Boston Personal Injury Lawyer - Medical Malpractice

Charitable Immunity is Unjust

Ken Margolin — Wed, 19 Sep 2007 07:00:00 GMT

Protecting charitable organizations from liability for the negligence of the organization or its employees, may sound noble, but is in fact, unfair. The immunity doesn't really accomplish its goals, and insures that employees of an organization involved in a personal injury lawsuit, will be sued instead of the organization. Here's the way it works in Massachusetts. By statute, M.G.L. c. 231, Â§85K, the liability of non-profit, tax-exempt corporations, for personal injury caused by their negligence, is limited to $20,000. The doctrine never made much sense, since even organizations providing noble services, should be responsible for their actions when they harm others. Now that many "charitable" organizations are economic behemoths, such as major universities and hospitals, with CEOs earning seven figure incomes, the doctrine serves only to harm legitimate plaintiffs and to provide a windfall for the insurance industry. Virtually all viable non-profit organizations carry liability insurance. There is no logical reason why that insurance can't cover the organization as well as its officials and employees, thus protecting the charitable corporation and victims of its corporate negligence.

The charitable immunity doctrine applies only to the organization, not its officials and employees, This guarantees that in a serious personal injury case, the employees will be sued, and the culpable institution will either not be sued or dropped from the case before trial. Juries don't learn of the tort cap, and the risk is too large that they will render a sympathetic defendants' verdict on behalf of the employees and nail the organization, never realizing that only $20,000 can be collected. The doctrine is at its most unjust when there is institutional negligence - for example, inadequate safety policies and procedures - but no readily identifiable, negligent employee. A risk is created that a jury hearing such a case, will let the employee off the hook, all the while wondering why the errant corporation was not made a defendant. Charitable corporations, no less than for-profit corporations, owe a duty of reasonable conduct to the public, and ought to procure sufficient insurance in case their negligence causes an innocent person serious harm. The Massachusetts legislature needs to buck the pressure from the insurance lobby, and abolish the antiquated and unfair doctrine of charitable immunity.

Originally posted at InjuryBoard by Ken Margolin

Deadly Medication Errors

Ken Margolin — Fri, 14 Sep 2007 18:00:00 GMT

The problem of medication errors has by now been well-reviewed, and efforts to minimize such errors are underway in hospitals and doctors' offices across the country. Nevertheless, the problem of medication errors has proven to be a very stubborn one. In his groundbreaking book, "To Err is Human," Lucien Leape, M.D., estimated that medication errors caused approximately 98,000 deaths per year. Given that the 40,000 +/- highway deaths each year, is often described as "carnage" on the roads, 98,000 is a sobering number.

A study reported earlier this year reviewed medication errors made on patients undergoing surgery. Astoundingly, the study estimated that 5% of adults and 12% of children suffered harm in surgery-related medication errors. Painkilling medications and antibiotics were responsible for a significant share of serious harm. As is the case in other areas of medical negligence, failures of communication caused many of the problems. The danger was particularly acute when various medical teams not working on the patient at the same time, were required to communicate effectively. Examples given were hand offs of patients from the preoperative team to the operating room team, and from the operating room to nurses in the recovery room or on the ward. These failures of medical communication will continue until the notion of patient treatment as a true team effort, is taken seriously and implemented across disciplines and hospital staffs and departments.

For more information on this subject matter, please refer to our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ken Margolin

A Medical Malpractice Claim Lost

Ken Margolin — Tue, 21 Aug 2007 15:15:00 GMT

A couple of weeks ago, a Suffolk County Superior Court jury in Boston, rejected the claim of former New England Patriots offensive coordinator, Charlie Weis, that doctors botched his gastric bypass surgery. The defense verdict came at the end of the second trial of the case. The first jury hearing the case was deadlocked, leading to a mistrial. Weis had claimed that his surgeons allowed internal bleeding to continue for many hours, causing nerve damage. The loss by a popular, former local sports figure, illuminates some hard truths about medical malpractice cases.

