1987, and 1990. The authors took this small subset of data and extrapolated the findings to the entire health care system to conclude that tort reform could reduce medical costs by five to nine percent because doctors no longer felt the need to run tests because of liability concerns."  If defensive medicine exists at all, its sole purpose is to generate income not avoid a liability claim.

In an editorial that accompanied the release of a new study on prescription pain pill overdoses, Thomas McLellean, the deputy director of White House Office of National Drug Control Policy, noted that doctors should re-examine how they manage pain in their patients.

"It is easy to blame the growing epidemic of opioid overdose and death on manipulative patients who misrepresent pain symptoms to obtain drugs to abuse or sell," McLellan wrote, saying the study identifies a "potential role for physicians" in the epidemic.

"Smarter, more responsible practices are the only hope to avoid tragic, avoidable deaths."

The editorial served as a buttress to the study published in the current Annals of Internal Medicine, which studied 10,000 Group Health patients with prescriptions for pain medicine for such ailments as arthritis and back pain.  The research suggests that patients with higher opioid doses were 9 times more likely to overdose than those patients with loser doses.

Dr. Michael Von Korff, senior investigator for the Group Health study noted that for every fatal overdose there were seven non fatal poisonings that were considered medically serious.  Doctors are prescribing more pain pills at higher doses than ever before.  In the United States, deaths from prescription pain pill overdose tripled from 1999 to 2006.  In Washington state, pill overdose deaths now eclipse car accidents as the primary cause of accidental death.

In his editorial, the deputy drug czar concluded, "It is easy to blame the growing epidemic of opioid overdose and death on manipulative patients who misrepresent pain symptoms to obtain drugs to abuse or sell," McLellan wrote, saying the study identifies a "potential role for physicians" in the epidemic.

"Smarter, more responsible practices are the only hope to avoid tragic, avoidable deaths."

It's taken some time, but New Hampshire will require hospitals to report medical errors and avoidable mistakes to the public.  The logistics of such a reporting system have yet to be determined.  However, the good news remains that New Hampshire will finally join other states in publicizing medical errors.  While the Institute of Medicine has continued to state that hospital errors are a leading cause of death in the United States, New Hampshire has dragged its feet in implementing a policy of transparency and openness to the issue of medical malpractice and errors that lead to severe and permanent injuries, including death. 

According to a WMUR report, the state could begin publicizing such medical errors within six months.  Medical errors and medical malpractice cost the lives of 200,000 Americans.  Comparing this to the death toll in Vietnam (58,000), the number is staggering.

There was a provocative article posted on www.injuryboard.com about the potential costs of medical practice cases.  A hospital in Florida is charging a medical malpractice victim $1,000,000 to retrieve medical records concerning the doctor who botched his back surgery.  While on the surface that may seem like a Florida problem, it's really a systemic problem concerning medical records and transparency.  Any adverse event or surgical complication should be a matter of public record, yet it is not in most states, including New Hampshire.  For those who've suffered medical malpractice or surgical errors, retrieving medical records of what actually transpired during treatment or surgery may be difficult or impossible to obtain due to existing legislation.

When a victim of alleged medical malpractice comes into our office, there's an extremely high threshold that that person must overcome to convince us to take their case.  This is not because we don't believe the victim.  However, the law, public opinion, and prospective jury pools are skeptical when it comes to medical malpractice cases.  Our reputation as a respected medical malpractice law firm hinges on the fact that we only accept what we consider meritorious cases.  

We've been representing victims of medical malpractice for three decades now.  We are only interested in the pursuit of justice and increasing the quality of patient care.

It didn't receive much notice in the press but the US Senate gave consumers an important Christmas present when they voted no on a measure that would have capped fees in medical malpractice cases.  HB 3590 was soundly defeated 66-32 because Senators determined the so-called "tort reform" arguments weren't accurate.  For years, these groups have argued that healthcare reform begins by stopping medical malpractice lawsuits.  They reasoned that the best way to stop the lawsuits was to put caps on lawyers' fees.  Yet, in states where there are caps on such cases, healthcare costs have continued to skyrocket and insurance premiums have continued to rise at an unprecedented pace.

