Lansing Personal Injury Lawyer - Medical Malpractice

AAJ Debunks Myths About Medical Negligence

David Mittleman — Thu, 05 Nov 2009 12:46:56 GMT

President Obama promised a floor debate on health care reform in the House, and now that promise is coming to fruition. The debate is sure to include the classic opponents of healthcare reform, including the U.S. Chamber of Commerce, as well as other tort reform proponents such as the asbestos, insurance, and pharmaceutical companies. However, one of the most problematic arguments used by these groups is that medical malpractice lawsuits are the basis for the rising cost of healthcare and that the answer is not healthcare reform. Instead, they argue that limiting “frivolous lawsuits” is the panacea to our country’s healthcare cost woes.

The American Association for Justice (AAJ), a trial lawyers group based Washington, D.C, recently released a 30-page report (pdf) outlining the pertinent arguments of the debate. Specifically, the five myths the AAJ outlines are:

Myth #1: There are too many frivolous lawsuits, and curbing the number of lawsuits would cut down the cost of healthcare.

The actual number of lawsuits filed per year is questionable. What most people don’t understand is that trial lawyers don’t have near the financial power that an insurance company does. Specifically, insurance companies can spend enormous, and seemingly endless, amounts of money to win a case. Plaintiffs’ attorneys, on the other hand, are on very tight budgets and must question the validity of every case that might come their way. Wasting money attempting to prove a case that doesn’t have merit is nonsensical, so plaintiffs’ attorneys aren’t scooping up every case possible, contrary to popular belief.

While the number of frivolous lawsuits is questionable, the number of medical negligence cases aren’t: in fact, according to the Institute of Medicine’s 1999 “To Err is Human” report, 98,000 people are killed in hospitals each year from preventable medical errors.

Furthermore, a Hearts Newspaper Group “Dead by Mistake” investigation into medical malpractice found that the number of patients affected was closer to 200,000, when hospital-acquired infections were taken into consideration.

Are all of these individuals affected by medical negligence flocking to file lawsuits? Apparently not: according to a Harvard study, only 1 in 8 people injured by medical negligence filed a malpractice claim.

Other myths included in the AAJ report include:

Myth #2:

Malpractice claims drive up the cost of healthcare

Myth #3:

Doctors are fleeing

Myth #4:

Malpractice Claims Drive up Doctors’ Premiums

Myth #5:

Tort reform will lower insurance rates

For additional information on the myths surrounding healthcare reform and the costs of healthcare, see AAJ's "Debunking the Myths".

Originally posted at InjuryBoard by David Mittleman

Michigan Medical Malpractice Claims Fraught With Obstacles

David Mittleman — Wed, 04 Nov 2009 15:58:00 GMT

Most of us know little or nothing about the practice of medicine. When we go to our doctors, for everything from a routine checkup to a serious emergency, we trust in them to conduct a proper and thorough examination and to formulate an adequate plan of care. Sometimes, as a result of the carelessness or inattention of the physician or other medical provider, a patient is harmed rather than healed.

Doctors and other medical providers have a legal duty to provide patients with treatment that meets the "standard of care." In layman's terms, the standard of care is what an ordinary and prudent doctor should do in a given situation. If a doctor breaches the standard of care, and the patient is injured as a result, the doctor has committed medical malpractice.

Medical malpractice is more than just a breach of duty, it is a betrayal of trust. However, Michigan law can make it very difficult and expensive for victims to hold the at-fault doctors accountable. There are numerous procedural requirements demanded by law that must be strictly followed. Failure to follow these rules precisely could (and often does) result in the dismissal of an otherwise valid medical malpractice claim. Injured victims have only two years to bring a claim for malpractice, while victims of other types of negligence have three years. Moreover, the victim is required to procure the testimony of other doctors in order to prove his or her case. This is an expensive requirement, and the injured person's doctors must have exactly the same credentials as the at-fault doctor or the claim may be dismissed.

In Michigan, even if a victim of medical malpractice can satisfy all the procedural requirements and prevail in court, their level of compensation may be limited. Medical malpractice damage caps operate to prevent severely hurt patients from fully recovering for their injuries.

Our office handles medical malpractice claims regularly, and our attorneys have extensive experience navigating Michigan's legal obstacle course. If you suspect that you or a loved one is a victim of medical malpractice, contact our office to see if we can put our expertise to work for you.

Originally posted at InjuryBoard by David Mittleman

RI Hospital Fined for Fifth Wrong-Site Surgery, Ordered to Install Cameras in Operating Rooms

David Mittleman — Wed, 04 Nov 2009 10:26:54 GMT

Recently, I wrote about Rhode Island Hospital’s fifth wrong site surgery since January 2007, where doctors operated on the wrong finger of a patient. After conducting an investigation, the Rhode Island Health Department has levied a fine of $150,000 against the Hospital, citing that the surgical team violated safety policies when it performed the incorrect operation on October 22^nd.