The number one reality of medical malpractice cases for plaintiffs and their lawyers, is that they are difficult to win. Many jurors begin with a pro-doctor bias and suspicion of plaintiffs' motives. Bias aside, most jurors will respect the judge's "burden of persuasion" instruction, and weigh any doubts against the plaintiff. Given the complexity of many medical malpractice cases, a good defense lawyer can often create doubt. Another factor may have hurt Mr. Weis. Although he testified to ongoing pain and mobility problems (the operation took place in 2002), his injuries were not catastrophic. Any medical malpractice case that goes to trial is somewhat of a production. Some jurors will ask themselves why the plaintiff is going to the trouble if he has largely recovered from the alleged malpractice.

I wondered if there may have been an anti-obesity factor; i.e., people shouldn't become so fat that they need bypass surgery. That may have been present, but as a blog by Fayetteville Injury Board member, Attorney Brent Adams, illustrates, juries can return sizeable plaintiff's verdicts in gastric bypass cases. I never like reading about defense verdicts in medical malpractice cases. They are constant reminders, though, that plaintiffs' attorneys must be rigorous in their selection of medmal cases.

For more information on this subject matter, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ken Margolin

The Power of Exhibits

Ken Margolin — Mon, 20 Aug 2007 11:15:00 GMT

I wonder if anyone has ever calculated the number of words per hour spoken during the average jury trial. The right words, used the right way, can evoke the most powerful of images, associations, and emotions. Words can also drone on and become little more than background noise to the listener. The lawyer trying a case involving catastrophic personal injury, has a challenge. He may need to educate the jury on a scientific topic, for example accident reconstruction. He may need to make sure they understand the scope of the plaintiff's economic loss.

Accomplishing the necessary jury education and persuasion in a complex personal injury trial, is not possible with words alone. On the other hand, too much use of exhibits could turn a trial into a circus, detracting from the seriousness of the matter at hand. The plaintiff's lawyer needs to balance words with exhibits, simple exhibits with more elaborate displays. Basic blowups of pages of medical records can be very useful, as can enlarged color photographs. In a medical malpractice case in which a timeline is important, the attorney can hire companies that will create a visually engaging horizontal chronology, based on medical records entries. In a construction accident case, an attorney may have a detailed model built, replicating the scene where his client was hurt. Tangible things can work better in some cases, than photographs.

Sometimes, nothing but the actual item in question, or an exact duplicate, will do. As I write this piece, a colleague of mine is trying a case on behalf of a restaurant worker severely burned when a heavy cauldron tipped over too far, emptying its load of scalding water on the man. At considerable expense and effort, my colleague purchased a duplicate of the cauldron in question and had it delivered, bolted to planks, to the 5th floor courtroom. I don't know yet if he'll win, but if he does, you can bet that the kettle will have played a major role. Computer animations of events can be useful, provided the judge is convinced that they are sufficiently accurate to be allowed into evidence, and the jury believes they are fair representations of events. The use of exhibits is vital and their variety is as limitless as an attorney's imagination.

Originally posted at InjuryBoard by Ken Margolin

Wrong Site Surgeries

Ken Margolin — Mon, 06 Aug 2007 16:10:00 GMT

An article in Saturday's Boston Globe illustrated the gap that sometimes exists between written procedures and implementation. The article also highlighted the ongoing danger from surgeries on the wrong part of a patient's body. Five hundred fifty-two cases of wrong-site surgery have been reported by American hospitals since 1995; there are undoubtedly many unreported cases.

The incident covered in the Globe story happened at Rhode Island Hospital. An 86 year old man was rushed into the operating room for emergency surgery to relieve a bleed on the left side of his brain. The surgeon operated on the right side, before correcting his mistake and addressing the left side bleed. The article did not reveal how much time was lost due to the doctor's error, or whether the patient, who is hospitalized in stable condition, was permanently harmed. According to the Globe, this was the second time this year alone, that a neurosurgeon at Rhode Island Hospital has operated on the wrong side of the patient's head.

