Illinois Medical Malpractice Blog

The Chamber of Commerce & Protecting Consumer Rights

Wed, 19 Jun 2013 07:18:15 -0600

Litigation is an inherently contentious process, because it involves two sides with adverse interests. One party claims that a harm was done and demands redress from the other. However, it is a mistake to assume that all such matters in the civil justice system must therefore be filled with animosity, extreme disagreement, and prolonged feuding over every detail. Instead, when used fairly and reasonably, the process can be used to facilitate fair agreements involving responsibility and accountability.

In other words, in the medical malpractice context, it is not automatically evident that a medical malpractice lawsuit must end with each side engaged in a dragged-down, drawn-out courtroom fight. The sides can view the evidence fairly and reach agreement naturally with both sides satisfied with the outcome.

The same can be said for politics. While today it may seem as if political disagreements inherently involve each side stonewalling at every turn, it does not have to be that way. In reality, each side can share their perspective, be honest about the fairness of the other side’s argument, and make progress.

Chamber of Commerce: Digging In Their Heels
Unfortunately, over the years many lobbying interests have become more and more entrenched (and emboldened), becoming unwilling to compromise on nearly anything. This is one of the main reasons why we see different advocacy groups trying to push through more and more laws which limit the rights of consumers of every stripe (including medical patients) from holding wrongdoers accountable for their conduct.

In the medical errors context, these “tort reform” measures are certainly not new, but the battle is far from over. Unlike other issues where genuine middle ground might be sought, in most cases these tort reform laws epitomize the significant overreach by large business interests to simply make sure the rules apply differently to them than they do other members of the community.

A recent New York Times profile of the current U.S. Chamber of Commerce President discusses this descent into a more and more politicized and uncompromising attitude taken by big business groups on these issues in recent years.

The President of the Chamber, Thomas Donohue, has been at the helm for sixteen years. He admits that right away when he took the job “he vowed to make trouble for traditional adversaries like trial lawyers, environmentalists, and union leaders.” In other words, he moved the Chamber into more open political warfare with those entities which traditionally advocate for those without significant money or ability to advocate for themselves.

Sadly, this often means pushing for any number of legislative changes that enrich the largest companies at the expense of complete health, safety, and fairness for individuals--including pushing for tort reforms laws. In recent years, the Chamber has moved more and more into partisan politics, making big push in the last election to push for victories for Republican candidates in the U.S. Senate. They were unsuccessful in that effort.

All of this federal advocacy work on the Chamber’s part is big business. Donohue noted that it required $5 million a week to run the group. Most of that is funded by several large corporations. However, because talking about “small business” is more popular, the Chamber usually tries to downplay its corporate donors and position itself as an advocate for small business.

One can only hope that in the years to come, this unnecessarily aggressive, partisan attitude will wane, allowing consumers and everyday Americans a reprieve from the continued assault on their interests.

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New Research: Malpractice Lawsuits Critical for Patient Safety

High Court Rules on “Loss of Chance” Medical Malpractice Claims

New Research: Malpractice Lawsuits Critical for Patient Safety

Mon, 17 Jun 2013 14:06:31 -0600

Accountability breeds improvement. That basic mantra has long-been shown true in many different kinds of settings. Focusing on quality and care in any job depends on the consequences of providing inadequate services. It does not take much deep thinking to realize that quality may be sacrificed if mistakes do not have repercussions.

Of course, the quality of medical care is one of the textbook examples of this idea. When doctors, nurses, and others have little to lose for providing substandard care, then the incentives to improve patient safety is minimal. Conversely, when patients have fair access to the judicial system to file medical malpractice lawsuit when harmed by negligence, then all those involved in the caregiving industry have obvious incentives to take steps to minimize errors.

That principle was verified yet again in recent research soon to be published in the NYU Law Review.

Med Mal Lawsuits - More than Money
As discussed in a recent HRMR Newsletter, the study was conducted by legal academics, and is to be published in an article entitled, ‘A Dose of Reality for Medical Malpractice Reform.”

The author explains that the research sought to examine the idea pushed by some pursuing tort reform legislation. The claim: med mal lawsuits were detrimental to patient safety efforts because the lawsuit encouraged less openness and honesty about medical errors.

To address the question, the researcher conducted more than two dozen interview with those involved in the process, like risk managers, and patient safety officers at hospitals. In addition, over 400 of the same individuals participated in an email survey, with ten more follow up interviews with survey respondents.

What were the findings?

The article summary notes that trends are clearly headed in the direction of more openness and honesty regarding patient safety information. Contrary to the fears of tort reformers, the researcher found that medical professionals are less and less likely to avoid honest discussions because of malpractice fears.

Interestingly, the author found that the trend may be connected to state laws. But those laws had nothing to do with limiting patient’s access to the judicial system (tort reform laws). Instead, new laws requiring hospitals to expand mandatory reporting of errors have contributed to the shift.

