Massachusetts Injury Lawyer Blog

The Massachusetts Supreme Judicial Court has ruled that non-patient claims for personal injury resulting from medical malpractice must first be presented to the Massachusetts medical malpractice tribunal.  The tribunal's job is to review medical malpractice personal injury claims and decide whether there was actual medical malpractice involved or if the injury was merely an unfortunate medical result.

The decision concerned a hospital worker who was killed when a heavily medicated woman lost control of her car and drove it into an entrance to the Brockton Hospital where the victim worked.  The victim's wife sued the doctors for her husband's wrongful death, alleging they had failed to warn the woman that it was dangerous to drive while on her medications.

Ordinarily, medical negligence cases may only be brought by a patient against his or her medical provider. However, third parties may bring claims against a provider if the provider failed to warn the patient of the effects of medication, and the patient then injured the third party. The exception is a narrow one.

The case clarifies pre-trial procedures in such third party cases, as it was unclear whether or not an injured non-patient was required to bring their medical malpractice claim before the tribunal.  However, with today's Massachusetts Supreme Judicial Court ruling, it is now clear that any person looking to bring a claim for personal injury resulting from medical malpractice must first present their claim to the medical malpractice tribunal, whether or not they were the patient.

The case was Vasa v. Compass Medical, P.C., SJC-10457, March 2, 2010.

Continue reading "Massachusetts Court Requires Medical Malpractice Tribunal in Third Party Claims" »

Radiation technology is on the rise, delivering both higher and more precise doses of radiation treatment and better detecting diseases, including cancer. However, as technology improves, patient safeguards and hospital systems are lagging behind, resulting in medical errors that go unnoticed. While there are no recent reports of error, given the large number of cancer treatments as specialized centers, patients in Massachusetts are certainly at risk for excess radiation exposure.

At a New Jersey hospital, 36 cancer patients were overradiated by a medical team that was inexperienced in operating new radiation technology.  The mistakes continued for months because the hospital did not have a system for catching the errors.  A man in Louisiana received 38 doses of overradiation because the machine used to treat him was so new that the hospital made a miscalculation, even with training instructors still on the grounds.

Although radiation mistakes resulting in personal injuries are rare and accident reports show that some mistakes could have been detected through standard protocol checking, some oncologists are warning that safety procedures need updating.  Adding to the safety concerns, hospitals may not have sufficient funding to operate the cutting edge technology correctly and manufacturers sometimes sell machines before computer errors have been resolved.  Mistakes in the application of radiation technology also raise questions about the training and supervision of medical physicists and radiation therapists.  Licensing and registration requirements vary greatly from state to state, and 16 states do not require licensing or registration at all. 

The radiation technology regulation regime creates the potential for injuries as well.  Laws protecting radiation patients are patchwork and poorly enforced, meaning hospitals that cause injury and fail to report mistakes go unpunished.  Additionally, the marketplace for radiation technology is largely unregulated.  New products receive only a cursory review by government regulators.  In a market where new technology is the key to attracting business, both manufacturers and hospitals are eager for new products quickly, even if that means technology with existing errors and operational uncertainties.

Over radiation can cause skin reactions, like rashes, fatigue, diarrhea, nausea and vomiting, trouble swallowing, weakness, headache, and hair loss.  Radiation can also increase the chance of getting certain cancers. 

For more information on radiation technology and its risks, see the New York Times article The Radiation Boom.  For more information on the risks and side effects of radiation treatment, see the Mayo Clinic website. 

Continue reading "As Radiation Technology Improves, Patient Safety is Left Behind" »

Anne Mitchell, a nurse from west Texas, was acquitted today for filing a complaint with the Texas Medical Board (TMB) alleging that a doctor she worked with was endangering his patients. Mitchell had filed an anonymous complaint that an emergency room physician, Dr. Rolando G. Arafiles Jr., at the Winkler County Memorial Hospital, had been improperly prescribing medications and doing surgical procedures when he had no surgical privileges.

Rather than being recognized as a whiste-blower concerned about the health and welfare of the patients, she was actually arrested and charged with the crime of "misuse of official information," which is a felony in Texas.

