Andrew Meyer on Rebecca Riley Wrongful Death Lawsuit - Bipolar Disorder Diagnosis and Drugs

Here is the interview with renowned Boston medical malpractice attorney Andrew Meyer on WGBH's 'Greater Boston' with Emily Rooney. The case involves diagnosis of a 2 and a half year old child (Rebecca Riley) with bipolar disorder, who died of over medication. This video is from the Lubin and Meyer You Tube Channel, and is shared here for readers of Medical Malpractice Law News.

Surgical "Time Out" Is New Safety Check at Beth Israel

In this Boston Herald article, Report points out OR staff lapse in Hub surgical error, more information is available on a hospital's response to wrong side surgery at Beth Israel Deaconess Hospital. It involves compliance standards including a surgical "time out" and special markers to indicate the spot of surgery. Read article for more information. This post follows on early one here with surgeon's response: Ouch! Surgeon Apologizes for Operating on Wrong Side.

Wyeth v. Levine and the Right To Sue

There has been a lot of press related to the case before the Supreme Court, Wyeth v. Levine, being watched as a potential landmark ruling that would make it easier for pharmaceutical companies to protect themselves from product liability lawsuits. This article on Pharmalot does a good job of wrapping up the loose ends with links to original material. See: The Right To Sue: A Case Against Preemption.

"Now that the key parties have filed their briefs with the US Supreme Court, which will review a case involving Wyeth on November 3, a host of interested parties — including 47 state attorneys general, former FDA commissioners, members of Congress, constitutional experts and editors of The New England Journal of Medicine — have just filed their own briefs arguing against preemption....

The background: During an emergency room hospital visit, Diana Levine was given a Wyeth nausea med called Phenergan, which was administered improperly and caused the Vermont musician to lose her right arm below the elbow. She successfully argued that, even though labeling complied with FDA requirements, the adequacy of the warning still wasn’t established for a particular method of administering the drug.

And she contended Wyeth wasn’t prevented from adding or strengthening the warning on the label, even though the FDA rejected a proposed change. Levine was awarded more than $6 million and, despite appeals, the Vermont Supreme Court sided with her. But Wyeth has appealed again and now the US Supreme Court will review the case.

Wyeth’s defense hinges on preemption — the legal notion that FDA approval of a drug supercedes state law claims challenging safety, efficacy, or labeling."

See the whole article here, with links to lots of related information and briefs.

What is a medical error? Here's a list of 28 things that should never happen in a hospital

This list of 28 errors that should never happen is part of an article on MSNBC: More states shred bills for awful medical errors. The list is created by the National Quality Forum, a nonprofit health care safety agency, it includes:

1. Surgery on the wrong body part.
2. Surgery on the wrong patient.
3. Wrong surgical procedure performed on a patient.
4. Object left in patient after surgery.
5. Death of patient who had been generally healthy during or immediately after surgery for a localized problem.
6. Patient death or serious disability associated with the use of contaminated drugs, devices or biologics.
7. Patient death or serious disability associated with the misuse or malfunction of a device.
8. Patient death or serious disability associated with intravascular air embolism.
9. Infant discharged to wrong person.
10. Patient death or serious disability associated with patient disappearing for more than four hours.
11. Patient suicide or attempted suicide resulting in serious disability.
12. Patient death or serious disability associated with a medication error.
13. Patient death or serious disability associated with transfusion of blood or blood product of the wrong type.
14. Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy.
15. Patient death or serious disability associated with the onset of hypoglycemia, a drop in blood sugar.
16. Death or serious disability associated with failure to identify and treat hyperbilirubinemia, a blood abnormality, in newborns.
17. Severe pressure ulcers acquired in the hospital.
18. Patient death or serious disability due to spinal manipulative therapy.
19. Patient death or serious disability associated with an electric shock.
20. Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances.
21. Patient death or serious disability associated with a burn in the hospital.
22. Patient death associated with a fall suffered in the hospital.
23. Patient death or serious disability associated with the use of restraints or bedrails.
24. Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist or other licensed healthcare provider.
25. Abduction of a patient.
26. Sexual assault on a patient.
27. Death or significant injury of a patient or staff member resulting from a physical assault in the hospital.
28. Artificial insemination with the wrong donor sperm or donor egg.

Currently, according to the report, hospitals in 23 states don't charge patients for these errors. Gee, that's nice of them, huh?

See full article here, which includes a nice interactive graphic to view medical error billing policies/laws by state.

California Jury Awards $8.5 Million But Medical Malpractice Limits Reduce Award

The San Jose Mercury News reports from Modesto, CA that:

"A jury has awarded $8.5 million to the widow of a man who died on the day a surgeon was going to discharge him from the hospital.

Because of medical malpractice limits, 38-year-old Holly Stinnett likely will receive only $1.6 million of that amount."

See news account here.

In Massachusetts: Most "Wrong-Spot Surgeries" Are Spinal

Today's Boston Globe carries this article, Most surgery in wrong spot done on spine, which states since 2006, Mass. surgeons have operated in the wrong location on patients 38 times — 11 of those times were spinal surgeries. See full article here...

