Articles Posted in Professional Negligence

In most cases, if you have been injured by a company’s employee, that employee may not be solely liable for any injuries caused. Under the law, employers are often liable for their employees’ actions and the results of those actions, even if the employer did not play a direct role in your injury or any intent to injure you. The law holds an employer responsible, because an employer directs its employees’ behavior and the employer is also more likely to be able to compensate you for your injuries.

If an employee is in the course and scope of his or her employment, then the employer is responsible for any negligent actions that the employee takes or even if the employee fails to take a proper action. Generally, an act is considered in the course of employment if the employer has authorized the employee to act or the act is closely related, or arises from an act authorized by the employer. On the other hand, an employer will generally not be responsible for an employee’s actions if the employee is running a personal errand or doing some other personal business on company time.

By way of example, some employers allow their employees to use a company vehicle. If an employee takes the company car to a bar and gets into a car accident, the employer may not be liable because the employee was visiting the bar on his or her own time. On the other hand, if the employee is taking a client to the bar with the permission of the employer and gets into a car accident, the employer will be responsible, because they were acting with the authorization of their employer. The issue is not always cut and dry, though, with the possibility of intoxication making things more difficult, because it is arguable whether or not the employer should have expected the employee to become intoxicated. In addition, if a company car is being used at the time of the accident, under certain circumstances the employer may still be on the hook if the employer had some awareness of the car’s use.

Particularly in these difficult economic times, parents no longer have the option of having one parent stay home to take care of the children while the other parent works. As a result, parents must resort to placing their children in daycare. While many daycare centers are well-run and do not experience any major issues, there are others that are not as concerned as they should be about your child’s safety. Unfortunately, sometimes you will not discover whether your daycare center is truly good or bad until a problem arises. daycare.jpeg

One issue that comes up on a frequent, but irregular, basis is that of E. coli. It is a type of bacterium that commonly resides in the intestinal tracts of humans and animals. E. coli is transmitted when people come into contact with feces containing the bacterium. It can get into meat during processing, and it may be found in raw dairy products or raw fruits and vegetables. Sometimes feces can get into a lake or other water supply, and E. coli can find its way into drinking water. E. coli is also spread through person-to-person contact, usually when an infected person does not wash his or her hands after going to the bathroom.

Unfortunately, children are quite susceptible to contracting E. coli at daycare. The news organizations seem to be constantly telling us about another shipment of fruits or vegetables that are infected with E. coli, and if your daycare provides food to your child, they may be at risk. In addition, as many parents are aware, children are not always very hygienic and may not wash their hands after going to the bathroom. With all of the children touching the doorknobs, tables, other surfaces, books and toys, it is not hard to imagine a child spreading E. coli bacterium all over the daycare center.

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.”

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.

The New York Times has obtained a government report that concludes that the drug Avandia [aka Rosiglitazone], prescribed for diabetes, causes heart attacks and heart failure and should be removed from the market. According to the report, if every diabetic currently on Avandia were instead given Actos, an alternative drug, about 500 heart attacks and 300 cases of heart failure would be avoided every month.

Because of a multimillion dollar advertising blitz, Avandia was, at one time, one of the biggest selling drugs in the world. In 2006, sales of the drug totaled over $3 billion dollars. In 2007, however, a study by a Cleveland Clinic cardiologist suggested that the drug actually damaged the heart, and after a warning from the FDA, sales of the drug dropped dramatically. Despite the findings of heart damage, the drug stayed on the market when “an F.D.A. oversight board voted 8-7” too keep it on the market. (It would be interesting to know the politics at work behind that decision.)

“Rosiglitazone should be removed from the market,” concluded Dr. David Graham and Dr. Kate Gelperin of the FDA in the report obtained by the Times. GlaxoSmithKline, the drug’s manufacturer, disagrees (of course). It has stated that Avandia has been thoroughly tested and that “scientific evidence simply does not establish that Avandia increases” the risk of heart attacks.

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:

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.

A 31-year-old emergency room technician was arrested last week for raping a woman inside the emergency room at Mission Hospital in Mission Viejo. The woman was reportedly too intoxicated to resist.

According to reports, police received a 911 call from inside the hospital from the woman, who said she believed she had been raped. Police responded, and an examination produced DNA that was later linked to EMT Jesse Karin Pena, who lives in Winchester. Pena was arrested and is expected to appear in court Monday morning.

“This is a hideous crime,” said Jim Amormino, spokesman for the Orange County Sheriff’s Department. “One should expect to get treated and this is the last thing you have to worry about.”

Four area hospitals have received $25,000 fines for serious mistakes that state investigators allege have caused serious injury and death. The mistakes include. (1) the use of a malfunctioning anesthesia machine at Pomerado Hospital, causing patients to be partially awake during surgery, (2) allowing a patient to fall off an operating room table during surgery at Scripps Green Hospital, (3) permitting an individual with a revoked nursing license to treat patients at Promise Hospital’s skilled nursing facility, and (4) the failure to turn on a ventilator at Sharp Grossmont, which caused a patient to die.

In the matter of the malfunctioning anesthesia machine, an injured patient told the San Diego Union Tribune that she “felt cutting, smelled burning, felt intense pulling down and towards (my) right side…I could feel the tears coming down my cheek . . . why didn’t they see my tears? I tried to talk . . . the pain was horrendous.”
Of course, most people don’t realize that few of the victims will receive justice for the medical negligence that caused their suffering. California’s MICRA law restricts the recovery of non-economic damages (e.g. pain, suffering, disabling, embarrassment, etc.) to $250,000.00. Under no circumstances can any victim who is injured, maimed, or killed by a health care provider in California receive more.

Sharp Grossmont Hospital is under investigation after an anonymous tipster told officials that the recent death of a patient was not due to natural causes but because of medical malpractice. Harvey Houtkin, a successful author, died on July 25th after what was considered uneventful surgery on his tonsils. The cause of death was listed as natural until a physician anonymously told investigators that Mr. Houtkin died after his breathing tube became dislodged, blocked his airway, and no one noticed. The San Diego Union Tribune reported that:

No staff member had noticed quickly enough that Houtkin had turned blue, the doctor said, and efforts to save him came too late. What ensued was a very messy scene where the anesthesiologists could not reintubate the patient and the surgeon could not establish an opening in the windpipe, the physician said.

The hospital, of course, is denying this.

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