The trial took four days, but the jury needed less than an hour to acquit Nurse Mitchell.

Though this was a victory for a conscientious nurse, she has lost her job and her reputation has been damaged. The prosecution will tend to chill the efforts of others who are witnesses to medical mistakes.

Could this happen in Massachusetts? The Texas case appears to be unique, but there are other pressures brought on medical staff to look the other way when medical mistakes are made, and strict laws on so called "peer review" cloak investigations with nearly absolute privacy.

Boston medical malpractice attorney Marc Breakstone called the acquittal a victory for consumers everywhere. Breakstone pointed out, "Each year over 200,000 Americans are killed by medical malpractice and hospital infections. We need honest medical staff to bring these issues to light."

He added, "We have seen a number of medical malpractice cases in which doctors and other medical providers have attempted to hide the facts by altering medical records, and are aware of other cases where records have been 'lost.' Sometimes the truth never comes out, other times the medical mistakes are revealed."

Back in Texas Nurse Mitchell and another nurse who were fired are looking for justice. They want to clear their good names, and want compensation for this prosecution.

More Information

Whistle-Blowing Nurse Is Acquitted in Texas, NY Times, Feb 11, 2010

The state Attorney General is in the preliminary stage of a systematic review of the Massachusetts healthcare system and has already made some startling discoveries about healthcare costs. Martha Coakley's office found significant cost variations among hospitals and physicians based on factors other than quality of care.  Although the investigation is still ongoing, Attorney General Coakley has expressed concern about affordable and accessible healthcare if the identified systematic failures are not addressed and has urged policymakers to implement cost containtment measures.

As part of the investigation, the Attorney General's office reviewed documents from insurance companies and healthcare providers representing the bulk of the healthcare market in the state to examine healthcare costs and costs drivers. Specifically, the Attorney General examined insurance contract prices between insurance providers and hospitals between 2004 and 2008. The concern is that although Massachusetts has improved access to the healthcare market--97 percent of the population has healthcare coverage--this improvement could be compromised by cost increases.  Attorney General Coakley warned if left unchecked, price disparities in the market could create a  provider marketplace dominated by expensive "haves" as lower priced "have-nots" are forced to close down or consolidate with higher priced providers. 

The initial findings of the investigation showed that:

• In the same geographic area and across similar levels of service, prices paid by insurance carriers to hospitals and physician groups varied, at the extreme in excess of 200%.
• Price variations are not correlated with quality of care, complexity of the illness or population being served, extent of patients on Medicare or Medicaid, or whether the provider is an academic or research facility.
• Price variations are correlated with the relative market position of the hospital or physician group as compared to hospitals within a geographic region or within a group of academic medical centers.
• Price variations on a per-member, per-month basis are not correlated with the method of payment (e.g. globally or fee-for-service).
• Price increases cause most of the healthcare cost increases in the state.
• Contracting practices distort the commercial healthcare market and reinforce disparities in pricing.
• The report noted that health care costs are increasing much faster than wages.

The investigation is expected to be completed by March 16th and the findings will be presented to the Massachusetts Office of Health and Human Services, Division of Healthcare Finance and Policy.   

For more information on Massachusetts' unique approach to healthcare access, see the following website on the state mandate and statute.  If you need to obtain health insurance coverage, see the following guide to choosing a health plan.

If you have questions about medical negligence or medical malpractice, please feel free to contact our firm for a free consultation at 800-379-1244 

In a recent article in the medical journal Radiology, a study of several hundred radiologists reveals that mammographers may be reluctant to reveal medical mistakes, even if the mistakes relate to potential risk of breast cancer.

In the study the radiologists were given a hypothetical question. They were asked to assume that films were read out of order; that the calcifications in the films were actually increasing and not decreasing, and that they discovered the mistake after initially reading and reporting the results to their patients. Calcifications may be associated with the growth of breast tumors.

Only 14% of the physicians said they would definitely disclose the error. Twenty-six percent said they would probably report the error. The rest would either disclosed the error only if asked by the patient, or not at all.