New AHRQ Study Finds Surgical Errors Cost Nearly $1.5 Billion Annually

Potentially preventable medical errors that occur during or after surgery may cost employers nearly $1.5 billion a year, according to new estimates by the Department of Health & Human Services' (HHS) Agency for Healthcare Research and Quality (AHRQ).

In a study published in the July 28 issue of the journal Health Services Research, AHRQ's William E. Encinosa, Ph.D., and Fred J. Hellinger, Ph.D., found that insurers paid an additional $28,218 (52 percent more) and an additional $19,480 (48 percent more) for surgery patients who experienced acute respiratory failure or post-operative infections, respectively, compared with patients who did not experience either error.

The authors also found these additional costs for surgery patients who experienced the following medical errors compared with those who did not:

• Nursing care associated with medical errors, including pressure ulcers and hip fractures—$12,196 (33 percent more).
• Metabolic problems associated with medical errors, including kidney failure or uncontrolled blood sugar—$11,797 (32 percent more).
• Blood clots or other vascular or pulmonary problems associated with medical errors—$7,838 (25 percent more).
• Wound opening associated with medical errors—$1,426 (6 percent more).

See press release for more details.

Pittsburgh Med-Mal Jury Finds Hospital Negligent, Awards $0 Damages

This via Law.com's The Legal Intelligencer...

"Pittsburgh attorneys are seeking a new trial in a medical malpractice case in which a jury found a hospital negligent in a patient's death but awarded $0 survival damages because the jury said "no amount of damages will adequately punish" the hospital."

According to the article, Med-Mal Jury Says 'No Amount' Will Adequately Punish Hospital,

"After eight days of testimony in the case of Rettger v. UPMC Shadyside, it is the unanimous opinion of the jury that no amount of damages will adequately punish UPMC."

Read full article...

Ouch! Surgeon Apologizes for Operating on Wrong Side

To err is human; to apologize divine? A surgeon in Boston recently operated on the wrong side of a patient (see Boston Globe blog entry: Surgeon operates on patient's wrong side) despite much effort by the industry and Beth Deaconess Medical Center to avoid just this type of medical error through use of a "time out" and other practices and procedures.

The error was discovered during recovery, and the surgeon told the patient about the error and apologized. As of the writing of this blog, the patient had not decided whether to have the correct operation — or at which hospital. See full account here...

ABA Medical Malpractice Media Kit - Good Backgrounder

While these resources are not extremely fresh, they are part of the current ABA media kit on medical malpractice. This mini-site includes, ABA commentary and policy/letters as well links to resources including, but not limited to:

• Medical Malpractice FAQ
• The ABA on Federal Legislation to Limit a Patient’s Right to Compensation
• A Harvard School of Public Health study that Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits

and more...

RI Jury Awards $2 Million for Medical Malpractice

PROVIDENCE — A jury has awarded $2 million to a Warwick, RI, man who claimed he suffered brain damage due to substandard care after open heart surgery at Rhode Island Hospital. A Superior Court jury awarded him $2 million following nearly two days of deliberation and a 19-day trial, according to this Providence Journal report. "With interest, the award could total up to $3.6 million, according to court documents," states the article.

Top Med Mal Verdicts & Settlements in MA for 2008*

This via Law Links | Health Links: Massachusetts Lawyers Weekly has compiled its Top Verdicts & Settlements for 2008 (* as of its June 2, 2008 issue) and medical malpractice lawsuits are again prominent. Four of the top five settlements were medical malpractice cases:

$6 million for birth injury
$5 million for delay in diagnosis of cancer
$5 million for misdiagnosed cardiac arrest
$4.85 million for birth injury

With the fifth being a fishing accident.

Of the top five verdicts, three were personal injury lawsuits, one is a medical malpractice case ($9.1 million for medical negligence related to thyroid surgery) and one is a patent infringement case. Boston med mal law firm Lubin & Meyer represented plaintiffs in 4 of the 5 largest medical malpractice related verdicts and settlements for 2008 so far this year. Halstrom Law Offices represented the other settlement.

Milwaukee Jury Awards $10 Million in Hospital Malpractice

The Milwaukee Journal Sentinel reports on a jury award for a man with multiple sclerosis who suffered injury as the result of a spinal injection while in the hospital. According to the report, nearly half the award is for pain and suffering. It is interesting to note that the injury occurred shortly before a $750,000 cap on damages for pain and suffering went into effect. For more information, go to the article: $10 million awarded in hospital injury case.

North Carolina To Publish Med Mal Data?

The News & Observer reports that the North Carolina Medical Board proposes posting physician malpractice data to the web in an article: Doctors fight malpractice Web site.

"The Web site would note that malpractice payments don't always suggest negligence. And it would note that some specialities, such as obstetrics and neurosurgery, tend to draw more lawsuits than other fields.

The site would also state whether the medical board had publicly disciplined the doctor, giving an indication of whether the malpractice payment was for negligence.

If the board approves the rule after a public hearing June 30, then by next year, North Carolina could become the 23rd state to disclose all medical malpractice payments."

