Recently in Medical Malpractice News Category

Federal investigators released a new report stating that hospital employees are only reporting one out of seven errors, events, and accidents that are harming Medicare patients while they are hospitalized, as reported in the New York Times, January 6, 2012.  Daniel R. Levinson, inspector general of the Department of Health and Human Services released the study coming to the conclusion that hospitals are rarely changing their policies, even after preventable injuries and infections have been reported, some errors even resulting in the death of patients.

Hospitals that are paid under Medicare must track medical errors and adverse patient events, analyze the causes and improve the care to avoid repetition of similar mistakes.  Most hospitals are equipped with a system for employees to inform hospital managers of adverse events which cause significant harm to patients.  These adverse events include severe bedsores, medication errors, patients who were infected while in the hospitals, excessive bleeding from blood thinners, and overuse of painkillers resulting in delirium.

The inspector general's report estimates that over 130,000 Medicare patients experienced one or more adverse events in hospitals in a single month.  Employees are under-reporting these adverse events for many reasons, including:

• Not recognizing what constitutes patient harm
• Not recognizing that these events actually harmed patients and should be reported
• Assuming another employee would report the injuries
• Employees thought these were isolated events and would not likely reoccur
• The adverse events were so common there was no need to report them

Most hospitals did not believe these adverse events demonstrated any systemic quality problems.  Most hospitals made few changes to their practices or policies after detecting these adverse events either. Hospitals that are inspected are generally not scrutinized as to how they keep track of adverse events leading to serious injuries, so the problem is often not corrected.

The Obama administration has placed a high priority on reducing medical errors that lead to injuries; however, not much of this priority has produced needed changes in hospitals.  For example, the report states that out of a detailed review of 293 cases in which patients had been harmed due to medical errors, only 40 cases were reported to hospital managers, 28 cases were investigated by the hospitals, and only five cases led to changes in the way hospitals practiced or in hospital policy changes.

However, there is hope.  Over 2,900 hospitals have joined the administration to reduce errors, with a goal to save 60,000 lives in three years.  Also, while only 6 states had laws requiring hospitals to report publicly regarding patient infections developed in the hospitals at the end of 2005, now at least 27 states have added the laws.

The Medical Injury Compensation Reform Act or MICRA was enacted in 1975 by pressure from doctors in California wanting to limit the amount of damages victims of medical malpractice could obtain from lawsuits.  This limits the amount of money a victim of medical malpractice in California can obtain for non-economic damages, including emotional distress and pain and suffering to $250,000.  Since its introduction, tens of thousands of patients injured by preventable medical errors have been denied just compensation for their injuries.  

Although this creates a challenge for victims of medical malpractice, there are still additional resources available.  And while MICRA creates a difficult challenge for victims of medical malpractice in California, there are other states that are far more excessive with their limitations on damages.  For example, Virginia limits the total amount a victim of medical malpractice can recover for economic, non-economic, and punitive damages to $2 million.  Indiana limits the total amount for economic and non-economic damages to $1.25 million.  If a birth injury victim in California was awarded $7 million for economic damages, that same victim in Indiana would only receive $1.25 million to cover the same damages.   

Although non-economic damages in California are limited to $250,000 for medical malpractice victims, there is no cap on economic damages.  Economic damages include a lifetime calculation of lost wages and medical care for the victim of medical malpractice.  If a child suffers a severe and permanent birth injury such as cerebral palsy, although MICRA limits his or her non-economic damages to $250,000, there are still economic damages that must be calculated.  How much does it take to provide medical care for this individual for the rest of his or her life? Does this victim require a full time care giver?  How much lost wages would this victim be expected to lose for a lifetime of being out of work?

The cost of living has gone up dramatically since 1975 and while the $250,000 for non-economic damages has substantially decreased in value when factoring in the cost of living, the cost of medical care has increased dramatically, so the economic damages produce sizable damages for victims of medical malpractice.  

