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Currently Viewing Posts Tagged Medical Malpractice

Tools in the Body

They call it a counting error. The technical term from the Center for Medicare and Medicaid Services is retained foreign bodies or a retained surgical item, and they won’t pay for it because they are listed as Never Events… because they never should have happened. I think you know where this is going.

When a doctor does surgery, they are supposed to do a count of all the sponges and instruments used during surgery, before closing the patient up. Sometimes, they don’t do the appropriate mathematical standard of care and they leave something in the patient.


Maybe when the pain medication wears off, the patient begins to complain of pain and they discover the foreign body. Other times, it’s days or weeks when the person has gone home. Then, they begin to experience pain “inside” and head to the doctor because they complain of an unusual pain or upset stomach. When the x-ray is performed… there is the foreign body.  The single most left behind item is a sponge.

In an average surgery,  there are between 250-300 surgical tools used for the surgery. In a study done in 2008 and reported in the Annals of Surgery, it is estimated that mistakes in tools and sponge counts occur in 12.5% of surgeries. It’s unclear how many of these end up being left in the patient. This 2014 Washington Post article titled When your surgeon accidentally leaves something inside you, does a good summary of the risks, injuries, pain, infection and ultimate costs of surgery to remove the items. They estimate that removal surgery costs about $64,000.

The medical watchdog group The Joint Commission states that there have been a reported 770 foreign objects left in patients in the last 7 years. Of these, 16 resulted in death. A 2012 report from Johns Hopkins University found that 80,000 of the never events have occurred between the years of 1990 and 2010. Big discrepancy there in that math between those two reports!

This is an example where a doctor is not intentionally doing wrong, but it’s bad medicine because it’s bad math. And yes, these are medical malpractice claims.

After writing that, it causes me want to post a pic o’ day that makes me smile:




Cat Bite Malpractice

The title of the blog Cat Bite Malpractice, hints that the blog is going… where it hasn’t gone before!

Shocked Cat

    From Michigan’s comes the story of a woman who was bitten by a cat and then claims that her medical care made it worse.

The lady (Michelle Nurnberg ) said that she was taking care of her sister-in-law’s new cat in 2013. Nurnberg was trying to feed the cat when another cat sneaked into the garage. The cats began fighting. She got caught in the middle of the cat fight and her sister-in-law’s cat bit her on the left forearm, hand and thumb.

Nurnberg initially cleaned the bites and thought they would heal. Soon, the bites led to an infection. So, she checked into Michigan University Hospital’s emergency room for care of the infections. She now claims in a lawsuit that “Had the wounds been properly cleaned and taken care of, the infection wouldn’t have lasted this long”.

The lawsuit goes on to say that she was admitted to the hospital for treatment of osteomyelitis of the left radius of the wrist, cellulitis, acute renal failure, rashes and anemia. All because of the improper treatment and delay .

As a result of the negligence of the defendants, Nurnberg claims she suffered “prolonged, severe pain, weakness and disability.”

The lawsuit was filed in Michigan’s Washtenaw County Trial Court and seeks at least $75,000 in damages. She filed the suit without the assistance of an attorney and told the reporter that she is still suffering medical problems.

“I’m bedridden most of the time,” she said. “This has been the worst experience in my life. It has wrecked my life. I want to do everything in my power (to ensure) that this doesn’t happen to someone else.” All… because she tried to break up a cat fight.


And for pic o’ day, it’s time for some holiday favorites. My mom sent this last year. Manger Awry!

manger awry

The Stands of Ken Cuccinelli

Virginia Attorney General Ken Cuccinelli  probably has made both sides of the aisle a bit unhappy. He expressed his personal opinions regarding Federal  tort reform, and applied his same reasoning to restricting the Environmental Protection Agency(EPA).

Now, I know that politics can be some pretty boring stuff. I’ll bet that a few have already scrolled to pic o’ day. So, I’ll try to be quick.

Big Business and The Chamber of Commerce decided a long time ago that it’s cheaper to influence Congress and the US Senate,  rather than spending money in every state, trying to influence each legislator. So, if you can get favorable laws enacted Federally that override states’ rights, then you’ve done it in one vote; controlling 50 states.