New York Hospital Ordered to Pay $17M for Injury to Mother During Caesarean

ROCHESTER, N.Y. — Legal Newsline reports that A New York jury ordered Strong Memorial Hospital to pay a former patient more than $17 million in a medical malpractice lawsuit. The case involved a woman who claimed a Caesarean delivery damaged her organs.

"Her attorneys claimed that because of poor planning, doctors at the Rochester, N.Y., hospital cut the connection between her pancreas and bladder during the Caesarean delivery, causing pancreatic fluid and urine to leak into her abdominal cavity. The acidic fluid burned her organs, ate through her abdominal wall and required doctors to remove her pancreas, the Rochester (N.Y.) Democrat and Chronicle reported."

Jury Awards $4.45M for Medical Malpractice by ER Doc in Indiana

HAMMOND, IN — The Times of Munster Indiana (May 20, 2008) reports that a jury awared $4.45 million to a family after finding an emergency doctor responsible for medical malpractice in the death of 45-year-old man who "died of an abdominal aortic aneurysm about 12 hours after being discharged from St. Catherine Hospital in East Chicago." Read the full article for details.

State Roundup: Medical Malpractice Laws

Louisiana: The Louisiana House rejected legislation that would have expanded coverage under the state's medical malpractice laws, reports the Baton Rouge Advocate. At issue was language that included in the definition of malpractice, "problems that occur when transporting or monitoring patients as well as failure to attend to patients' personal hygiene," according to the Kaiser Daily Health Policy Report — source for this article. Opponents said such legislation would allow overburden the system with nursing home negligence as medical malpractice.

Tennessee: The Tennessee state Senate approved legislation to make frivolous medical malpractice lawsuits more difficult to file, the Tennessean reports. The bill now moves to Gov. Phil Bredesen (D) to be signed into law. The legislation would require attorneys to have a qualified medical expert sign off on the merits of any malpractice case within 90 days of filing suit.

Oregon: The Insurance Journal reports that the Oregon Supreme Court has upheld a five-year statute of limitations on medical malpractice lawsuits involving minors.

Access To Medical Records A Problem Many Patients Say

According to an article in USA TODAY, a common complaint among patients and families nationwide is, "It can be difficult to obtain medical records from hospitals and other treatment facilities after something goes wrong."

In 2006, USA TODAY created a Patient Safety website (patientsafety.usatoday.com) to allow readers a forum for concerns over their medical care. Missing and disputed medical records is the most common area of complaints.

"Under federal law, every patient or a designated representative has the right to see and copy the patient's medical records."

Read the full article by clicking on the link below:
Patients often struggle for access to medical records.

Busy Week for Boston Med Mal Firm

Boston malpractice law firm Lubin & Meyer had two verdicts make headlines this week. Both are considered to be among the largest verdicts for 2008 in NH and MA respectively...

MANCHESTER, NH – (March 8, 2008) Blinded man awarded $1.75m via New Hampshire Union Leader

"The failure of a Concord emergency room surgeon to stabilize an accident victim before surgery resulted in one of the largest jury awards for medical malpractice in New Hampshire. A Merrimack County Superior Court jury Thursday awarded Randolph Hinz, 42, of Warner, $1.75 million plus about $200,000 in interest because he has been blind since the emergency surgery, according to his attorney, Suzanne McDonough of Lubin and Meyer PC of Boston."

An appeal is likely, according to a Boston Globe report.

BOSTON, MA - (March 4, 2008) 2 doctors found negligent in death via Boston Globe

"A Middlesex County jury awarded $14.5 million yesterday to the family of a 30-year-old Chelmsford woman who died the day after thyroid surgery at Brockton Hospital from uncontrolled bleeding that the plaintiff's lawyers said stemmed from air trapped in her abdomen.... After deliberating less than five hours, a Superior Court jury in Lowell concluded that two surgeons and their medical practice were negligent ... said [plaintiff's attorney] Robert Higgins..."

The Boston Globe article reported that "the award will undoubtedly be one of the biggest in a medical malpractice case in Massachusetts this year, if not the biggest, said David L. Yas, publisher and editor of Massachusetts Lawyers Weekly, which monitors such awards."

Massachusetts: Medical Malpractice Statute of Repose Doesn't Apply to Fraud Claim

Massachusetts Lawyers Weekly reports that a lawsuit against a doctor and nurse can go forward...

"A doctor and a nurse who allegedly falsified medical records to hide evidence of malpractice during the delivery of a child could be sued even though the seven-year statute of repose for medical negligence claims had run, the Appeals Court has ruled. The defendant doctor and nurse argued that the core of the fraud claim involved allegations of improper medical treatment and was thus subject to G.L.c. 231, Sect. 60D, and G.L.c. 260, Sect. 4, the med-mal statutes of repose."

The appeals court stated: "Although statutes of repose are meant to protect health care providers from having to defend claims long after evidence is lost, witnesses have disappeared, or memories failed, …they do not preclude the filing of separate, otherwise valid, causes of action directly addressing alleged fraudulent behavior that allowed the invocation of such statutory protections in the first instance..." according the the Lawyers Weekly article. (See full article.)

See full opinion at: Chace, et al. v. Curran, et al., Lawyers Weekly No. 11-026-08.