Taking the cerebral palsy birth injury example from above, this victim will likely need full time medical care and resources for the rest of his or her lifetime.  Full time medical care may require a full time care giver to handle daily routines including getting dressed, bathing, and feeding.  Also, medication, therapy, and doctor visits will likely be required.  The amount of medical care and resources necessary to take care of a severe cerebral palsy birth injury victim may cost millions of dollars over the victim's lifetime.  There is also the amount of lost wages the victim will lose over a lifetime and this must be factored into the economic damages as well.  Economic damages are the reasons why a medical malpractice victim may recover damages into the millions when MICRA places non-economic damages at a maximum of $250,000.   

If you or someone you love has been the victim of medical malpractice, you should immediately consult with a medical malpractice lawyer who is also a licensed physician, such as Dr. Bruce G. Fagel.  The consultation is free and if we take on your case, there is no fee unless we win your case.  

Bilirubin is a substance found in the bile of infants.  Bile helps the body digest fats, is produced by the liver, and released into the small intestine to help with the digestion.  A small amount of bile is released into the stool and must therefore be replaced by the liver.  When the liver breaks down old red blood cells, it produces bilirubin, which is then removed from the body through the stool. Elevated bilirubin levels may be an indicator that a baby is in danger of getting certain diseases such kernicterus.  A bilirubin test will measure the amount of bilirubin in a blood sample.

If bilirubin levels rise slightly, this is usually not a problem.  In fact within the first 24 hours after birth, nearly half of all newborns have elevated bilirubin levels.  This is because newborns do not have a liver that is mature enough to break down the excess red blood cells they are born with.  However a high level of bilirubin can cause hearing loss or eye movement problems, mental retardation, and eventually if left untreated, can lead to kernicterus. 

Kernicterus is a form of brain damage that occurs by a high level of bilirubin in an infant's blood.  Elevated bilirubin levels can be caused by severe jaundice which is a yellowing of the skin and eyes of a newborn which may be detected within days of birth.  Severe jaundice can be treated with special lights, phototherapy, or a blood transfusion.

Kernicterus warning signs to pay attention to:

• The baby has an abnormally high pitched cry
• The baby is lethargic and extremely sleepy
• The baby does not respond to touching or startles from sudden movements
• The baby has poor muscle tone
• The baby suffers from seizures
• The baby has a fever

Long term disabilities resulting from kernicterus:

• Movement difficulties
• Hearing loss or deafness
• Problems moving the eyes
• Learning problems

These problems are an important reason why parents need to pay attention to elevated bilirubin levels and jaundice in their newborns.  In the case of kernicterus, prompt treatment may help prevent additional brain damage from occurring.  Treatment for kernicterus includes speech therapy, physical therapy, and special education. 

If you discover your child has kernicterus, you should consult with a birth injury attorney like Dr. Bruce Fagel.  If the kernicterus could have been prevented, you may have a case for medical malpractice. Visit Kernicterus Video for an informative video.

Each year cancer diagnosis delays or cancer misdiagnosis, leads to enormous suffering and wrongful deaths for thousands of Americans and their families. Cancer is the uncontrollable growth of abnormal cells and can occur anywhere in the body.  These cells can either be cured or they will lead to the eventual death of the patient.  While normal cells multiply when the body has a need for them and then die when the body no longer has a need for them, cancer happens when the growth of cells in the body is uncontrollable and the cells begin to divide too quickly.  Cancer cells also do not die when the body requires them to die.

Early detection for many forms of cancer is critical to improving a patient's survival rate.  With the improvements in cancer treatment over the past couple decades, those with certain types of cancers have a dramatically improved chance of recovery if the cancers are detected and treated early.  The types of cancers that have a good chance of being treated, if treated early in the stages, include colon cancer, breast cancer, lung cancer, and non-small cell cancers.  However, some cancers have a poor chance of recovery no matter what stage the cancer is detected.  These types of cancers include small cell lung cancer, pancreatic cancer, and ovarian cancer.

Proper cancer diagnosis and early detection are critical to helping the patient live a longer and healthier life.  If a doctor fails to diagnose cancer in its early stages, confuses the cancer for another medical condition, or even fails to diagnose the cancer at all, can lead to the spreading of the cancer to other parts of the body and the eventual death of the patient.   