In voting down this bad bill, US Senators stood up for victims of medical malpractice.  Even the poorest victims of medical malpractice will be able to receive medical treatment and pursue justice in the courtroom.  Medical malpractice attorneys will continue to represent victims and fight for their rights in court. 

Real healthcare reform begins with accountability, transparency, and a concerted effort to improve patient safety.  The US Senate recognized this and did the right thing.  Let's hope this is a trend that will continue to bring improvement to our healthcare system.

The Food and Drug Administration has announced that it will begin to study the effects of prescription drugs on pregnant women, a population that is usually not considered in clinical drug trials.

The Medication Exposure in Pregnancy Risk Evaluation Program (MEPREP) will be a collaborative effort between the HMO Research Network's Center for Education and Research in Therapeutics.  The groups will gather and study data from 11 health plan-affiliated research sites.  Together, the sites may access data from 1,000,000 births from 2001 to 2007.


"Many of the mothers associated with these births likely used medication during their pregnancies and now, with the program in place, the FDA and participating researchers have a systematic and timely way of retrieving information from this network," the agency said in a news release.  

Since a majority of pregnant women takes prescription drugs, the study hopes to provide the necessary medical knowledge to increase the safety and health of both the mother and the child.

A new study has shown that up to 20% of kidney dialysis patients who undergo procedures to open a clogged artery are given the wrong drugs, significantly increasing the chances of increased bleeding.  The study notes that many doctors disregard or ignore drug warning labels which puts the patient at significant risk for injury. 

"The results of this study illustrate the problem of medication errors in the United States, as well as the need to make patient safety a priority on the health care agenda," Dr. Thomas Tsai of the Denver Veterans Affairs Medical Center and colleagues wrote in the Journal of the American Medical Association.

Errors such as these cause more than 100,000 preventable deaths each year as well as medical malpractice lawsuits. 

Certain blood thinners are not recommended for kidney dialysis patients.  Drugs such as Lovenox, also known as enoxaparin, made by Sanofi-Aventis SA's and Merck Schering-Plough's Integrilin, also known as eptifibatide, are not recommended for kidney patients because they are cleared through the kidneys.  In spite of this, more than 20% of dialysis patients received one or the other blood thinner in the recently published study. 

"This study therefore demonstrates that these medications are used in clinical practice despite (U.S. Food and Drug Administration) FDA-directed labeling, and their use is associated with adverse patient outcomes," the team wrote.

The Leapfrog Group, a patient safety and quality advocacy group, has released its determination of the best hospitals in the country.  The list includes urban hospitals, rural hospitals and pediatric hospitals.  Leapfrog listed 45 healthcare institutions committed to patient safety and quality of care.  Among those hospitals listed in the rural category, two Maine hospitals were cited-Stephens Memorial Hospital in Norway and Waldo County General Hospital in Belfast Maine.  Children's Hospital in Boston was listed as one of the best in the pediatric category.

The Leapfrog Group survey of hospitals is the only national, public comparison of hospitals on key issues such as mortality rates, rates of infection, safety practices and measures of efficiency.  The Leapfrog survey has received independent recognition for its work and advocacy of patient safety and quality of care.  In a 2008 study performed by Harvard Medical School's Dr. Ashish Jha and published in the Journal of the Joint Commission, Leapfrog hospitals had lower mortality rates and better quality of care than those hospitals not participating in the Leapfrog survey.

In order for an urban hospital to be listed as one of the best by Leapfrog, it must meet the following criteria:

  1)Fully meet Leapfrog standards for implementing computer physician order entry (CPOE) systems (that have been shown to reduce medication errors by up to 85%), and for passing Leapfrog's test of their system;

  2)Fully meet stringent performance standards for complex, high-risk procedures (such as heart bypass surgery) done in that particular hospital;  

  3)Fully meet standards for staffing the ICU, shown to reduce mortality by 40% or more;   

  4)Score in the top decile in the country for efficiency - scored by the Leapfrog Hospital Recognition Program incorporating quality outcomes, length of stay, readmission rates, and incidence of hospital acquired conditions and infections. The efficiency standard applies to heart bypass surgery, heart angioplasty, heart attack and pneumonia patients.