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has promulgated staightforward guidelines to prevent wrong-site surgeries. Even the best of guidelines are ineffective, however, if they are not followed. Patients with sufficient capability should be very insistent that protective steps have been taken to insure that once they are under anesthesia, the correct surgical procedure at the intended location, will take place.

Originally posted at InjuryBoard by Ken Margolin

Failure to Communicate can be Deadly

Ken Margolin — Thu, 12 Jul 2007 09:00:00 GMT

Imagine a plane crash in which the co-pilot knew of another plane on a collision course, but decided not to tell the pilot, figuring he'd get the information on his own. Imagine a firefighter knowing a roof is about to collapse, but failing to warn his colleagues because he thought his colleagues were highly skilled and the signs of impending collapse were obvious. Unthinkable? Of course. Yet, doctors treating the same patient for the same condition often fail to communicate and claim to be justified in their intentional withholding of vital information from their colleagues.

The internist refers a patient with deteriorating neurological symptoms to a neurologist, but neglects to convey the information of his patient's decline because - hey - she's the expert. When the expert fails to obtain the information that the internist possessed, on her own, the patient suffers. An anesthesiologist and surgeon fail to communicate prior to surgery, resulting in an operating room disaster because neither know exactly what the other one was doing. There is no excuse for such medical failures of communication. Too many doctors see their roles as reflecting the line from Tom Lehrer's song Wernher Von Braun, "... it's not my department ...." Communication of vital patient information to other treating physicians is every doctor's department. The cost in time and money is near zero. The risk of neglect is the patient's life and health.

Originally posted at InjuryBoard by Ken Margolin

Victims of Medical Malpractice Face a Hard Fight

Ken Margolin — Wed, 11 Jul 2007 11:45:00 GMT

This week's Massachusetts Lawyers Weekly newspaper reported a defendant's verdict in a sad case. The plaintiff had suffered a massive stroke leaving him paralyzed on half of his body and with other terrible deficits. The allegation was that the stroke was caused due to mismanagement of lung surgery following pneumonia. The case was tried by an attorney considered to be a very fine plaintiff's lawyer, and yet despite excellent representation and horrific damages, the jury awarded the plaintiff nothing.

The case highlights a difficult reality - doctors in Massachusetts win approximately 90% of cases that go to trial - and if the insurer thinks that they will win, there will be no pre-trial settlement. I don't know all the details of the reported case, so can't say whether the jury's decision was a fair one. In general, though, plaintiffs must have more than catastrophic injuries to prevail in a medical malpractice case. The liability facts must be strong. Cases involving lack of communication between concurrent caregivers, admitted medication errors, failure to respond to disturbing symptoms, and alteration of records, often give plaintiffs the best chance for adequate settlements or verdicts.

Originally posted at InjuryBoard by Ken Margolin

Dropped Clues Lead to Medical Malpractice and Patient Death

Ken Margolin — Wed, 23 May 2007 07:00:00 GMT

A doctor can no more afford to ignore clues provided by his patient, than a homicide detective can fail to dust the crime scene for fingerprints. The best internists would undoubtedly make great detectives. When the body provides clues that something is not working properly, the doctor must follow the clues until he diagnoses the cause of the troubling symptom.

In fairness to physicians, the task is not always as easy as it might sound. Symptoms that can be caused by a passing bug, may also be caused by a serious illness. Doctors who truly fail their patients, though, usually ignore an alarming symptom, multiple suspicious symptoms, or recurrent or persistent symptoms. A case reported in this week's Massachusetts Lawyers Weekly, illustrates the point. A patient died of metastatic colon cancer, despite complaining of blood in his stool for six years. By the time a colonoscopy was conducted, the tumor had become large and untreatable. Colon cancers are usually slow-growing, and eminently treatable if diagnosed soon enough. While colonoscopies for screening purposes are now called for only once every ten years, a prompt colonoscopy may be required if a patient presents to his doctor with unexplained symptoms that could be caused by a tumor in the colon.