In fact, med mal lawsuits themselves are becoming critical data points for understanding medical errors. The professor explained, “Not only did the hospitals in my study report integrating information from lawsuits into their patient safety efforts, they also reported that lawsuits revealed new and useful information about incidents of medical error,”

The bottom line: Medical malpractice lawsuits play a critical role in improving patient safety. Far from being an unfair burden, this litigation is vital to tracking errors and ensuring changes are made to improve the system. After all, if medical facilities wish to minimize their liability there is one straightforward way to do so: minimize their harmful errors.

For help understanding your legal options in Illinois following a medical error or preventable adverse outcome, please contact the attorneys at our firm today.

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Hospital Rules on “Loss of Chance” Medical Case

The Role of Experts in Medical Malpractice Cases

High Court Rules on “Loss of Chance” Medical Malpractice Claims

Fri, 14 Jun 2013 06:43:27 -0600

One of the most contentious legal issues facing courts in medical malpractice cases over the years has to do with “loss chance.”

Here’s the situation: To file a lawsuit and recover on a claim, a patient must show that the negligence on the part of the defendant actually caused harm. Negligence alone is not enough. In other words, a doctor’s failure to wash their hands before a procedure may be negligent, but if it cannot be shown that the dirty hands caused actual problems for the patient, then there can be no recovery.

But what happens when the “harm” is simply a lowered chance of a positive outcome down the road? This is especially common with mistakes like delayed diagnosis. If a patient has cancer, a doctor may misread test result and fail to notice the problem. The patient may eventually have the cancer identified later--perhaps even by the same doctor--but the delay in identifying it meant that treatment was delayed. If treatment had been started earlier, the patient may have had a better chance of beating it. The doctor’ delay did not “cause” the cancer--it was there already--but it did lower the patient’s chance of survival.

Courts are often faced with questions about when, if ever, a patient can recover in a lawsuit if the harm they suffer is a “lost chance” of a positive outcome.

Another State Allows Loss of Chance
Last week, the Minnesota Supreme Court explicitly held that a medical malpractice claim exists even if the only harm is lowered chance of survival. In a split decision (Dickhoff v. Green), the court reversed an old rule in the state. Previously, to recover in these cases a patient had to show that they would have likely survived but for the doctor’s negligence. In other words, the patient’s survival chance had to be over the 50% mark before the error.

Now, however, as a result of this ruling, the patient may pursue the claim even if the chance of survival were less than 50-50 to start.

Loss of Chance in Illinois
How does the rule work in Illinois? Fortunately, our state recognized the right of patients in certain case to seek recovery even if their risk of survival or recovery was less than 50%. The classic case which decided this from the Illinois Supreme Court was Holton v. Memorial Hospital.

The ruling in this case places Illinois in the majority, as 40 out of the 50 states allow these types of claims. It is not surprising that most states recognize lost chance claims. After all, it seems patently unfair that a patient would lose their day in court simply because their illness was more severe to begin with. The same rules should apply to all who are affected by medical errors.

If you or a loved one is ever affected by a delayed cancer diagnosis, misdiagnosis, or similar error which resulted in a loss of chance of survival, please get in touch with our attorneys to see how we can help. As one might expect, there are many different legal challenges connected to these matters, and so it is critical to have the assistance of experienced professionals.

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Helping Your Doctor Avoid Malpractice

ITLA President Responds to Letter Regarding Illinois Legislation

The Role of Expert Witnesses in Medical Malpractice Cases

Wed, 12 Jun 2013 06:18:40 -0600

Expert witnesses are absolutely critical in medical malpractice cases. That is because many of these matters revolve around complex distinctions in medical terminology and protocols. The expert witness is able to connect the dots, providing professional explanation of how a certain course of conduct deviate from acceptable standards. Without that connection is usually hard (often impossible) for juries to truly evaluate the information before it to make logical decisions about potential liability. That is why for a case to advance, in many settings, expert testimony is not just helpful--it is required.

Experts are used not only in cases that go to trial. Even before a trial, during the discovery phase, both sides will usually submit expert witnesses to be deposed. Essentially this involves each side interviewing each expert witness, asking questions and receiving answers that would be used in a trial if it happens to go that far. All of this means that one of the most important skills that a medical malpractice lawyer must possess is the ability to understand how to deal with these witnesses--both those on their side and opposing experts. Identifying key discrepancies, exploring questionable answers, ensuring full explanations, and other strengths often make or break a particular medical malpractice case.

Expert Witness Examples
Recently “The Expert Institute” shared a few basic case studies that indicate how an expert might answer a question in various medical malpractice cases. These brief Q and A posts are helpful for those interested in learning more about how an expert may deal with a critical issue in a case and explain it.

One example involved a case alleging failure to remove a malignant tumor in a patient who had breast cancer. The woman underwent surgery to have some different cancerous tumors removed. However, in a follow up with a different oncologist, questions were raised about the conduct of her first medical team. Specifically, the second team noticed that various tissues should have been removed but were not. A second surgery was performed but her overall prognosis was poor, mostly due to the delay in the second operation. A medical malpractice lawsuit was filed.