Ken Cuccinelli has taken the position that the Federal Government should not be involved in the business of what individual states do; particularly Virginia.  He wrote an editorial piece in the Washington Post on Sunday, expressing this very point that would keep the federal government from restricting lawsuits, or enacting lawsuit caps, or requiring states to ignore their own laws, in favor of the Federal Government.

Here’s a short version of what he said about such Federal action. Specifically, he was also addressing Senate Bill 197 that attempts to cap damages in medical malpractice cases. “This legislation expands federal power, tramples states’ rights and violates the Constitution. If it were ever signed into law, by a Republican or Democratic president, I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law.”

Such expressed opinion goes against many in the Republican Party. In keeping with that thought, he disagrees with Democrats because he blasted the EPA, in testimony before a US  House Committee. He believes that upcoming air quality regulations would have a devastating impact on Virginia.

The EPA has regulations in effect to take place soon, that would require coal-fired plants to make equipment changes and retrofitting of their facilities,  to decrease  pollution. He believes that such restrictions will put such burdens on the coal companies that it will cause business closings and cost jobs.

OK, I know I’m getting carried away with politics. The quick point is that, even though there may be evidence that the EPA is trying to restrict mercury, arsenic, dioxin and other pollutants, Cuccinelli is again saying, “Federal Government… Stay out, let’s States take care of this”.  Just something to think about.

Now, if you’ve made it to the bottom, here is pic o’ day… Feeling left out:

Lawyer Acts Like the Cows



   I always laugh when I see the Chic-Fil-A ads. First, cows make me laugh. When I was on the farm and the cow was trying to kick me;  Well, that wasn’t so funny. Plus, why do cows get out of bed so early?  Now, I seem far removed from that swinging hoof.

     Second, the ads are funny because cows are supposedly “holding meetings” and standing on billboards, in an attempt to encourage us to buy more chicken. It’s self-serving because the cows don’t want you to eat beef. We don’t even mind it. Self-serving seems funny. Now, you’ll see why those cow ads came to mind. Plus, I’d like to work those cows into my blogs on a regular basis anyway.

      State Senator John DeFrancisco (R-NY) is a lawyer. In the New York legislature, he has recently introduced a bill that would increase the percentage of legal fees that a lawyer can charge in medical malpractice cases. Can you hear “mooing in the background?

     Currently, the New York law caps what lawyers can charge, based on the total amount of recovery in a malpractice case. Right now, a lawyer can receive 30% of the first $500k recovery and then the fee goes down, to about 10% thereafter.

     The proper argument is that the legislature should not cap or impact a contract between individuals. Or, argue that if you are going to limit what a plaintiff’s lawyer can charge, then the legislature should limit what defense lawyer can bill per hour. Fair is fair. You can rest assured that the Big Defense Firms would not make that trade.

     Instead, the current legislation has potentially caused individuals some difficulty in finding representation. It may not have been portrayed that way but I’m sure there were some Medical Lobbyists who got a good laugh out of this legislation.

     Those are the good arguments. Conversely, no one feels sorry for lawyers who complain that they are not earning enough. Plus, a legislator who is a lawyer, is not the most effective communicator for this kind of bill. Instead, this story will be portrayed as “Lawyer wants more money”. 

     It’s ok to have cows selling chicken. I just think that there might have been a better spokesman for the cause on legal fees. Maybe a non-lawyer who was hurt by bad medicine.  Anyway, all of a sudden, I have a real hunger for one of those Chic-Fil-A sandwiches. I hope they don’t raise the prices!

“Ask Your Doctor” Ads

     The other night, I watched the national  Evening News. Normally, I’m either not home,  or my wife and I are eating without the TV  turned on;  Or, My wife and I are eating dinner with Tony Kornheiser and Michael Wilbon. What that really means is that we are watching a  version of “Pardon the Interruption”,  “DVR’d” from ESPN. 

     Watching the national Evening News is surprising, during the advertising breaks. It seems like the commercials are endless ads for some kind of medication. I guess they believe in the proposition that if Big Pharma tells us about a problem, then they have  a pill to fix it.

     There might be an advertisment that deals with poor sleeping habits. Then, they tell you how they can fix that, to make you feel like a butterfly is floating past you. Do we really want butterflies hanging around our pillows?

     The next ad might have something to do with “jumpy legs”. Or, a guy has heart or cholesterol problems and he is always in black and white, until he takes one of these amazing pills and life is back in color again…. riding a bike with family.