As the US House of Representatives prepared to vote on their health reform bill early last month, Rep. Bruce Braley, an Iowa Democrat, took the floor to advocate for patient safety.  As he began his floor speech, Rep. Braley was shouted down by some members of the House.  He was derided as a "trial lawyer" as he spoke about the dire need to focus on patient safety.

Braley, seen by many of his House colleagues as the leader in patient safety advocacy, remained undeterred by the catcalls.  "Who will speak for the patients?" Braley said in his House speech. Referring to an Institute of Medicine report, Braley said "They told us the most significant way to reduce the cost of medical malpractice is to emphasize patient safety by reducing the number of preventable medical errors."

200,000 Americans die each year from preventable medical errors.  Yet, the issue of patient safety has received scant attention in the debate over healthcare reform.  Perhaps, Rep. Braley will lead this important fight.

"When my colleagues chose to attack me by screaming 'trial lawyer, trial lawyer' it wasn't affecting me in the least," Braley told advocates last week at the Consumers Union conference. "I was thinking of people that need someone to stand up for them when it comes to important issues of patient safety."

Taunting and name-calling doesn't serve the interests of the American people who need real reform.  As the US Senate debates various healthcare reform measures this month, let's hope that the focus of the debate centers on the issues not on personal attacks.

In spite of the groundbreaking Institute of Medicine report entitled "To Err is Human", patient safety and the rate of medical errors leading to medical malpractice hasn't improved significantly in the last ten years, that's according to two authors of the original study. One of the study's authors, Dr. Donald Berwick, president of the Institute of Healthcare Improvement, gives the state of medical safety a C-. 

While there may be more awareness of medical errors, there has been little significant progress in preventing or correcting these errors in the medical field.  A lack of mandatory medical error reporting across the United States is a factor in the lack of progress in patient safety.  If there is no baseline from which to gauge the problem of medical errors, it's difficult to track progress.  Another factor in the lack of safety progress concerns the medical profession's hesitancy to embrace technological innovations such as electronic medical records which studies have shown, can reduce medical errors significantly.

New Hampshire medical malpractice cases that we've handled over the years often involve devastating injuries and death.  These medical injuries and deaths were the result of medical malpractice on the part of a healthcare professional.  Those who've suffered because of medical negligence are victims and deserve to pursue their legal rights. 

Two weeks ago, a group of medical malpractice victims traveled to Washington to remind Congress of their suffering as well as their legal right to court access.  These courageous people went to Washington DC in order that the protection of patient rights be part of any meaningful healthcare reform. In a press release issued on October 21, 2009, Center for Justice and Democracy, Executive Director Joanne Doroshow wrote:

"We must not solve the nation's health care problems on the backs of injured patients and their loved ones. We hope Members of Congress will join Chairman Conyers and Representative Braley and reflect on the tragic stories of these American families who traveled great distances in rejecting any limits on their legal rights." 

Congressman Bruce Braley (D-IA) has vowed to introduce legislation that would improve patient safety by making the reporting of medical errors mandatory.  Rep. Braley made the announcement during a news conference in which he was flanked by victims of medical malpractice. 

The 1999 Institute of Medicine's study To Err is Human, noted that medical errors cost the American taxpayer $17-29 billion annually and take lives of 98,000 Americans each year.

Rep. Braley is focusing his efforts on patient safety and has stated his opposition to caps on medical malpractice damages because they interfere with patients' rights. During his news conference, Braley stated that it's  "important to give another side of the story and talk about the real human cost of medical errors."

Braley has said that he'd like to introduce medical error reporting legislation separate from the impending healthcare reform bill so that medical error reporting receives proper focus and attention.