The expert witness in the case was asked if the decision by the first doctor (defendant) directly caused the recurrence of cancer. This is a common contested issue in failure to perform or diagnose legal actions, as even if mistakes were made, those mistakes must be shown to have specifically caused increased patient harm.

The expert witness explained that the action did in fact cause harm. The expert pointed to specific randomized trials showing how various other possible causes generally were not shown to cause cancer recurrence. However, those in the patient’s position, without quick action, generally do have worse outcomes. In other words, the doctor explained how all of the alternative options that the defense-team would likely try to argue were simply not supported by the data.

It is worthwhile to check out the other case studies on the site if you are interested in learning more about some of the more nuanced issues faced by expert in these cases. Even with the experts, the technical matters are sometimes not easy to grasp, and it takes focused work on the attorney’s part to break down the evidence in an explainable way.

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Helping Your Doctor Avoid Malpractice

ITLA President Responds to Letter Regarding Illinois Legislation

Another Tort Reform Law Goes Down - Violates Constitutional Rights

Mon, 10 Jun 2013 07:19:25 -0600

One interesting aspects about tort “reform” legislation is that it highlights the very reason why a strong judicial system is necessary--to protect the rights of citizens. Even when legislature move to limit their rights to the very judicial system itself, courts can stand firm and refuse to allow such encroachment when constitutions have been breached.

Last week yet another state Supreme Court--this time Oklahoma--struck down a tort “reform” law for breaching the state’s own constitution. It is a textbook example of how legislative overreach is checked by a clear-sighted judicial system free of unnecessary encumbrances

The Case
The appellant in the case--the plaintiff challenging the law--argued that part of a measure (12 O.S. 2011 §9) violated article 5 §46 of the state constitution. The law in question required that plaintiffs in cases alleging professional negligence (like medical malpractice cases) file an “affidavit of merit” with the initial filing.

The plaintiff’s original malpractice lawsuit involved claims that a surgeon negligently cut a nerve on his arm, resulting in permanent injury. However, the case was dismissed because the plaintiff did not attach the “affidavit of merit” to the complaint. The plaintiff appealed arguing the laws unconstitutionality.

The Ruling
The state Supreme Court took up the case recently, and they issued a sweeping ruling in the plaintiff’s favor. A full copy of the court opinion can be found online here.

Essentially the court noted that the law failed the constitutional test on two grounds. First, the law violates one unique aspect of the state constitution which does not allow certain “special laws” to be passed dealing with at least 28 subject-areas. By requiring an affidavit to be filed in some negligence cases and not others, the legislature violated those requirements by passing a special law where it does not have the authority. The state constitution does not allow treating two types of cases differently in this way. The court noted that “the shortcoming of a special law is that it does not embrace all the classes that is should naturally embrace, and that it creates preference and established inequality.”

Second, in addition to breaching the “special law” rule, the court also found that the affidavit law violated another section of the state constitution which prohibits unconstitutional economic burdens on court access. The law enacts a high financial hurdle, because securing the affidavit requires paying an expert witness to provide testimony--even before filing the case. Those plaintiffs who are unable to pay for that expert testimony are essentially denied their ability to seek justice simply as a result of their financial status.

The state’s constitution--like those found in similar documents throughout the country--requires that courts be open to everyone for speedy remedy for every wrong and “shall be administered without sale, denial, delay, or prejudice.” Trying to increase the cost of using those courts via ancillary “requirements” like the affidavit are just as wrong as charging an exorbitant fee to file a complaint. Both cannot be tolerated.

The state Supreme Court’s decision in this case should be applauded. Hopefully more of those involved in legislative matters understand the principles underlying these decisions and refrain from pursuing laws which clearly violated basic constitutional principles.

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Helping Your Doctor Avoid Malpractice

ITLA President Responds to Letter Regarding Illinois Legislation

CPSC Considering Complete Ban on Bed Rails

Fri, 07 Jun 2013 06:56:34 -0600

There are many dangers hidden in the very places where we are supposed to heal. For example, many hospital rooms have bed with rails on the side. These bed rails are familiar to everyone. They are usually made of metal and run along the side of the sleeping space, presumably to prevent the sleeper from rolling off accidentally. While that general principle seems logical, those working on patient safety matters appreciate that bed rails usually cause far more harm then they prevent.

That is why many are leading efforts to get these bed rails off the market for good with the hopes of protecting hospital patients, nursing home residents, and other who sleep in spaces with the rails.

National attention was brought to the issue late last year with one of the leading anti-bed rail activists, Gloria Black, was profiled in a comprehensive New York Times article. Black began fighting in 2006 after her mother’s untimely death. The senior died in a nursing home after her neck became trapped in a bed rail and no one was around to help. It was a shocking tragedy, but, as Black soon found out, not all that rare.

Hundreds of cases of death caused by bed rails have been documented in recent years. The federal agencies in charge of these issues, primarily the Consumer Product Safety Commission (CPSC) have known about the risks for quite some time. Yet, next to nothing has been done about it.