If a cancer misdiagnosis by a doctor for a treatable cancer leads to serious injuries to the patient or death, a medical negligence or medical malpractice lawsuit may be initiated. One critical element in a medical malpractice lawsuit involving cancer is proving that the doctor should have diagnosed the cancer at the early stage and provided proper treatment, preventing the cancer from causing severe damage to the patient.  If the cancer was a type where early treatment would not have made a significant difference, then a medical negligence or medical malpractice lawsuit would likely not be feasible.

Dr. Bruce Fagel has extensive experience dealing with cancer misdiagnosis and delay in diagnosis cases.  In addition to being a top medical malpractice lawyer, Dr. Fagel is also a licensed physician, and has over 10 years emergency room experience.  This extensive combination of experience allows Dr. Fagel to probe medical records and understand if there is a case for medical malpractice.  

Diagnostic physicians, who rely on diagnostic tests, need to inform referring clinicians when test results produce urgent or unexpected findings.  Test communication failures for diagnostic testing are placing physicians at an increased risk of medical malpractice claims, as reflected in an article selected as the "CME Activity of the Month" in the most recent edition of Journal of the American College of Radiology (JACR).

During the past decade, clinicians have dramatically increased their orders for diagnostic examinations.  During the period between 1996 and 2003, there has been an increase by approximately 40% for malpractice payments related to diagnosis.  This problem was reflected in the article by Brian D. Gale, MD, MBA, assistant professor of radiology at SUNY Downstate Medical Center in Brooklyn.  

During the period of 1991 to 2009, National Practitioner Data Bank data showed communication failure awards was responsible for an increasing proportion of total United States malpractice awards for providers.  The proportion jumped from .93% in 1991 to 2.31% in 2009.  The total indemnity payout for all medical specialties claims dramatically rose from $21.7 million in 1991 to an alarming $91 million in 2010.  This averages out to a $4.67 million increase annually.  Factors that contributed to the communication failures included long turnaround time, delays in reporting findings, and failure of the patients and physicians to receive the results.

There is hope for improvement however.  Dr. Brian Gale suggests that using semi-automated critical test result management systems may help to improve the patient safety and work flow, improve the notification reliability for everyone in the loop, and provide legal documentation.  Dr. Gale suggests healthcare organizations need to have a clear set of policies in place to address reportable test results, to make sure patients and referring providers are notified and followed up with.

As more knowledge surfaces regarding cancer screenings, expert groups are recommending less frequent screenings for prostate, breast, and cervical cancers. It appears from numerous clinical trial studies and analysis of medical data that previous recommendations such as annual Pap tests for women be less frequent, in the case of Pap tests, every three years instead.

Studies are showing that not only may testing too frequently for cancer potentially cause harm to patients, it also appears to be a financial burden to the health care system.  However, some doctors are walking the fine-line between saving money and risking a lawsuit for failure to detect a treatable cancer in time.

An article in the NYTimes.com titled, "Considering When It Might Be Best Not to Know About Cancer" breaks down new screening recommendations from expert medical groups:

• Women in their 40's do not appear to benefit from mammograms
• Women ages 50 to 74 should have mammograms every two years, instead of every year
• P.S.A. screening test for prostate cancer does not save lives and causes enormous harm
• Pap tests for women for cervical cancer should be every three years, instead of every year

Expert medical groups are now questioning if prostate cancer screenings are saving any lives at all.  These groups fear that the screening often leads to disabling treatments for men, who really didn't need to treat the cancer in the first place.

A mammography study revealed that out of 138,000 cancers detected in women each year, somewhere between 120,000 to 134,000 of these cancers are already lethal and beyond being treatable or the cancers will grow slowly and not need to be treated at all.

Dr. Otis Brawley, chief medical officer with the American Cancer Society states, "Screening is always a double-edged sword.  We need to be more cautious in our advocacy of these screening tests." However, many doctors and specialists, such as urologists, radiologists, and oncologists believe screening is necessary to detect and treat cancer early.  Questions are also arising whether this subject is coming up simply due to costs and the modern healthcare crisis.

