Boston Personal Injury Lawyer - Medical Malpractice - Most Commented

Fake Studies for Medical Malpractice Defense

Ken Margolin — Mon, 09 Apr 2007 11:20:00 GMT

Today's Boston Globe carried an article with the title, "Bed sores aren't always a sign of negligent care." Having written blogs on this site, suggesting that severe pressures sores are usually caused by nursing home negligence, I read the Globe piece carefully (the law firm of Stark & Stark, has an excellent blog on the subject). My radar went up when I read the sentence that
"[T[he sentiment [that all serious bed sores are avoidable with proper care] was so strong that numerous nursing homes paid large legal settlements to families of patients who developed the sores...." The implication was that the settlements should not have been paid, and that the cases should have been defended based upon the "new findings" of some researches that "[A]t least some pressure ulcers are unavoidable." Those findings may be true, given the broad scope of "at least some....," but I will not be surprised if the studies commented upon in the Globe article, appear before juries considering nursing home negligent cases involving bed sores. I will be equally unsurprised to see the authors of these studies, retained as testifying experts, by nursing home defendants.

"Don't believe everything you read," has always been good advice. That may be especially true if an article in a prestigious medical journal, reads as if it were designed for insurance lawyers defending medical malpractice defendants - it may have been. Many members of the plaintiffs' bar have long suspected that articles and studies have been crafted to aid defendants in cerebral palsy medical malpractice cases, and cases of erb's palsy due to shoulder dystocia caused by negligent delivery. I encountered the phenomenon personally in a case I handled involving a neurologically impaired infant. When the defense listed their experts, there was the name of a doctor renowned for writing a plethora of articles linking various birth traumas to a significantly reduced life span. He was going to testify that my client would not live long, and that costs of care would be far less than we claimed. When I checked this man out further, it appeared that he had been often exposed as a well-credentialed shill for medmal insurers, and that he rode his articles to a lucrative career in defense testimony (he never testified in my case). The practice of writing articles designed to aid malpractice defendants, rather than to advance science, is cynical and unethical. Plaintiffs' lawyers need to be familiar with the peer-reviewed literature relevant to their case, and to be wary of articles written with medmal defendants in mind.

Originally posted at InjuryBoard by Ken Margolin

Solutions to the Medication Error Crisis

Ken Margolin — Mon, 09 Oct 2006 12:48:41 GMT

Medication errors injure an estimated 1.5 million Americans each year. That staggering number is reported in studies conducted by the medical profession and pharmaceutical industries themselves. While there is no single cure for this terrible problem, borne ironically, of the tools used to cure disease, the steps to be taken to greatly reduce the problem have been understood for more than 10 years.

Better training of non-physician hospital personnel who mix, deliver, and administer drugs, is crucial. In order to cut costs, hospital pharmacy technicians who may be paid less than a pizza delivery driver, often have the responsibility to follow written directions and make the necessary measurements necessary to mix or dilute medications. Even in the age of computers, poor doctors' handwriting is the source of many errors. Another major cause of errors is the simple misplacement of a decimal point. Computer cross-checking of safe dosage ranges, generally, and for a particular patient, can minimize decimal point errors. Absent computers, the simple expediency of using zeros when necessary for clarity, can help; for example, 0.25 milligrams, rather than .25, which might be carelessly misread as 2.5.
JCAHO, the hospital industry's accreditation organization, has identified the following as leading causes of serious medication errors: Misread Prescription; drug taken from wrong vial; Milligrams (mg) in prescription read by health care worker preparing or administering the medication, as grams (g); improper dilution (or failure to dilute) adult strength drug administered to an infant; prescription misread because of poor handwriting - failure to call physician for clarification; wrong tube (from wall oxygen supply) connected to Import; Oxygen, rather than intended IV solution pumped into patient; zeros inadvertently added to intended prescription strength, for example, 12 mL read as 120 mL.
Some of the solutions being implemented by pharmaceutical, hospital, and medical professionals, to solve the problem are: (1) Improved training and education. Each pharmacist, physician, nurse, and pharmacy technician involved in the medication process - from production in the pharmacy to administration to the patient - is competent to perform the tasks he or she is assigned to perform; (2) Effective use of computers. Computers will be increasingly used to record patients' prescriptions, drug allergies, and other pertinent information, and to alert health care providers when a prescription entered into the system for a given patient, appears inappropriate; (3) Unit dosing. Whenever possible, drugs should be individually packaged for specific patients, rather than prepared from stocks of medications, Primary use of unit dosing has radically lessened medication errors in some hospitals; (4) Improved analysis. Leaders in the field of medication error have realized that the causes of errors must be understood if the numbers of errors are to be significantly reduced. To that end, hospitals are being encouraged to clearly define what constitutes a medication error, to require that all errors be reported on standardized forms, and to analyze the underlying, systemic deficiency that caused or permitted the error to occur; (5) Collaboration with drug manufacturers. Many serious medication errors can be traced to labeling problems, such as labels cluttered with too much information, inadequate or obscured warnings, brand names of drugs for different purposes that sound alike. Representatives of the pharmaceutical industry and medical professions must collaborate on an on-going basis to identify and resolve potential problems before they contribute to a patient death or serious injury; (6) Recognizing medication error as a systems problem. Catastrophic medication errors are almost always due to systemic failures. While nurses and pharmacy technicians often commit specific errors, ultimate responsibility usually lies with the Pharmacy Chief or other hospital administrators who failed to devise adequate systems of error-prevention or who failed to adequately train and educate their personnel. The committment must be to insure that the number of serious medication errors in 2015 is far less than steadily shocking numbers from 1995 through the present.

Originally posted at InjuryBoard by Ken Margolin

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