     They always have the depression ads. The person with furrowed brow is magically out in the garden or smiling at the world, after taking that special medication. Maybe there’s depression after learning that you have to take a pill for jumpy legs, so you can have butterflies zipping around the bedroom, while you sleep with that satisfied look of “making sure that you have 8 hours to sleep”  when you take the pill.

     In my practice, I regularly rely on what doctors say or put in their notes. The standard for evidence is “more probable than not”.  The Hippocratic oath includes the words “First, do no harm”. For that reason, you would think that doctors would want to be advocates for their patients in testimony and in the medical records.

     Some doctors will come right out and say that they don’t want to be involved in an accident case. In fact, they will charge such an exorbitant amount to meet, have their deposition taken or even come to court, that it sometimes becomes financially prohibitive. They seem to forget that the client has to ultimately pay for their testimony. 

     At a recent seminar, a jury psychologist was saying that nurses are now considered to be much more credible and reliable than doctors. Because of these surveys, they were encouraging us to call nurses to testify in our cases.

     I guess the summary of all these “ask your doctor” ads  has led me to believe that the public might see these ads and starts linking Big Pharma with doctors. If you start to believe that doctors are in the pocket of Big Business, no wonder we begin to believe in the nursing profession as more dependable.

     Personally, I’m glad that I have doctors that I can depend on. In fact, I never feel as though I have to ask them about a prescription that I just saw on TV. Maybe that is a good test as to whether you are already receiving good medical care. I don’t have to walk in with some  prescription name, written down on a piece of paper, to ask my doctor whether it’s right for me.  Otherwise, maybe the ads should say, “Ask your nurse if your doctor is right for you”.

South Carolina Tort Reform

Several bills were introduced in  this South Carolina legislative session, that would put limits on lawsuits. Today, reported that discussion on one of these bills was delayed. This website is from the largest paper in the state of South Carolina.  Here's what I read into the newspaper account as well as the legislation at hand.

The South Carolina Judiciary panel canceled a hearing on a bill (SB 350)  that seeks to broaden the  medical malpractice limits that were put into place in 2005. At the time, the basis for such caps and limitations related to the desire of encouraging reforms in medicine. Now, these same tort reformers want to extend these same limits to all civil actions. That's the boring legalese. Let's get to the meat of what it means.

Pain and suffering awards would be limited to 1 million. Punishment (Punitive) damages against large employers could be no more than three times the actual amount of the actual damage verdict or $250,000, whichever is greater.

 It's easy to see why the organization that calls itself the South Carolina Civil Justice Coalition, would be pushing for this legislation.  They claim an agenda to oppose legislation that increases litigation and costs to the business community and oppose legislation that is harmful to the legal climate.

 What that means is that there has to be limits as to how much a business should pay for harming someone, because paying money is bad for business. I even posted the website for this organization because I think that the more light that is shined on them, the more that sensibility will prevail regarding their actions against individuals.

This kind of legislation gets me keyed up. They claim that their organization is trying to make a difference in the climate of economic development deals within the state. I see it as putting profits over safety and knowing that, as a business, my exposure is limited.

If you tell Bill Gates or Warren Buffett that they will only have to pay one dollar, for every person they kill in South Carolina, you know that such legislation won't impact their conduct. That's because as indivduals, they know right and wrong and don't need a financial limitation for their wrongs.

Businesses and Publicly traded companies are tasked with one purpose: To turn a profit. They owe that to their shareholders. This legislation is basically saying, "Come to South Carolina because you won't have to fully pay for your harms".

One final note. If you click on the original article, you can scroll down to read the comments. One is supportive of the malpractice caps because "Doctors aren't perfect but they are more qualified than you and I to treat the sick people". How can you argue with that?

Another comment indicates that for the jury system to work it "needs to be made up of professionals". Another indicates that such legislation should be considered because "the jury system is broken". One poster wisely asks the question of "why hasn't my health insurance premiums gone down since this 2005 law?" I guess we need to ask that question to the Civil Justice Coalition. Of course, there is nothing in their website about helping the individual.   


When Opinion Ignores Reality

While sitting in the doctor's office today, I was reading the USA Today opinion page. It's amazing what sometimes becomes interesting when you are just waiting.