According to investigation reports, the surgical team failed to mark the correct fingers and also failed to follow the rules for a “time out”, which is a pause before beginning a surgery to verify the patient, and ensure the correct procedure and operating site. Furthermore, the Hospital also failed to follow new error-prevention protocols instituted in Rhode Island on July 1.

Along with the fine, Rhode Island Hospital will also be required to install video cameras and audio equipment in all its operating rooms within 45 days. All surgeons will be taped at least twice a year. However, the Hospital can decide if it will inform the doctors in advance that they will be monitored during a particular surgery. Moreover, the Health Department will also require the Hospital to assign a clinical employee who is not part of the surgical team to observe all surgeries at the hospital for at least one year to ensure that doctors are marking sites to be operated on and taking a time out prior to starting a surgery.

Originally posted at InjuryBoard by David Mittleman

Radiologists Reluctant to Admit Mammography Errors to Patients

David Mittleman — Tue, 03 Nov 2009 12:54:31 GMT

According to a new study released this month, radiologists may not be so honest when it comes to admitting their mistakes. Specifically, radiologists may not disclose mammography errors to patients, resulting in delayed treatment for progressive cancers.

The study, conducted by the departments of medicine and bioethics & humanities at the University of Washington, surveyed 364 radiologists at seven different Breast Cancer Surveillance Consortium sites located in separate geographical areas. The radiologists were given a hypothetical situation in which comparison screening mammograms were placed in an incorrect order, so that it appeared as if breast calcifications were decreasing in number in a patient when they had actually increased. The doctors were then told that there was an error, which resulted in a delay in treating the cancer. The radiologists were then asked to respond to three questions: 1) how likely they were to disclose the mistake, 2) what information they would share, and 3) what were their actual experiences and attitudes with malpractice.

The results of the study indicated that:

24% responded that they would “not say anything further to the patient”
31% responded that they would tell the patient that “the calcifications are larger now and are suspicious for cancer”
30% responded that they would tell the patient “the calcifications may have increased on your last mammogram, but their appearance was not as worrisome as they are now”
15% responded that they would tell the patient that “an error had occurred during the interpretation of your last mammogram, and the calcifications had actually increased in number, not decreased”

74% of the radiologists claimed that they were more reluctant to tell patients of mistakes because of fears over medical malpractice. Apparently, failure to report errors to patients was not an uncommon practice for many of the radiologists surveyed. In fact, 49% admitted that they had been sued for medical negligence. However, other factors also had an effect in the radiologists’ degree of honesty. For example, physicians have expressed concerns over increasing stress in patients after admitting a medical error. Furthermore, the study author also hypothesized that some physicians feel uncomfortable with their communication skills, and struggle to admit to a patient that they had mad a mistake. Despite these other factors, 15% is not a comforting amount of radiologists who say they would be completely honest about their mistakes. Hopefully, continued studies like this will help to improve doctor and patient communication.

Originally posted at InjuryBoard by David Mittleman

Kansas Supreme Court Called to Protect Patients From Tort Reform

David Mittleman — Mon, 02 Nov 2009 16:35:06 GMT

Kansas, like Georgia, will be visiting the problem of tort reform this year as it decides whether or not caps on damages in medical malpractice cases violates a patient's rights after he or she has been injured by a doctor's negligence.

The legal battle surrounds a wrongly removed ovary. Amy Miller of Eudora, Kansas, went to have her right ovary removed. Dr. Carolyn Johnson unfortunately removed the left ovary instead. Ms. Miller filed a lawsuit and a Kansas jury comprised of her peers returned a verdict for $759,680.

However, because of laws in Kansas that place limits on damages for pain and suffering (noneconomic damages) in medical malpractice, the Judge in the case stripped $150,000 of the verdict that had to do with future noneconomic loss.

Attorneys for Ms. Miller argue that Kansas's law on medical malpractice caps violates Kansas's constitutional guarantees to a jury trial.

In addition to the Constitutional violation, her attorney argues that it violates the seperation fo powers by allowing the Legislature to unnecessarily take away a power vested to the judiciary and juries.

Most important, however, is the fact that caps on noneconomic damages do nothing but place the greatest limitations on the people who have been injured the most. Follow us as we let you know how these pivotal cases are decided across the country.