Ortho Evra has been touted as a safe, easy-to-use birth control patch that is more convenient than oral contraceptives.  Since its introduction in 2002, its maker Johnson & Johnson aggressively marketed the birth control patch.  What wasn't revealed at that time was Ortho Evra exposes users to 60% more estrogen than the average oral contraceptive.  This high dose of estrogen can lead to blood clots and strokes.  In 2005, the FDA issued a warning about the potential dangers of the birth control patch.

Now, a 17 year old Boston girl has died and her relatives are blaming the birth control patch for her untimely death.  The Boston Globe reported that the teenager died from a pulmonary emboli on September 28.  Adrianna Niedner was just starting her freshman year at Trinity College when she suddenly collapsed in her dorm room.  Her mother has sued Johnson & Johnson, the maker of Ortho Evra and wants the product removed from the market. 

According to the health advocacy group Public Citizen, 2 million women still use the birth control patch even though Ortho Evra side effects have been well publicized since late 2005.

Medical errors that lead to death are far less likely in our country's best hospitals, according to a report released today by the medical ratings company Health Grades.  According to the study, patients have a 51.53% lower risk of dying in our nation's top rated hospital in comparison to the general US hospital. 

This is an astounding figure.  The discrepancy in the quality of care received in our nation's hospitals is appalling.  As Congress debates healthcare reform legislation, it's unfortunate that such issues are not at the forefront of the healthcare debate. 

According to Rick May, one of the authors of the study, this information should be part of the ongoing debate. 

"The fact is, patients are twice as likely to die at low-rated hospitals than at highly rated hospitals for the same diagnoses and procedures. With Washington focused on rewarding high-quality hospitals and empowering patients to make more informed health care choices, this information comes at a turning point in the health care debate."

Other findings in the 12th annual "HealthGrades Hospital Quality in America Study":

 

• If all hospitals performed at the level of a five-star rated hospital across 17 procedures and diagnoses studied for mortality rates, 224,537 lives of Medicare patients could potentially have been saved from 2006 through 2008.
• About 57 percent (127,488) of the potentially preventable hospital deaths were associated with four diagnoses: sepsis (44,622); pneumonia (29,251); heart failure (26,374) and respiratory failure (27,241).
• Across all procedures studied, there was a 61.22 percent lower chance of experiencing one or more in-hospital complications in a five-star rated hospital compared to the U.S. hospital average.
• Hospitals that have received the stroke certification from the Joint Commission on Accreditation of Healthcare Organizations have an 8 percent lower risk-adjusted mortality rate than hospitals that have not received this certification.

SSRI (selective serotonin reuptake inhibitor) antidepressants, including the popular Prozac, have been linked to premature births in pregnant women who've taken the drugs, according to a new study.  

The study appeared in a journal called Archives of Pediatrics & Adolescent Medicine, published by the American Medical Association.  The research studied 329 pregnant women who were taking SSRIs during pregnancy.  The study found that women taking the antidepressants were twice as likely to give birth prematurely.  The findings also showed that these  women were at a higher risk of giving birth to babies who needed some form of treatment in intensive care shortly after birth.

When prescribing SSRIs to treat depression in pregnant women, doctors are advised that the benefits to such treatment must outweigh the potential risks to the unborn child.  While it is not clear if there are any long-term effects of SSRI drugs on the newborn, the study shows that the drug enters the fetus' bloodstream and that some babies experience withdrawal symptoms soon after childbirth.

The study does not discuss the risks of untreated depression in pregnant women, which can also affect the baby's growth and development.

A new Danish study has linked a specific type of birth defect in cases where pregnant mothers were taking antidepressants.  The Danish study, reported by WebMD, found that women who take more than one selective serotonin reuptake inhibitor (SSRI) or switch SSRIs during the first trimester of pregnancy are more than 4 times as likely to give birth to babies with septal heart defects.  Popular SSRIs include Prozac, Paxil, Zoloft, Celexa, and Lexapro. 