Fortunately, signs indicate that the inaction may finally end soon. As discussed in a recent McKnight’s story, the CPSC is moving forward to join two different petitions related to bed rail safety. They are accepting public comment on the issue now and will continue to do so for the next two months--until August 5th.

One of the petitions was started by Ms. Black and has the support of dozens of diverse organizations. The second was begun by a consumer rights advocacy group, Public Citizen. The petitions were “merged” by the CPSC on Tuesday. The Public Citizen note called for a complete ban on bed rails because of the harm they pose to those using them. The other petition also urged a complete ban. But it went further by suggesting that if the CPSC decides against a complete ban, it is important to consider other protections like more warning labels and specific design limitations.

The CPSC essentially has an array of options before it, as it can decide to do nothing, prevent the use of all bed rails, and various steps in between. Safety advocates are insistent that no intermediary step will eliminate all harm, and so a ban is likely the best option. Whatever the outcome, we can be sure that advocates will be monitoring the situation to ensure no resident suffers harm unnecessarily.

No one should be hurt by a product that is supposed to keep them safe. When it does happen, however, there may be avenues for legal recourse for those affected. To learn more, please get in touch with our injury attorneys who work on cases where bed rails were involved.

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Nursing Home Bed Rail Safety Petition to CPSC

U.S. Senators Send Letter Urging Action on Dangerou Bed Rails

Helping Your Doctor Avoid Malpractice

Wed, 05 Jun 2013 06:51:19 -0600

Patients assume that doctors know what they are doing at all times. There is a tendency to trust doctor decisions without question, simply doing as one is told and expecting the outcome that the doctor says is likely.

But, as the hundreds of thousands of patient who suffer at the hands of medical errors know--doctors are not perfect. In the heat of a workday they may misread a test, fail to wash their hands, prescribe the wrong dosage of a medication, or otherwise take steps that will cause patients more harm. Understanding the prevalence of preventable errors, many advocates encourage patients be proactive in their healthcare. There are things that patients can do on a consistent basis which may allow an error to be caught before it causes harm.

For example, well-known TV doctors Oz and Roizen recently shared information on way to help your doctor avoid a misdiagnosis. The tips provided in the story are worth reading, as misdiagnosis remains one of the most common forms of medical malpractice. The article reminds that “39 percent of U.S. malpractice payments are for nondiagnosis or an incorrect or delayed one.” Even more, “of all medical mistakes, diagnostic errors appear to be the most common, most costly, and most dangerous.”

What can patients do?

The doctors in the article note that one of the main ways that patients can help identify misdiangosis is by asking questions and not simply “going with the flow.” For example, ensure that you leave the facility by knowing what other diagnoses the doctor could have made and why he ruled them out. By asking the doctor about this, you force him or her to think through their thought process one more time, potentially catching a lapse in judgment or a mental oversight.

In addition, they recommend being proactive about test results. There is no need to always wait for the doctor to call you about test results. Calling in to see if they have arrived is appropriate, especially if you are given a general timeline for the process. In this way, you can ensure timely response to adverse test results. There are many examples of test results that are lost or ignored, resulting in delayed diagnosis with serious consequences

It is also important to ensure proper collaboration between doctors. You may be seeing different specialists for various issues--this is particularly common for the elderly who have different medical concerns at once. Ensure that these professionals each have copies of your full medical records, test results, medications, and diagnoses. Many issues interact with one another, and so it is dangerous to have doctor issue opinions in isolation.

Make no mistake: Even if patient does not say or do anything proactive, doctors are required to act reasonably at all times when providing medical care. It is almost never appropriate for a doctor to excuse his error by claiming that a patient didn’t help out. The law requires doctors to meet reasonable standards of care at all times; when they fail to do so they are liable for damages caused. For help understanding how these rules apply in your case, please contact our med mal attorneys today.

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A Stoplight Approach to Patient Safety

Back to the Basics: Understanding Medical Malpractice

ITLA President Responds to Letter Regarding Proposed Illinois Legislation

Mon, 03 Jun 2013 08:18:10 -0600

The battle over legal fairness in Illinois rages on. Many believe that ‘tort reform” is synonymous with damage caps. However, big companies, chronic defendants, and high-profile interests groups can chip away at the legal rights of community members in many other ways. For example, as we often discuss, mandatory arbitration agreements or other forced alternative dispute-resolution processes usually allow defendants to move matters into a forum where they have the upper hand. Rulings about timing requirement, sufficient evidence standards, and other issues similarly use various procedural grounds to limit the amount that companies have to pay when their errors cause harm to others.

Considering the damage that comes with these rule changes, many advocates work within the legislative process to fix the loopholes and create legal safeguards for community members. For example, take a bill that was debated in the Illinois General Assembly recently, Senate Bill 1912. The bill changes various rules regarding civil procedure in Illinois courts. Most notably, the law would require that defendants settling a case for damages must tender a release to the plaintiff within 14 days of reaching the agreement. It also requires that the defendants must pay the settlement within 21 days of the release. Failure to follow these rules would result in required interest payments.