In the hypothetical conversations with the patients after the mistake was revealed, only 15% of the doctors polled would admit that they made a mistake during the reading of the films.

Failure to diagnose breast cancer due to mammography errors is a common cause of medical malpractice claims, and almost half of the doctors in the study had been party to a suit alleging negligence.

The authors concluded that even though there is a trend towards more physician openness regarding mistakes, disclosure is "the exception, not the rule."

More Information 

Radiology: Radiologists reluctant to disclose mammo errors to patients. www.healthimaging.com. October 30, 2009.

 

Continue reading "Radiologists May be Reluctant to Admit Medical Errors to Patients" »

In what is being called the largest prescription drug criminal fraud case in U.S. history, Pfizer will pay $2.3 billion in civil and criminal penalties to compensate taxpayers, patients and doctors across the United States for illegal drug marketing.

A government investigation revealed that Pfizer promoted the sale of Bextra - an anti-inflammatory drug that Pfizer pulled from the market in 2005 - for uses and dosages that the FDA specifically declined to approve due to safety concerns. Despite the lack of approval, Pfizer literally wined and dined physicians around the country to promote the "off-label" uses of its drug. As a result, Pfizer will pay a criminal fine of $1.3 billion.

In addition, Pfizer agreed to a $1 billion civil settlement to resolve allegations under the civil False Claims Act that the company illegally promoted four drugs - Bextra; Geodon, an anti-psychotic drug; Zyvox, an antibiotic; and Lyrica, an anti-epileptic drug - and caused false claims to be submitted to government health care programs for uses that were not medically accepted indications.

Massachusetts will receive $14.7 million, which will go back into the state's Medicaid program.

The settlement comes just weeks before a controversial prescription drug-related murder case is scheduled to go to trial in Massachusetts. In 2007, Michael and Carolyn Riley of Hull, Massachusetts, were charged with first-degree murder in the death of their four-year-old daughter, whom allegedly died of a prescription drug overdose of Clonidine and other prescription drugs that were given to her by her parents. The Rileys have brought a medical malpractice claim against their daughter's Boston doctor, who prescribed Clonidine for a use which was not approved by the FDA. That case is pending.

The Pfizer settlement and the upcoming trial of Michael and Carolyn Riley are a reminder of the damage that prescription drugs can cause when they are prescribed for uses which have not been approved. About 1.3 million people are harmed as a result of a medication error every year in the United States.

For more information about medication errors, click here.

One would have hoped that, by now, the majority of reasonably enlightened elected leaders would not be fooled into believing that changing medical malpractice laws would affect the cost of health care significantly. That should be especially true for Massachusetts representatives and senators, who should not be swayed by exaggerated claims of "frivolous lawsuits" and "defensive medicine." These arguments have repeatedly been debunked, but somehow they survive.

So one news report from this weekend was particularly disappointing. The New York Times reports that on the television show "This Week with George Stephanopolous" (August 30, 2009)  Senator Orin Hatch (R-UT) said, "We've got to find some way of getting rid of the frivolous cases, and most of them are." Shockingly, Senator John Kerry (D-MA) replied, "And that's doable, most definitely."

The NY Times article, "Would Tort Reform Lower Costs?" has an excellent interview with Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law. Professor Baker is also the author of "The Medical Malpractice Myth." Some of the points Professor Baker made in the interview:

• "Tort reform" does not bring down the cost of health care because the number of claims is actually very small compared to the total cost of health care (around 1%)
  
• The number of claims has been stable for over twenty years so the rate of law suits is actually declining
• Only 4-7% of those who are injured by doctors or other medical professionals make claims for medical malpractice resulting from preventable medical errors.
  
• There are not frivolous medical malpractice cases. Cases are screened carefully because they are very expensive to litigate.
• Defensive medicine is only around 2.5% of the cost of health care, but that cannot be separated out from the practice of many physicians to order extra tests to be sure they are screening patients carefully and properly. There is little evidence that doctors are just ordering tests to avoid lawsuits.
• One of the major reasons we have such expensive health care is the administrative costs of private health care insurance.