The opinion page is like a letter to the editor. The one that caught my attention was dealing with the recent health care bill. The author reminded that former Senator, John Edwards, had been named one of the biggest political losers of 2009. He recommended that Edwards should consider going back into the lucrative practice of law, since the health care bill had not adopted any tort reform measures regarding medical malpractice. I am sugarcoating some of the author's venom.

 This takes us back to the supposed purpose of malpractice reforms to be included in the health care bill. the reasoning was that by reducing doctor liability, it would reduce testing and "defensive medicine", which in turn would reduce medical costs.

For a blog, it would be both boring and impossible to argue logic for that position. Instead, I'll simply remind you of the argument for restricting liability for drug companies. At that time, bureaucrats and politicians were saying that drug companies needed protection from trial lawyers. Otherwise, if you did not enact caps, limits and immunity, drug companies would no longer have incentives to produce helpful medication. And, good drugs would not make it to market. As such, without these limits, would all suffer.

 Fortunately, for the safety of patients, no such immunity and limits was passed. In fact, some were even lifted. Yesterday, an interesting statistic was provided by the FDA. The number of new drugs that were cleared for market by the FDA, kept pace with 2008. This is statistical proof that the push for safety in early warnings and citations to drug companies has not affected the pipeline of medications to market.

The FDA also approved drugs known as a "first-of-kind", which shows no hesitation of drug companies in pushing their drugs forward. Again, without government intervention and the silly reasoning of politicians, the free enterprise is at work rewarding companies that produce medications safely, with appropriate warnings. Of course, drug companies don't like the extra hoops that they have to go through. So, I expect that they will continue with their illogical tort reform and their large political donations to the receptive politicians.  

Loser Really Loses

It seems a paradox to include issues about doctor mistakes in the national health care bill. However, apparently legislators don't see the oddity of this. As such, one such inclusion, in the potential health care legislation, involves a proposal co-sponsored by Senators Saxby Chambliss (R-Ga.) and Lindsay Graham (R-SC).

The Senators have proposed a restrictive "loser pays" provision. In their bill, when a patient brings an action against a doctor and loses, then the patient would also be responsible for all legal fees and costs that were spent by the doctor, to defend himself.

On it's face, some probably would get this far in my blog and say "So?". Well, you'll note that it doesn't go both ways. If you're going to make a patient pay a doctors attorney fees and cost, if they lose, why not make the doctor pay the patient's, if the case has to go to trial and the doctor loses . Why can't "loser pay" go both ways.

The justification for such legislation is to  (get ready for the buzzwords) stop the "frivolous lawsuits". The legislation also includes a provision, according to the Atlanta Journal-Constitution,  that would require both parties to enter non-binding arbitration to try to resolve disagreements.

I have a few thoughts on this legislation that might differ from some other trial lawyers. First, I do think that some claims brought against doctors have no merit and could be deemed as frivolous. Usually, in my experience, it involves some young lawyer who thinks that just because there is a bad result, it must mean that there should be some payment by the doctor. Some states have cured this by requiring that an expert opinion on the standard of care be filed or, or at least, certified to exist, before a malpractice suit can be brought.

Second, I think that non-binding arbitration can be a huge waste of time, requiring the plaintiff to spend, to put on their case and just added costs to the whole procedure, while the defendant completely ignores any arbitration finding. However, in South Carolina, some counties have mandatory mediation. It causes the parties to get together with a neutral individual and results in many settlements. Sometimes it even gives the plaintiff a sense of having their day in Court.

 Finally, interestingly enough, I asked a legislator, a few years back, to introduce a "loser pay" bill in the Virginia General Assembly. It was the same as what has already been enacted as law in North Carolina. There was such opposition to it that it didn't make it out of committee.

I guess this legislation has to be looked as to whether or not it significantly impacts access to the courthouse, by those who don't have the resources anyway, and are then scared off by the one sided requirement of paying. In a just world, those responsible are always held accountable. Unfortunately, no one really believes such is happening. 

Several years ago, I tried a malpractice case in South Carolina. The jury stayed out 6 hours and then came back with a defense verdict. Two of the jurors were troubled by the result because they felt that malpractice had been committed. However, they said that, in the jury room, the jurors were all concerned about the possibility that doctors would leave the state, if verdicts were entered against them. These jurors believed the propaganda of tort reformers. In that instance, my 80 year old client would have been responsible for those defense costs.   

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