This seems like a straightforward piece of legislation. If parties settle a matter, the defendant who is paying for damages is required to act in a timely fashion to meet the settlement demands. Stall tactics and delays need to be cut out to ensure more timely accountability and redress for those trying to recover after a loss.

Expectedly, those openly hostile to the legal rights of community members were quick to make wild claims about the dangers of this law. Most of those claims refer to clogging up the court system and preventing settlements. Recently the president of the Illinois Trial Lawyer’s Association, Gregory L. Shevlin, wrote a letter to the editor in response to one of those attacks. He noted the reality: the families who need this legislation most are those who must deal with the consequences of an error immediately.

For example, families of those who are severely injured due to medical malpractice do not have the benefit of waiting weeks, months, or even years before dealing with the reality of the error--hiring nurses, getting special equipment, paying for therapy, etc. They need to act immediately, and it is only logical that those responsible for the harm act in a timely fashion to provide redress owed so the family can deal with the consequences.

When the Illinois General Assembly session ended last Friday, the House took up the vote on the bill that the Senate had already passed. On Tuesday, May 28th the House also voted to pass the bill (67 to 50). In the next two days--the final days of the session-- a concurrence was passed by the Senate in committee and on the Senate floor. As a result, the bill officially passed both Houses and will be sent to the Governor for his signature. If he signs, then the measure will become law, helping many families throughout the state.

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A Stoplight Approach to Patient Safety

Back to the Basics: Understanding Medical Malpractice

A “Stoplight” Approach to Patient Safety

Fri, 31 May 2013 06:04:54 -0600

Prioritizing patient safety usually requires concentrated effort from entire medical caregiving systems--hospital administrators, doctors, nurses, aides, and all those involved in medical care. Many different individuals interact to provide services to patients, and ensuring that mistakes are avoided means that all those involved commit to doing everything in their power to prevent problems. As it now stands, we have a lot of work to do. Upwards of 200,000 patients die every year because of medical mistakes--many more are injured. This is a problem of large proportions.

But the fact that the problem is large does not mean that all possible solutions are complex. In fact, patient safety advocates repeatedly point out that lowering errors rates and saving lives can actually be accomplished with commitment to very simple changes. For example, even the act of washing hands consistently can prevent the spread of infection that claims many patient lives each year. Checklists can also prevent simple oversights and lapses in judgement which result in errors and take lives.

A recent story from Beckers ASC discusses one way that some facilities are trying to prioritize patient safety. The approach is known as the “Stoplight” method for its categorization of different patient safety concerns. Using the colors red, yellow, and green, the method labels each risky situation based on the ability of a team to address it.

How It Works
The process works with hospital executive conducting routine rounds (usually daily) to identify possible risks. Those risks are discussed with “front-line” workers and each is given a color label.

Green refers to those items that can be immediately fixed. For example, shortage of a certain supply can be re-stocked to eliminate the danger. Because employees can address the matter right away, the green signifies action.

Yellow refers to those issues that do not have an immediate solution. These require intermediary levels of action to fix. The article gives the example of communication problems between doctors. Developing a new communication system may take anywhere from three to six months to fix, but the outcome would minimize transfer problems and ensure doctors work together to maximize patient outcomes.

Red refers to patient safety risks that are far more difficult to address. The item used as an example is the big-picture issue of preventing readmissions. Solving this problem requires more comprehensive action. For example, it may require more substantial information technology systems to identify specific ways to lower readmissions. These problems might require much more time and infusion of capital to make it happen.

Patient Safety in Illinois
All methods that work to standardize patient safety and address risks quickly should be applauded. According to the article, this method is being used by Advocate Lutheran General Hospital in Park Ridge, Illinois. A representative for the firm noted that thus far it has been an easy and effective way to deal with various safety concerns. Most patient safety issues fall into the “green” and “yellow” categorizations, which means the tools are there to fix the problem. Hopefully this translates into better outcomes and safer Illinois medical patients.

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Back to the Basics: Understanding Medical Malpractice

The Challenge of Altered Medical Records in Malpractice Cases

Back to the Basics: Understanding Medical Malpractice

Wed, 29 May 2013 09:45:09 -0600

Last week Forbes published a helpful primer that goes over many general, but critically important and practical topics related to medical malpractice. Considering the large number of people who may one day be affected by a medical error, it is helpful to re-visit some of the general issues that all Illinoisans should know about the legal ramifications of medical negligence.

For one thing, as the article notes, everyone should understand the full scope of the problem. Negligence by medical professionals is not a fluke occurrence--it is the third leading cause of death in the country behind only heart disease and cancer. Every 43 seconds there is another payout in some form--settlement or court judgement--as a result of a medical error.