Regarding costs, The New England Journal of Medicine posted an article concluding $5.2 million must be spent on screening to prevent one prostate cancer death. Estimates are this amount is actually higher than that.  This brings up the issue of how much to spend in order to save lives.  It also creates a dilemma for doctors who will have a difficult time explaining the new guidelines to patients.  Some doctors may make recommendations based on their own beliefs and the wishes of the patient's for more screening.  Also, as more cancers are being determined not to be treatable, or not be a threat, the issue of cancer screening has become even more complicated; likely leaving many patients wondering when and if they should be screened.

Harbor-UCLA Medical Center recently failed government inspections, including failure to keep its operating rooms clean and failure to keep patients safe from possible infections, as reported in the October 30th edition of the Los Angeles Times.   Violations included the hospital staff not washing their hands, operating rooms kept at the wrong humidity level, and building violations, including dusty ceilings and holes in the ceilings. 

The failure of the hospital to keep a sanitary environment puts the patients at risk for infection.  This is not the first time Harbor-UCLA Medical Center was warned for keeping an unsanitary environment.  In fact, earlier this year, infection control problems were so serious, that the federal government sent a letter threatening to revoke their Medicare funding, which in essence would financially cripple the medical center.  Federal inspections such as this provide important protection for the public.  Los Angeles County Supervisor Mark Ridley-Thomas stated, "Thank God for the federal inspection.  It is necessary for the purposes of accountability and quality of care."

The hospital's chief executive Delvecchio Finley stated that the hospital had addressed all the concerns with the exception of issues relating to the age of the hospital.  Los Angeles county is investing $323 million to build a 190,000 square foot building at the hospital that will replace the emergency room and surgical facilities.  This move is necessary as the current conditions of the hospital are unacceptable and will not be in compliance.  The Times states the hospital had 80,600 patients visit the emergency room and 23,000 patients were admitted to the hospital in the last fiscal year.  Harbor-UCLA Medical Center also took on additional patients after the closure of Martin Luther King Jr./Drew Medical Center in 2007.   James Lott, executive vice president of the Hospital Association of Southern California stated, "The reports should put Harbor-UCLA on alert that it needs to improve - quickly.  We only have to recall what happened with the former King/Drew Medical Center. The downfall of that hospital started with these types of alerts."

The California Department of Public Health has also fined the hospital four times for medical errors that put the patients at serious risk of injury or death.  The state also claims a patient who was hit by a car died in the hospital because a nurse failed to closely monitor his condition.  A union representative for the nurses, Katarina Del Valle Thompson believes inadequate staffing has also contributed to the problems.  "The best thing we could do to minimize the chances of errors would be to staff adequately."

Several hundred USC University Hospital workers went on strike Wednesday, picketing outside the Keck Medical Center of USC.  Workers who went on strike include certified nursing assistants, X-ray technicians, and housekeeping staff.

The National Union of Healthcare representing the workers state they have been in negotiations with the hospital for over a year.  The union is demanding the workers have a better say in how the hospital is staffed. The union claims there is a serious short-staffing problem, a one year freeze in wages, and the workers are excluded from the university's tuition and retirement benefits plan.  There are additional issues as well.  A respiratory technician, Noemi Aguirre stated, "we have a lot of units where we are just plain short-staffed and they haven't addressed those issues for us." Aguirre also commented, "One sticking point deals with patient care committees, which are set up by union workers so they have a voice in patient care."

The National Labor Relations Board in Los Angeles will address the workers demands later this month.  Hospital spokesman Mitch Treem stated, "While we are unable to discuss the specifics of our proposal publicly, we can say that our NUHW employees are among the highest paid in the region."

With the recent hospital worker strikes, including the 34 hospitals in Northern California, mistakes can be made. One such tragedy occurred during the recent nursing strike at Alta Bates Summit Medical Center, where a cancer patient died after a temporary replacement nurse mistakenly administered the wrong medication to the patient.  Dr. Bruce G. Fagel, a licensed medical doctor and medical malpractice attorney was quoted by the San Jose Mercury News and Contra Costa Times, September 26, 2011, "having replacement or temporary nurses working in hospitals for extended periods increases the risk of medical mistakes that harm patients."

