Articles Posted in Medical Malpractice

All patients place immense trust in their medical professional when they visit them for help identifying or treating a medical problem. With that trust comes a responsibility on the part of the medical staff members—from doctors and dentists to nurses and nurse’s assistants—to conduct themselves in a reasonably prudent manner under the circumstances. Medical patients cannot always expect perfection, because medical conditions always involve a certain level of risk. However, patients do have a right to expect that the professional will perform just as other reasonable medical employees would. When a doctor in our area fails to provide that level of care, then the victims need to consider filing a San Diego medical malpractice lawsuit.

Depending on the specific situation there are different rules that apply when it comes to California medical malpractice cases. Various legal doctrines exist that dictate when lawsuits have to be filed, where the case must be tried, and who can file a lawsuit (i.e. a parent on behalf of an injured child). Of course, understanding and identifying these issues in our area is a crucial role played by a San Diego medical malpractice attorney. A lawyer familiar with this area of the law should be able to listen to the facts of a new client’s situation and shortly thereafter develop a good understanding of the how the legal rules are applicable in that particular case. medmal.png

The attorney can explain if there are any special doctrines that apply. For example, the “Feres Doctrine” is a well-known legal rule in the medical malpractice field which many observers find to be misguided. The 60-year old legal precedent holds that the U.S. government cannot be held liable for medical malpractice committed against an armed forces service member while on duty. If the doctrine is applicable in a specific case, an attorney should explain that to a potential client. However, it is also vital for the nuances of the rule to be understood which may allow victims to recover. In this case, while the Feres Doctrine bars suits from service members suing for medical negligence, military dependents are allowed to proceed with these suits. Therefore, when the husband or wife of a service member is harmed by the mistakes of a military medical employee they can file a civil suit and seek compensation for their losses.

California has onerous medical and nursing home malpractice awards. As we’ve discussed, under no circumstances can an award for non-economic damages (e.g., pain, suffering, disfigurement, etc.) be more than $250,000.00. If a jury, in its judgment, believes a person’s damages are worth more than the cap, a judge must reduce it. There are many, many examples of the injustice this misguided law has caused. By the way, the $250,000.00 figure was arbitrarily set in the early 1970s.

Since that time, there is the perennial battle of those for a free civil justice system and those for “tort reform,” who seek to limit what victims of malpractice can recover. Usually, these battles are waged on political partisan lines, and not without irony. The Democrats, often portrayed as big government advocates, argue for less regulation over the civil justice system, and Republicans, argue for more regulation.

Andrew Cochran from a blog called 7th Amendment Advocate makes an effective argument as to why conservatives should oppose tort reform. According to his bio, Mr. Cochran is a lifetime conservative and Republican who served as a political appointee in the Reagan Administration. He is also a lawyer, and a member of the Tea Party Nation and Tea Party Patriots. He believes that conservatives and Republicans should oppose tort reform efforts.

Citing the U.S. Constitution as his authority, Mr. Cochran makes several points as to why tort reform is not a conservative position:

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She is probably too young to have any understanding of what happened to her, but little Malyia Jeffers life will never be the same after her long emergency room wait at Methodist Hospital in Sacramento. Her father took her there with a fever and a rash, and was asked to wait to be seen. He waited, and waited, and waited, and after five hours, and his daughter’s dramatic decline in health, he was seen by a physician. By this time it was almost too late.

Malyia’s body began to shut down and went into liver failure. Doctor’s moved her to ICU and quickly learned that she was suffering from a strep infection. They gave the parents a grim choice, amputate her hands and feet or Malaya will die.

“This is the hardest thing I was dreading the most… was having to make a decision,” Malyia’s dad, Ryan Jeffers, told reporters. “They said ‘your daughter’s dying and the only thing we can do to save her is to amputate.”

Tri-City Medical Center and Pomerado Hospital have been fined by the California Department of Public Health for medical mistakes that caused patient injury within the last year. A fine of $50,000 was assessed against each entity.

At Tri-City, a patient was seriously burned when a cauterization machine ignited oxygen in a breathing mask and causing a fire. According to reports, the man was hospitalized for breathing difficulties, and then underwent a procedure to insert a tracheotomy when the fire-incident occurred.

The Pomerado Hospital incident involved a psychiatric patient who suffered brain damage when he tipped over backwards in a reclining chair, and struck his head on the floor. The man was apparently noted to be a very high fall risk, but, according to the State, the hospital failed to take adequate precautions to prevent the incident.