Originally posted at InjuryBoard by Ken Margolin

Caesaren Section Issues

Ken Margolin — Mon, 21 May 2007 07:00:00 GMT

Caesaren sections, commonly termed "C-sections," have been around for centuries. There are reports of C-sections being performed as early as the 13th century. Early C-sections were performed to remove babies from the wombs of mothers who had died during childbirth. Modern Caesaren sections, of course, are a great life-saver for mothers as well as babies. As with all advances in medicine, C-sections create their own risks and quandries.

C-sections are indicated in many instances when the natural birth processes are not progressing smoothly. A partial list of indications for a caesarean section, would include cephalopelvic disproportion (baby's head too large to progress through pelvis), fetal or maternal distress from any of a variety of causes, breech or transverse position of the fetus, cord prolapse, uterine rupture. In recent years, obstetricians have largely agreed that C-sections should not be done routinely, for the mother's convenience, or for cases of ordinary difficulty in the birth process.

Nevertheless, if a mother or infant is in trouble because labor is not progressing or induction of labor or attempted instrumental delivery have failed, the obstetrician may be obligated to perform a C-section. Many significant verdicts and settlements in birth negligence cases, have resulted from the obstetrician's failure to perform a Caesaren section, when a C-section was indicated to protect the mother or baby. As with every medical procedure, it must be performed in a competent manner. A multi-million dollar settlement was reported in last week's Massachusetts Lawyers Weekly, when the obstetrician and anesthelogist involved in a C-section, failed to realize that the mother was bleeding from ruptured uterine blood vessels. By the time the bleeding was recognized and the source of the bleeding located and repaired, the mother had suffered irreversible brain damage because her blood pressure dropped below levels necessary to carry sufficient oxygen to the brain.

Failure of communication between the medical team was involved in this woman's tragedy, as is often the case. A nurse and anesthesiologist were treating the woman for shortness of breath due to dropping blood pressure, but neither of them notified the obstetrician of the problem for several hours. Lack of communication amongst health professionals treating the same patient, is a recurring theme in this blog site, and will continue to be, as failures of communication are responsible for many instances of medical negligence causing death and serious injury.

Originally posted at InjuryBoard by Ken Margolin

Communication Breakdown Results in Death - Medical Malpractice Settlement

Ken Margolin — Wed, 09 May 2007 09:00:00 GMT

Failures to communicate continue to bedevil the medical profession. Patient deaths and injuries due to communication breakdowns are especially tragic, because the preventative measure, was often as simple as picking up a telephone or sending a note. In an era of multi-million dollar technology and advanced bioscience, person-to-person communication remains a cornerstone of good medical care. Communication failures lead annually to thousands of medication errors and other forms of medical malpractice.

The doctors treating a western Massachusetts woman, did not communicate, and their patient died as a result. After a small mass was discovered in the decedent's stomach during a routine gynecological exam in 1995, she went to a surgeon, who removed it and sent it to the pathology laboratory for analysis. The tumor was found to be malignant, a result that was promptly sent to the woman's surgeon and to her internist. In an appalling case of "it's not my department," neither doctor notified their patient of the potentially lethal malignancy that they knew, but she did not know, was in her body.

For the next four years, the woman made multiple visits to her internist for routine medical reasons. He never mentioned that she had cancer, assuming that the surgeon would have told her. The surgeon decided that it was the internist's responsibility to notify the patient, so he filed the report away, and said nothing. The woman only learned that she had cancer, in 1999, when another doctor, reviewing her file, told her about it. The cancer was finally treated, but by 1999, the cancer had metastasized, resulting in the woman's death in 2005, from the tumor that had been determined to be cancerous in 1995. Although the defense contended that even a prompt diagnosis in 1995 would not have changed the outcome, the internist settled with the patient during trial, and the jury awarded a substantial verdict against the surgeon.

Almost as disgraceful as the neglect of the doctors, was the decision of their malpractice insurer to force the case to trial. The insurance industry loves to complain about out of control costs related to medical malpractice. A large cost results when insurance companies force cases to trial on causation defenses, even in the face of appalling medical negligence. The case was reported in last week's Massachusetts Lawyers Weekly newspaper.

Originally posted at InjuryBoard by Ken Margolin