Governor Jerry Brown signed a law requiring private accrediting firms to inspect outpatient centers at least once every three years, including surprise inspections.  The bill also requires these accrediting firms to demand improvements or revoke certification if a surgery center does not meet the proper safety standards.

The outpatient surgery centers include medical facilities that perform Lap-Band and liposuction procedures.  The author of the bill, state senator Curren Price Jr. (D-Los Angeles) became interested in this bill after singer Kanye West's mother died from liposuction and breast augmentation surgery at an outpatient surgery clinic.  Momentum increased for the bill after five patients died from having Lap-Band weight loss surgeries at outpatient surgery centers affiliated with the 1-800-GET-THIN marketing company.

This bill was enacted to protect the public's health and safety.  Previous legislation allowed loop holes for surgical centers that ran into violations by allowing them to shop for multiple accreditation firms that issued approvals.  Therefore, if a surgical center lost their accreditation from one agency, due to safety violations, they could apply to another agency for approval.  This bill will help ensure outpatient surgery centers meet safety standards including cleanliness and proper use of medication.   The law requires that the state medical board must notify the public through its website if a surgery center's license has been suspended or if the surgery center has been placed on probation or reprimanded.  

One of the supporters of the bill, Betty Brown, is the sister of a victim of Lap-Band surgery, Tamara Walter, who died after having Lap-Band surgery at an outpatient clinic in Beverly Hills.  The coroner's report placed the blame with the anesthesiologist, who was on probation at the time.  Brown testified to state lawmakers before they approved the bill.  Brown believes this new legislation would have prevented her sister's accident.  "With more regulation, there would be less a chance something like this happening.  This shouldn't continue to happen."  The Walter family and Betty Brown have filed a wrongful death lawsuit.

Senator Price stated, "It brings oversight that's long overdue over these clinics...It's going to protect the public's health and safety."

For more information about this law, read the article in the Los Angeles Times, "Tighter scrutiny for outpatient surgery centers" October 10, 2011, by Stuart Pfeifer.  Or visit the online version.

Governor Jerry Brown signed a law requiring private accrediting firms to inspect outpatient centers at least once every three years, including surprise inspections.  The bill also requires these accrediting firms to demand improvements or revoke certification if a surgery center does not meet the proper safety standards.

The outpatient surgery centers include medical facilities that perform Lap-Band and liposuction procedures.  The author of the bill, state senator Curren Price Jr. (D-Los Angeles) became interested in this bill after singer Kanye West's mother died from liposuction and breast augmentation surgery at an outpatient surgery clinic.  Momentum increased for the bill after five patients died from having Lap-Band weight loss surgeries at outpatient surgery centers affiliated with the 1-800-GET-THIN marketing company.

This bill was enacted to protect the public's health and safety.  Previous legislation allowed loop holes for surgical centers that ran into violations by allowing them to shop for multiple accreditation firms that issued approvals.  Therefore, if a surgical center lost their accreditation from one agency, due to safety violations, they could apply to another agency for approval.  This bill will help ensure outpatient surgery centers meet safety standards including cleanliness and proper use of medication.   The law requires that the state medical board must notify the public through its website if a surgery center's license has been suspended or if the surgery center has been placed on probation or reprimanded.  

One of the supporters of the bill, Betty Brown, is the sister of a victim of Lap-Band surgery, Tamara Walter, who died after having Lap-Band surgery at an outpatient clinic in Beverly Hills.  The coroner's report placed the blame with the anesthesiologist, who was on probation at the time.  Brown testified to state lawmakers before they approved the bill.  Brown believes this new legislation would have prevented her sister's accident.  "With more regulation, there would be less a chance something like this happening.  This shouldn't continue to happen."  The Walter family and Betty Brown have filed a wrongful death lawsuit.

Senator Price stated, "It brings oversight that's long overdue over these clinics...It's going to protect the public's health and safety."

For more information about this law, read the article in the Los Angeles Times, "Tighter scrutiny for outpatient surgery centers" October 10, 2011, by Stuart Pfeifer.  Or visit the online version.