In 2005, the FDA sent a letter to physicians regarding a potential link between Paxil and birth defects but did not mention any of the other antidepressant drugs.

Medical errors that can lead to medical malpractice lawsuits can be caused in part by physician fatigue and stress, according to a new report in the Journal of the American Medical Association.  While this may seem like an obvious conclusion to most of us, healthcare officials have been slow to act in relieving the human factors that lead to medical errors.

“While fatigue is important, said study lead, Dr. Colin West of the Mayo Clinic in Rochester, Minnesota, “there is this whole domain of distress beyond fatigue that also demands attention,” quoted Reuters. The findings are hoped to better enable ways to reduce stress on residents, which is hoped to reduce errors, said Reuters. “I think this is going to have an impact on health care reform,” West said. “We need (to put) resources into training and medicine to control work hours and maintain physician well-being,” he added, said Reuters.

The investigative journalism website, Dead by Mistake, estimates that 200,000 Americans die from preventable medical errors.  It seems reasonable that a percentage of these deaths is attributable to physician fatigue or stress.  As Dr. West stated, this needs to be part of the healthcare reform discussion.

Medical Malpractice.  The two words have taken on such a pejorative connotation in our society that politicians regularly take aim at them.  The words remain the favorite culprit of insurance companies when they have to explain the rise in premiums to doctors, elected officials, and the average consumer.  Yet, reputable studies in states like Texas have shown that it's really a red herring to which many insurance companies will turn when company executives have to justify an increase in insurance premiums.

The real losers in this faux debate are those who've suffered and lost loved ones as a result of medical errors and medical malpractice.  These are the ones who rely on the civil justice system.  If we're going to debate healthcare, let's do it with facts.  Let's avoid the hyperbole and politically charged arguments that serve the few at the expense of the multitudes who deserve better.

Cerebral palsy, like Erb's palsy, may occur as a result of medical malpractice during the birthing process.  Medical errors and mistakes during delivery of a child may lead to this condition. 

Cerebral palsy is a term used to describe a variety of medical conditions affecting a newborn's or child's muscle coordination and bodily movements.  The condition is caused by damage to the area of the brain associated with muscle function and coordination.  It is a permanent condition that usually occurs during birth, shortly after birth, or infancy. 

When cerebral palsy occurs as a result of medical malpractice during the birthing process, it is usually a result of one or more of the following errors:

• a child left in the birth canal for an extended period of time leading to a lack of oxygen to the brain
• misdiagnosis of infant seizures and failure to treat them in a timely fashion
• failure to detect a prolapsed cord during which the baby is deprived of oxygen because the umbilical cord has wrapped around the baby's neck
• failure to recognize and treat jaundice and meningitis
• failure to recognize fetal distress and respond promptly to relieve that distress.

These are just a few of the potential causes of cerebral palsy during the delivery that can lead to permanent brain damage in a newborn.

Injury to the largest part of the brain (cerebrum) can lead to the loss of nerve functions in different areas. Many children with this condition have increased muscle tone (spasticity). Spasticity may affect:

Presently, there is no cure for cerebral palsy. The goal of treatment is to help the person be as independent as possible.

Treatment requires a team approach, including:

• A primary care doctor
• A social worker
• Nurses
• Occupational, physical, and speech therapists
• Other specialists

It's a preventable birth injury that is often caused by the medical malpractice of a doctor who either pushes or pulls a baby out of the birth canal.  Such excessive force can cause permanent but preventable injury.

Erb's Palsy (aka brachial plexus palsy) is a medical condition that is normally precipitated by the birthing process.  The severity of the condition ranges from return to normal range of arm motion to physical therapy or surgery.

Erb's Palsy normally occurs during the birthing process as a result of shoulder dystocia where the baby's shoulder becomes stuck against the mother's pelvis.  The injury usually occurs when the healthcare professional exerts excessive force thus straining the brachial plexus nerves.  The brachial plexus nerves run from the spinal cord to the arm and control arm movement and flexibility. 