Originally posted at InjuryBoard by David Mittleman

The Doctor Is In and He Says Tort Reform Isn't the Cure

David Mittleman — Wed, 28 Oct 2009 16:26:12 GMT

Even doctors are starting to speak out about our insurance crisis. I recently read a post online by Rahul K. Parikh, M.D. that had me nodding my head. Dr. Parikh went straight to task and took on the proponents of "tort reform" (Crooked Justice) with the following line:

"There's nothing "sure or quick" about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare's price tag, and rising malpractice premiums have had very little impact on access to care."

Why does he get it? It's because he's willing to look at the facts and put people first, not profit, not even his own profit. First, he noted that no matter how you look at it, malpractice lawsuits aren't the major factor in rising health care costs. As Dr. Parikh put it:

malpractice costs account for less than 2 percent of healthcare spending. Saving 2 percent of the over $2 trillion we spend on healthcare isn’t going to bend the cost curve.

Second, malpractice lawsuits are not frivolous. By and large, if you're willing (both as a client and a lawyer) to go through the incredible expense of suing a doctor or hospital, something truly significant has probably happened to you. Dr. Parikh reviewed a Harvard study published in the New England Journal of Medicine. He nails it on the head when he says:

Most of the suits were not frivolous: Almost two-thirds of cases involved errors by doctors.
Seventy-three percent of injuries in which a doctor committed an error resulted in payments. Seventy-two percent of cases in which there was an injury not due to physician error did not result in payment. Those conclusions do not paint the picture of a medical-legal system burdened by ambulance-chasing lawyers and their litigious clients.

Yes, that's right. Lawsuits were more likely to result in payment when the doctor made an error. Lawsuits were more likely to result in no payment if there was no error. Where's the frivolity? It's PR propoganda.

What isn't propoganda is the following. Tort reform will not save lives. Giving doctors and hospitals less incentive to improve practices and maintain care at high levels only puts us in jeopardy. Maybe that's what the doc meant when he wrote:

So for those who push tort reform as a panacea for a sick healthcare system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper.

Originally posted at InjuryBoard by David Mittleman

Medical Negligence Law Equals Accountability, Tort Reform Equals Insurance Greed

David Mittleman — Thu, 15 Oct 2009 16:14:42 GMT

There's some smoke and mirrors going on at the Congressional Budget Office and it's designed to take away your rights as a patient and to diminish the value of the 7th Amendment. We're in the middle of an insurance crisis, and all anyone wants to talk about is a medical crisis that the evidence is showing doesn't really exist.

The Congressional Budget Office recently released a report that was heralded as signaling a need for "tort reform", aka "erasing patient's rights." Yet, its own math just doesn't add up to the rhetoric. Even if all the most stringent medical malpractice liability reforms were enacted, it would only reduce the cost of health care by one half of one percent (0.5%). To put it this way, it would reduce the cost of health care by the amount Americans spend on dog and cat food each year.

The Center for Justice and Democracy has released its own response to the CBO report and its conclusions are stunning - the CBO report on Medical Malpractice is flawed through and through. First, the report failed to indicate that 100,000 people die every year from medical negligence in hospitals alone, a figure determined by the Harvard School of Public Health. That is more than the annual combined fatalities in the U.S. from motor vehicle accidents, AIDS, and fires. MORE.

Second, the study failed to really analyze its own factual findings. Defensive medicine, a hot-button issue, is being cited as a response to the fear of medical malpractice lawsuits. But the CBO report found that defensive medicine only really happens with Medicare patients, due to the payment structure of fee-for-services. Defensive medicine was not found in private managed health care systems. Well, the same rules of medical malpractice apply to doctors regardless of their patient's age, so medical malpractice isn't what is causing defensive medicine. To the extent defensive medicine exists at all, it can be controlled by simply managing care correctly as opposed to taking away patients' rights and possibly killing more people.

Most importantly, the CBO ignores its own findings that Tort Reform (Crooked Justice) could increase patient deaths due to medical negligence by as much as 4,800 patients per year. Apparently, three studies was insufficient data to really consider the consequences.

Tort Reform will not make health care cheaper. It will not make you healthier.

Tort Reform would make it more likely that the next time you go to a hospital or doctor, the doctor treating you or your loved one will have less of an incentive to perform his duties reasonably. That's a risk we just can't afford.

Originally posted at InjuryBoard by David Mittleman

Why Do Doctors Always Think They Are Entitled To Special Treatment?

David Mittleman — Fri, 02 Oct 2009 09:59:00 GMT

I recently wrote a letter to the editor of the Lansing State Journal on just this topic. The truth is, it's not just my friend and anesthesiologist Dr. Kenneth Elmassian, who takes this viewpoint - the local Michigan State Medical Society (MSMS) and the national American Medical Association (AMA) group that want to place doctors above the law. They have a problem with defensive medicine because of their faulty assumption on its connection to health care costs. They also want to single out doctors and give them blanket immunity that doesn't exist with any other type of private individual.