Considering that a large number of errors go without legal consequence, this is a truly staggering number. According to recent estimates, even though about 200,000 people are killed every year as a result of medical malpractice, only 15% of personal injury cases relate to medical errors. This is in large part because of the expense and complexity of these legal cases. Proving malpractice can be challenging, because of the nuance in the law and the cost of hiring experts, etc. This is one of many reasons why it is important to have the aid, as soon as possible after an incident, of an experienced attorney. The legal professional can provide advice on the likelihood of success.

Avoiding Negligence in the First Place
Even in the best situations, where a significant settlement or judgment is reached, all victims would give it all back if the error itself could be reversed. Financial damages do not bring back a person who died because of an error or improve one’s health that was forever damaged because of a mistake.

So what can anyone do to lower their risk of being harmed in the first place?

The Forbes article discusses how proactive medical decisionmaking is the best that anyone can do to position themselves to receive adequate care. That means browsing the track-record of different medical facilities or providers when one has a choice (i.e. not an emergency situation). It also means doing a bit of research on one’s symptoms and preparing questions to ask the doctor. Questioning often spurs the professional to check something that he or she failed to check before.

Importantly, the story notes that it is important to “Speak up and advocate for your own well-being. If patients sense that something is wrong, they should tell—or ask—their healthcare providers. Although it’s important to trust your doctor or nurse, it’s also important to listen to your body … and use common sense.”

Many misconceptions about general medical malpractice issues still exist. Some worry that pursuing a case may result in higher medical payments or that a doctor may refuse to treat them after a case has begun. On the political side, some still believe that these lawsuits are connected to healthcare costs or that right of patients need to be taken away. Remember: these are all myths. The general principles of medical malpractice law are simple, holding medical professionals to the same standards of reasonable care that apply to everyone.

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The Challenge of Altered Medical Records in Malpractice Cases

Nursing Levels -- Cutting Back Hurts Patients

The Challenge of Altered Medical Records in Malpractice Cases

Tue, 28 May 2013 07:17:33 -0600

With all of the discussion of “rampant” lawsuits and doctor’s fear of malpractice laws, one might get the impression that winning a case for negligence is easy. The opposite is true. In all civil lawsuits, the benefit of the doubt goes to the defendants, as the plaintiff (injured patient/family) is required to prove each element of the claim.

Even in cases where negligence occurred, securing enough proof for the mistakes can be hard. For one thing, the defendant usually has access to all of the necessary material to show what happened. That material takes many forms, from patient medical records to the recollections of those who provided the care. The defendants are required to provide access to the necessary information as part of the “discovery” process of litigation. But on many occasions those parties are less than forthcoming, using every available tool to delay providing the information to trying to withhold important details altogether.

In the worst cases, the very medical records which are critical to the case are altered, painting a false picture of the care that was provided to the patient in the case. Considering that the documents are in the possession of the defendant and can be decisive in a case, the unlawful “doctoring” of those records is far more common than one might expect. Unfortunately, it has become critical for medical malpractice lawyers to familiarize themselves with the signs that these records were altered.

Detecting False Records
The book Medical Legal Aspects of Medical Records, provides a range of tips for practitioners when it comes to spotting these issues. The list includes both signs that there may be problems with the documents as well as practical strategies for dealing with the situation to improve the chance that the truth eventually comes to light.

Many of the suggest relate to comparisons of different types of records. If there is inconsistency, then it might be a red flag of some problems. Nurses’ notes, for one thing, should be compared to other patient records for possible problems.

Similarly, billing records should be compared with documented care in a patient file. If a service or visit was billed but not documented, then it may be a sign that some files or information are missing in the record. For example, a doctor may want to deny that a patient visited on a certain day in a failure to diagnose case. The doctor may have missed clear signs of a medical problem and wish to pretend that he never even saw the patient by removing records of the visit. Yet, if the facility billed insurance providers for the service, then its an indication that something is wrong with the paperwork.

Along the same lines, employee schedules can be checked to ensure the actual employee who is said to have performed some service was even on the clock at the time. Surprisingly, many cases of altered medical records are done rather sloppily, with those faking the report failing to ensure their alterations even fit with who was working.

There are many other ways that lawyers familiar with these cases can explore if there are suspicions of altered medical records. The risk of this sort of conduct is one reason why it is important to have the help of a legal team that has deep experience on these matters which can be put to use for you.

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Nursing Levels - Cutting Back Hurts Patients

Refocusing the Debate: Litigation Improves Patients Safety

Nursing Levels -- Cutting Back Hurts Patients

Fri, 24 May 2013 06:11:06 -0600

Our team of attorneys working on nursing home neglect matters frequently point to staffing levels as a key factor in the prevalence of widespread mistreatment at long-term care facilities. The logic is pretty straightforward. Nurses and aides perform the bulk of basic caregiving and routine medical functions at these facilities. Each individual worker can only do so much each day in the work time they are allotted. Therefore, there must be a sufficient number of employees to ensure that each individual resident or patient receives the care they need.

Unfortunately, this runs counter to the goal of many owners and operators who have to pay those employees. They seek to lower costs in order to increase profits to owners and shareholders. By cutting back staffing levels to the bone, their payroll significantly decreases and they make more money. But facility residents suffer as a result.