Proper pre-natal care can make birth defects such as Erb's Palsy avoidable.  Risk factors for Erb's Palsy include:

• Obese mother
• Above-normal weight gain during pregnancy
• Advanced age of mother
• Short or small mother
• Flat, contracted or exceptionally small pelvis
• Diabetes in the mother
• Large baby
• Overdue baby
• Prolonged labor
• Breech position

If any of these risk factors are present during pregnancy, a planned C-section may be determined to be the proper course of action in order to prevent Erb's Palsy. 

Diane Stewart, 70, finally decided to have the knee replacement surgery her family and friends had urged her to have for years.  She had suffered from severe arthritis since a car accident 40 years ago had crushed her knees.  Now, unable to walk, she gave in to her family's demands to have the surgery.  Her family had made sure that the surgery would be performed at a hospital that enjoyed a very good reputation- Stanford University Medical Center in Palo Alto.  The knee replacement surgery was performed by Stanford University Professor Dr. Stuart Goodman.  As she prepared for surgery on March 30, 2007, she seemed in capable hands. 

After the surgery, she began to complain of excruciating pain in her abdomen.  Her family asked to speak with her doctor, but it was the weekend and her doctor was unavailable. By the time a doctor examined her, it was too late.  She had gone into shock and was rushed into intensive care where she died due to a bowel obstruction. If the bowel obstruction had been detected when she began complaining of pain, her doctors could have resolved the issue by inserting a nasogastric tube to relieve pressure on the bowel or by surgery. If left untreated, the condition is very dangerous. The patient can develop peritonitis, go into septic shock, and die.  This is precisely what happened to Diane Stewart.

Her family has filed a medical malpractice lawsuit against the hospital as well as her surgeon.  As part of the investigation into Stewart's death, a nurse told an investigator from the Department of Health Services that she had called two doctors asking to insert a nasogastric tube but both denied her request.  She also told the investigator she asked one of the doctors to visit Stewart, but he declined to do so.  According to the lawsuit, Stewart showed further signs of a bowel obstruction.  She was experiencing decreased urine output, nausea, vomiting, elevated heart rate, and a sudden drop in blood pressure. On Monday morning, she was disoriented and breathing rapidly, and nurses could not find her pulse, records show. She was rushed to the emergency room.  She died due to a bowel obstruction, according to hospital records.

According to a story in the San Francisco Chronicle, state health investigators found that the hospital destroyed part of Stewart's medical records. "In 2008, investigators from the state Department of Public Health found that "relevant" portions of Diane Stewart's computer file had been deleted after her death and that a supervisor instructed a nurse to make postmortem "late entries" to describe her care. In a written statement, the hospital said that only temporary notes that were never intended to become part of Diane Stewart's permanent record had been discarded. Soon after that, her son (a physician) asked to review her medical records. Stanford officials resisted. Meanwhile, after her death, someone deleted some of her records from the hospital computer, the state health department later found. Then, a week after she died, nurses made a series of late entries to her file. The late entries described her condition in the hours before she went to the intensive-care unit. In a 2008 statement of deficiencies, the health department said Stanford Hospital had "failed to permanently record relevant information" about the patient, as required by state law. In the lawsuit, Stewart's family says that both the destruction of the records and the late entries to the file were part of an effort to cover up the negligence and mistakes that led to her death."

Diane Stewart's death is a tragedy.  According to her family, the death was a direct result of her physicians' failure to diagnose a bowel obstruction and treat it in a timely fashion.