Frankly, it is my choice and right as a patient to want defensive medicine for me and my family. I don't want doctors cutting corners if the technology is available. We are not in the midst of a medical or legal crisis. WE ARE IN AN INSURANCE CRISIS. WE NEED INSURANCE REFORM.

The Constitution of the United States makes the right to a jury trial in civil matters a protected right by virtue of the 7th Amendment. If a jury can decide the factual disputes in all other negligence cases, and if a jury can decide whether a person commited a crime that can be punishable by loss of libery (incarceration), then a jury can certainly decide fair and adequate damages when a doctor harms a patient, and they and their families are affect for the rest of their lives!

Doctors put their pants/skirts on just like WE do!

Originally posted at InjuryBoard by David Mittleman

Immunity for Emergency Room Care Is A Deadly Costly Mistake

David Mittleman — Thu, 01 Oct 2009 12:20:00 GMT

Proposed Michigan Senate Bill 858 (SB 858)(PDF file) could forever alter the quality of care in Michiagn Hospital Emergency Rooms, resulting numerous devastating consequences for Michigan patients, taxpayers, and interested parties.

SB 858 may appear on the surface as an attempt to diminish medical malpractice lawsuits, but when you stop for a second and think about the ramifications of what this legislation would do - the price is too high for the residents of Michigan.

SB 858 would require a plaintiff to show that an emergency room physician committed "gross negligence" and would have to prove that through "clear and convincing evidence." The major problem with that standard is that it would lower our expectations of care in Michigan Emergency Rooms because there would be immunity for any wrongdoing unless it was intentionally done or the action was done with reckless disregard for a person's safety. Another consequence that must be considered is the disproportionate weight this bill would have on the care of the people who are most vulnerable - namely those folks who need to treat regularly in emergency rooms such as infants, seniors, pregnant women, minorities, and the poor.

At some point, we will all likely have to go to the emergency room. The last thing you will want to worry about while you are awaiting your emergency care is whether or not the care you are about to receive has been compromised as a result of SB 858.

And for those of us who worry about the financial security of state government, realize that this bill almost guarantees that Michigan will never get reimbursed for the Medicaid payments it makes to individuals who are injured as a result of emergency room medical negligence. 42% of all people who enter an emergency room in Michigan are covered by Medicaid. Under the laws we have today, if they are injured by a medical professional's negligence, and Medicaid continues to pay subsequent hospital bills, Medicaid has a right to reimbursement when that person recovers in a medical malpractice lawsuit. The state gets its money back. But, if SB 858 gets passed, the state deficit will continue to grow.

Contact your state representatives and senators and let them know how you feel about SB 858. Tell them you are concerned that the cost of providing this form of immunity is too high for Michigan.

To find out who your state senator is go to this website.

To find out who your local representative is go to this site.

Lansing. If you live in the Lansing/East Lansing area, your state representative could be either Joan Bauer, Mark Meadows, Barb Byrum, or Rick Jones.

If you live in the greater Lansing/East Lansing area, your state senator is likely Gretchen Whitmer.

Originally posted at InjuryBoard by David Mittleman

Brooklyn Man Dies of Heart Attack After a Series of Medical Errors at Maimonides Medical Center

David Mittleman — Mon, 28 Sep 2009 09:14:39 GMT

Doctors at the Maimonides Medical Center in Brooklyn, New York, seriously dropped the ball on maintaining the standard of care in 2008. Jacob Goldbrenner, a Brooklyn man, was brought to Maimonides with chest pains in July of that year, but tragically died as a result of a series of medical errors.

In fact, Goldbrenner was suffering a serious heart attack. However, he and his family waited five hours while waiting for someone to treat his ailing heart. First, doctors couldn’t locate the key to the cardiac catheterization lab, then they couldn’t find an anesthesiologist. Horrifically, one medical resident didn’t even know where the lab was located. The cardiac catheterization lab could’ve saved Goldbrenner’s life, since the lab is typically where doctors are able to check blood flow, determine defects of the heart, and perform angioplasty or other life-saving procedures during a heart attack.

Ultimately, Goldbrenner was not getting enough oxygen to his heart, and it became necessary for doctors to insert a tube into his lungs to help relieve the problem. Unfortunately, the tube was placed in his stomach instead. Finally, he was placed in an ambulance and taken to Westchester Medical Center, where he was told he would receive a heart transplant. There was no heart available at Westchester, however, and Goldbrenner died two weeks later.

Originally posted at InjuryBoard by David Mittleman