Rancho Springs Medical Center and Inland Valley Regional Medical Center were informed by Medicare last week that they will lose Federal Medicare funding because of their repeated failure to follow basic care standards. The hospitals were also hit with hefty fines for serious healthcare related deficiencies.

The decision by Medicare to end funding came after an inspection in January where officials found, among other things, that pharmacists failed to ensure that dangerous medications were used in a safe manner, and where physician assistants were not properly equipped to screen patients. The hospitals have been under the watchful eye of regulators since 2007, when they were first notified of the questionable care being provided to patients.

These two hospitals find themselves in small company. Since 2000, only 32 hospitals have lost Medicare funding. And, remarkably, despite the problems, the company CEO was rewarded with a $3.4 million bonus in March.

A new device that tracks and locates retained objects (surgical items left inside a patient after an operation) is getting attention. The RF Surgical Detection System uses a wand to scan the surgical area to find any tagged items that might have been left inside the patient. Tags are small seed-like items that are embedded in gauze and surgical sponges.

According to the New England Journal of Medicine a major hospital can expect to have one or more cases of retained objects per year. Those figures however, were based on actual medical malpractice claims, so the real number is probably higher. It is generally believed that an object is left in the body in 1 of every 8,000 surgeries, the most common item being the surgical sponge.

Most hospitals rely on a counting system. Nurses count the number of sponges that are being used in a procedure, and then make sure they have the same number of used sponges in sight before closing the patient. If the count doesn’t match, then the patient cannot be closed. Sometimes, however, nurses count incorrectly (or forget).

The California Department of Public Health fined three San Diego area hospitals for making mistakes that could cause “death or serious injury.” The implicated hospitals are Grossmont Hospital, Sharp Memorial Hospital, and UCSD Medical Center.

According to the Union Tribune, Grossmont hospital received a $50,000 fine for marking the wrong side of the head of a 93 year old, who was undergoing brain surgery. Before the mistake was realized, part of the man’s skull had been removed and the brain exposed. The mistake was corrected during surgery, and the surgery completed without further incident.

Sharp Memorial Hospital was also fined $50,000 for failing to follow surgical protocols. There, a sponge was left inside the body of a 69-year-old woman who underwent heart surgery. UCSD Medical Center was also fined for failing to follow surgical procedures, resulting in a second surgery on the patient to remove a foreign object. The UCSD surgery was performed by a first-year intern.

CNN is out with a story about how to avoid medical mistakes. The story – which can be found by clicking here – highlights the story of a pregnant woman who is mistakenly given a CT scan of her abdomen, sites some startling statistics. For example, the Joint Commission, which grants accreditation to hospitals, reports that wrong-site, wrong-side, and wrong-patient procedures occurs more than 40 times every week in the United States.

In Rhode Island, state regulators ordered that video cameras be placed in all operating rooms after several medical errors, including an incident where doctors removed the tonsils of a child who was in the hospital for eye surgery. The hospital had at least six known surgical errors in the previous eight years.

Jim Conway from the Institute of Healthcare Improvements wants to empower patients to make sure they are not victims of medical malpractice. He is promoting a list of advice:

The medical spa (or medi-spa) industry is booming, but the growth hasn’t been all good. With more customers seeking beauty treatments through medical treatments (such as laser hair and scar removal) more and more of these “patients” are suing for medical malpractice.

Lawyers who represent medical malpractice plaintiffs believe there is going to be a huge increase in malpractice cases arising from medi-spa care. One reason is the sheer number of these spas. In 2004 there were only 471 in the U.S., now there are almost two thousand. Another is that these medical facilities are lightly regulated.

For example, in Arizona, a woman recently sued Timeless Laser & Skin in Maricopa County alleging she was “severely burned and scarred” during laser hair removal procedure. And in another Arizona case, a man sued Neos Medspa over scarring, “extreme pain” and burning from a laser hair removal procedure done on his shoulders and back.

It has been more than a decade since the National Institute of Medicine recommended that the health care industry stop blaming doctors and nurses for medical errors and start looking at prevention. An investigation by Hearst Newspapers has found that very little has changed since that time. A proposed mandatory nationwide system for reporting and analyzing medical mistakes was never created, while the rate of medical error is increasing.

The investigation by Hearst, which included a team of investigators and several hundred interviews, has resulted in the launching of a website called “Death by Mistake” which highlights the stories of people victimized of medical malpractice. Some studies estimate that 98,000 people die every year from medical mistakes that could have been prevent. That equates to more deaths each month than occurred in the 9/11 attacks. This figure does not include the estimated 99,000 people who die each year from hospital-acquired infections.

The website also has a hospital safety database for several states, and tells the story of many medical malpractice victims.

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