The Senate Health, Education, Labor and Pensions Committee heard testimony last week from medical experts concerning the proposed Medical Device Safety Act of 2009. If the Act becomes law, it would restore many of the patient rights lost in the 2008 Supreme Court ruling in Riegel v. Medtronic. In an 8-1 ruling, the nation’s highest court exempted medical device manufacturers from civil lawsuits in state courts if the medical device in question had been previously approved by the FDA. The Supreme Court’s pre-emption ruling was a setback to those who’ve been injured by defective medical devices. One of the key supporters of the Medical Device Safety Act is Dr. William Maisel, director of the Medical Device Safety Institute and a cardiologist at Beth Israel Deaconess Medical Center in Boston. Dr. Maisel also chairs the FDA’s Circulatory Advisory Committee. In his testimony before the Senate committee, Maisel told the Senators that FDA approval of a medical device does not guarantee its safety. Furthermore, Maisel argued, the FDA is not capable of monitoring every medical device that is on the market. The legislation has received letters of support from AARP, the Center for Justice and Democracy, Consumer Federation of America, the Consumers Union, and the National Association of Consumer Advocates. It is endorsed by National Conference of State Legislatures, the New England Journal of Medicine, the American Bar Association, AARP, the Center for Justice & Democracy, Consumer Federation of America, Consumers Union, Homeowners Against Deficient Dwellings, National Association of Consumer Advocates, National Consumers League. OWL - The Voice of Midlife and Older Women, Progressive States Network, Public Citizen, and the National Research Center for Women & Families.

As of January 1, 2010, text messaging while driving will be illegal in New Hampshire. Governor John Lynch has signed legislation that will impose a $100 fine for drivers who are caught texting while driving on New Hampshire roads. Similar legislation was defeated last year. However, a Boston MBTA accident earlier this year may have influenced the NH legislators. In that accident, the subway driver was texting his girlfriend just prior to the subway crash. Fifteen states have banned or will ban texting while driving. Recent studies have concluded that the practice is as dangerous as drunken driving. A study issued last week noted that texting drivers are 23 times more likely to be involved in a car crash than those who are not so distracted. The legislation has some weak points. It exempted the act of placing a phone call and did not address the problem of talking on a cell phone while driving. Some states have instituted bans on any cell phone use that is not hands free.

It didn't last more than a day, and it's already over. The highly anticipated first Neurontin trial ended after an anonymous donor offered $50,000 to pay the educational expenses of the decedent's daughter. The donor offered to put the money in a trust for the 10-year-old daughter of suicide victim Susan Bulger. As the case was preparing to go to trial both sides acknowledged the difficulty of the case given the plaintiff's personal history and past suicide attempts. Yet, the maker of the epilepsy drug Neurontin had to face some issues as well, not the least of which involved marketing the drug for off label uses and downplaying the increased suicide risk. The trial presented risks for both sides, a common theme in all trials. This one ended on a compassionate note. Some have speculated that the anonymous donor was an attorney friend of Bulger's family lawyer Mark Lanier. In a sense, it doesn't matter. What matters is someone stepped forward to assist with the financial needs of a young girl who'd lost her mom. That's all that matters in this case.

Maryland's highest court has reversed a lower court and revived a jury verdict awarded to a family in a birth injury case. Peggy McQuitty and her son Dylan sued obstetrician Donald Spangler in Baltimore County Circuit Court for failing to inform her that an immediate Cesarean section was possible after an ultrasound revealed an abnormality in her uterus. Ten days later, Peggy McQuitty suffered a complete uterine abruption and an immediate C-section was performed. McQuitty's son Dylan was born with cerebral palsy. If a C-section had been performed upon receipt of the ultrasound, the result could have been a healthy baby. In ruling for the McQuitty's, the state's high court extended the legal doctrine of informed consent to the doctor's discussions of medical options with the patient. According to the Maryland Daily Record, "the $13 million award includes $3.5 million in compensation for pain and suffering, which is expected to be reduced significantly due to Maryland’s statutory cap on non-economic damages, resulting in a final award of about $10 million.

Statutes of limitations restrict the time period that a person can file a lawsuit.

The general statute of limitations for medical malpractice actions in New Hampshire is three years from the time the negligent event occurred or when it should have been reasonably discovered. However, there are exceptions to this rule such as in cases involving minors or in cases involving a federally funded medical provider. In all instances, it is imperative that you act promptly if you believe you're a victim of medical malpractice. Contact an experienced medical malpractice attorney in order to preserve your legal rights.