This dynamic is often discussed in the nursing home context. It is important to note that the same issues apply in other medical facilities--like hospitals. When a hospital does not have sufficient nursing levels, patients may unsuspectingly placed in danger.

Mandatory Minimum Laws
Noting the critical importance of proper levels, many advocates have fought for laws to ensure facilities are obligated to meet certain basic staffing level requirements. That is exactly what happened in nursing home neglect prevention laws. Illinois law mandates a certain number of hours per day of individual nursing care per resident (though there is widespread abuse of this law).

Considering the similar dynamic, doesn’t it make sense to have the same basic safety rules in place for hospitals? That is exactly what many advocates are pushing, but it is a long political slog on a state by state basis to get these rules in place. That is because medical associations are a powerful lobbying entity who fight tooth and nail to prevent any safety requirements such as this.

A Kaiser Health News article last month explored the issue. The story noted how only one state--California--currently has a law on the books which mandates a minimum nursing level in hospitals. Similar laws have been proposed in many other states, but they have all been struck down. The main arguments comes from hospital administrators who claim that the rules take away staffing decisions from individual administrators while coming with far too high of a financial burden. Making claims about rising healthcare costs is always a surefire way to cause panic.

However, nursing organizations stand in direct opposition to those administrators. They note that patient lives are risked far too much, because there is only so much that an overworked and outnumbered nursing staff can do.

Those concerns are backed up by science. For example, a 2004 survey form the U.S. Agency for Healthcare Research and Quality found that lower “nurse-to patient” ratios correlated with more adverse medical outcomes. In other words, patients fared worse in facilities with fewer nurses.

Hopefully the momentum continues and Illinois hospitals begin to better understand the need to prioritize patients over profits at all times--including on issues like nursing staff levels.

See Other Posts:

State Supreme Court Mandates Arbitration in Nursing Home Death Case

Accountability for Failed Response to Nursing Home Abuse

Medical Device Company Hospira Warned by FDA Over IV Pump Concerns

Wed, 22 May 2013 06:40:41 -0600

The U.S. Food and Drug Administration (FDA) plays a critical role in keeping consumers safe. There is a reasonable expectation that a product that is bought at a store will be safe for use. That expectation is even more secure when it comes to products that are used by medical professionals in critical health care processes. A patient does not wander through a store to select which medical products are used in their care. From hip implants and needles, to medication and IV pumps, patients rely on the choices of their doctors and care of regulatory agencies like the FDA to ensure that dangerous products are not allowed.

Our entire caregiving process is based on this trust. That is why we must be incredibly vigilant about holding designers and manufacturers accountable when products actually harm patients unnecessarily. In the aftermath of dangerous products, medical device lawsuits are common to ensure that accountability is provided and those affect receive redress.

Yet, ideally the damage would be prevented altogether. That is where regulatory agencies are in control. It is critical that the FDA act aggressively to ensure product manufacturers make choices, if necessary, so that dangerous products are pulled from use in a timely manner.

Dangerous IV Pumps
For example, recently the FDA issued another warned to a company that produces a line of IV pumps. As reported in Chicago Business, Hospira, Inc. received a letter from the Administration two weeks ago which included findings from the FDA’s inspection of the company’s headquarters earlier in the year.

The problems included in the letter mostly relate to serious concerns about the safety of pump designs. On top of that, however, the FDA was concerned about the lack of sufficient protocols in place to take “corrective and preventative” action as part of an overall safety plan. There were also concerns about lack of proper reporting following adverse events related to products that the company makes.

In addition, the findings included some worrisome flaws, including concerns about the company’s planned phase out of IV pumps like the Symbiq, GemStar, and others. The company plans to replace those pump with “remediated Plum A+ pumps.” This entire process will cost upwards of $350 million, and FDA officials are unsure of the ultimate effect on patient safety.

Profits Over Patients - Always Unacceptable
Obviously many varied business decisions factor into choices by companies like Hospira. The business of medical device design and manufacture is quite complex, and it is easy to get lost in the details. However, the underlying principle of patient safety must be prioritized first, above all else. While any consumer product can cause harm, those created specifically for medical care pose an increased risk of serious adverse consequences when they are not designed with safety in mind or manufactured improperly.

We have many examples of dangerous products that are not pulled from the market quickly enough (like DePuy hip implants), allowing more patients to be harmed than necessary. We should never allow that to happen again, and so it is encouraging to see the FDA act with vigilance in mind.

See Other Blog Posts:

Do Negligent Hospitals Actually Profit From Malpractice?

Leading Cause of Litigated Medical Malpractice - Diagnostic Errors

Refocusing the Debate: Litigation Improves Patient Safety

Mon, 20 May 2013 16:48:54 -0600

Many aspects of the Affordable Care Act (Obamacare) are set to take effect this year. Expectedly, this is causing certain groups to make dubious claims about the effect the law will have on businesses and the “tyranny” of requiring health insurance. Those who support the law are doing a decent job of reminding that the goal of the law is actually to lower costs--and there are signs that the goal will be met over the long-term.

But it is also crucial not to forget a second aspect of the law--actually improving patient safety. As med mal attorneys, this is a topic that we frequently discuss. It remains surprising that more attention is not placed on actual health outcomes, because many different policy decisions-at the federal, state, local, and institutional level--affect the quality of services that are provided.

More Transparency
The need to re-focus on patient safety was the topic of an op-ed recently published in the New York Times. The article mentions how tens (perhaps hundreds) of thousands of medical patients die every year in way that could have been prevented if error-free medical care was provided. As with similar industries, the best way to fix the problem is to shine a spotlight on it. Analyzing the scope and details of the problem and providing incentives to enact changes are the keys to improvement.

Even those who are virulently against preserving litigation rights for injured patients admit that patient safety begins with transparency. That is why it is important to point out that new research is showing that, far from acting as any sort of impediment, proper use of medical malpractice lawsuits actually increases patient safety transparency.

Some argue that the tort system caused doctors and hospitals to “clam up” when mistakes were made out of fear that honesty would affect their legal liability. But, the evidence suggests something far different. As the NYT editorial pointed out: “the openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk.”

New Patient Safety Research
The author--a law professor--conducted a survey on hospital risk management, legal claims, and quality improvement. those surveys included some in-depth interviews that yield helpful information about how legal risk actually influence patient safety.

Instead of being secretive, more and more health care professional are becoming more honest with patients and their families following adverse medical events. This is great news for those who care about honesty and accountability in the medical setting. We can only hope that the trend continues.

Perhaps the most interesting aspect of the new research were the finding on the causes of the change in mindset among healthcare professionals. Most notably, being honest simply works in the hospitals best interest in the long-run. By admitting error and being more open to fair settlements early on, facilities are able to save on legal costs and minimize the overall cost of dealing with errors.

But not only that, facilities are actually using malpractice lawsuit data to identify risk areas. In other words, the lawsuits are key pieces of information which show where improvement is needed, allowing facilities to better target their quality efforts. Far from being a deterrent, the legal system therefore plays a critical role in the overall patient safety regime.

See Other Blog Posts:

Settlement in Stent Malpractice Case

More Federal Medical Billing Transparency On the Way?

Settlement in Stent Malpractice Case

Thu, 16 May 2013 08:27:27 -0600

The Clinical Advisor reported recently on the end of a high-profile medical malpractice case that made headlines across the country. The situation involved a cardiologist who was accused of performing a mountain of unnecessary surgical procedure to implant stents into patient hearts. The patients agreed to the surgeries while assuming that they were necessary per the doctor’s recommendations. However, it was eventually learned that many of those stents may not have been medically necessary--the doctor was only urging them because of his financial interest in performing the operation.

Mid-Trial Settlement
The doctor, and owner of a medical clinic in Maryland, was accused of performing the hundreds of unnecessary stent procedures over a two year period--between 2007 and 2009. Eventually the doctor’s medical license was revoked for his conduct. However, it has taken the remaining years for the civil lawsuits filed in connection with the matter to make their way through the system.

Six weeks ago, the matter began at trial. Most trials do not necessarily go that long, but considering the number of patients affected, the length of the problem, and the complexity of proving this sort of malpractice, a large amount of information needed to be presented to the jury.

Interestingly, just this week, even after the lengthy trial was already well underway, the matter was abruptly ended with a settlement. As is frequently the case, the terms of the settlement are confidential, and it is not known how much the matter was settled for. What is known is that it resolves the claims for at least 250 patients who had individually filed suit against the doctor and a hospital where he worked. That is not the end to the matter, however, as there remain at least 45 other lawsuits still pending which are connected to these same claims.

Unnecessary Surgery Malpractice
This particular case has garnered significant attention both because of the number of affected patients as well as because of the unique nature of the alleged malpractice. Of course, errors like failing to provide a timely diagnosis or committing a medication mistake are what most normally think of when the words “medical malpractice” is mentioned. Far fewer appreciate that something like ordering a surgery that isn’t needed can also constitute malpractice.

One need only return to the fundamental principles of negligence to understand how it works. A party can be held liable in a civil court when they owe a duty of care (this always is true in a doctor-patient relationship), and breach that duty while causing injury. The breach occurs when the doctor does not act in a reasonable way when compared with other prudent doctors in the area. Ordering a surgery that isn’t needed is therefore a breach. One complexity in these cases is meeting the final elements of “causing injury.” If the stent does not lead to obvious damage, is there harm? The answer is usually yes, because any surgery comes with risks and potential problems down the road. Even opening oneself up to future injury unnecessarily is an “injury” that can be compensated via civil lawsuit.

For assistance with any medical malpractice matters in Chicago or throughout Illinois, please contact the IL malpractice attorneys at our firm for help.

See Other Blog Posts:

Doctor Faces Several Med Mal Lawsuits

New Allegations of Over-Stenting Against Doctor