A more meaningful system of reform would require prompt notification of patients when they are injured as a result of medical errors. Patients have the right to know how and why they were harmed. And, as Professor Baker suggested, there should be improved legal mechanisms for those with non-catastrophic injuries to recover for their damages.

We strongly believe that trading the rights of people injured as a result of medical negligence is absolutely wrong. We urge our readers to contact their legislators, and to insist that changes in medical malpractice laws be left out completely for any health care reform legislation.

We should reform health care and health insurance in the United States. We should make health care more affordable and accessible. But we should not believe the medical malpractice myths perpetuated by the medical lobby. And we should not take away the rights of injured people.

The Massachusetts Supreme Judicial Court ruled today that a hospital does not owe a third party a duty of care for injuries arising as a result of hospital treatment of a patient. Accordingly, a police officer who suffered personal injuries in a car accident responding to a pedestrian accident scene, cannot recover against the hospital after its patient was killed in the pedestrian accident.

The case was brought by Leavitt, a police officer for the town of Whitman, MA. He received an emergency call to respond to the scene of an accident where a pedestrian had been struck and killed by a car. On his way to the accident, Leavitt's cruiser was struck, and he was seriously and permanently injured.

It was determined that the pedestrian had been treated earlier that day at the Brockton Hospital, where he had undergone a colonoscopy. As part of the procedure, he had received narcotic medication. He was allowed to leave the hospital without an escort, which was against hospital policy and, plaintiff alleged, good and accepted medical practice.

The court found that the hospital owed no duty of the plaintiff. Specifically, the court ruled that the theories of general negligence, of a special relationship, and of a voluntary assumption of a duty of care were all without merit. The duty of care in a special relationship is extremely limited in Massachusetts, and there is, the court concluded, simply no duty to control a patient who might be impaired by medication.

Going further, the court also concluded that the incident was outside the foreseeable risk of harm associated with the colonoscopy procedure. The court also rejected the application of the rescue doctrine, deciding that the risk would not reasonably be anticipated to arise from the rescue.

Importantly, the court did not disturb its earlier ruling in the case of Coombes v. Florio, 450 Mass. 543 (2006). In that case, the court held that a doctor may be liable for injuries caused to a third person if it is determined that the physician negligently failed to warn the patient of the effects of treatment. The court distinguished Coombes because no failure to warn was alleged in the case against the Brockton Hospital.

The name of the case is Leavitt v. Brockton Hospital, Inc., SJC-10296 (2009). 

As the popularity of medical spas has sky rocketed, so have the injuries and complications suffered by customers of the spas. Patients and practitioners alike tend to view the cosmetic procedures completed at medical spas as less serious than those of traditional hospitals. However, there are risks which mainly stem from lack of training and state-licensing guidelines. That's why some organizations and legislators are pushing for stricter regulations and more intensive educational programs.

After visiting one such spa in Chicago, a woman was told by hospital physicians that she may need to have her leg amputated after a routine mesotherapy, also known as lipodissolve, went awry and left her with severe dry gangrene. Luckily, the infection cleared before that was necessary, but she is still left with severe scarring on both of her legs.

A North Carolina medical spa is being sued by three women who all suffered kidney failure due after receiving buttocks-enhancing injections that were reportedly administered without proper medical supervision.

And the FDA has reported the deaths of two people as a result of misuse of topical anesthetics during laser hair removal procedures. Laser and intense pulsed light (IPL) procedures have also been known to casue permanent scarring, skin discoloration, and serious burns.

Fortunately for Massachusetts residents, state regulators are already beginning to address the problem. In a published recommendation, the Massachusetts State Board of Registration's Medical Spa Task Force suggested that legislation be developed to require the "Department of Public Health to license medical spas for renewable terms of two years, similar to clinic and nursing home licensure already performed by the Department."

Medical malpractice insurance companies are also helping to shape the industry; many are requiring physicians who are not formally trained in aesthetic procedures to attain accredited Continuing Medical Education (CME) credits in aesthetic medicine before being eligible for favorable insurance coverage.

While all of this is certainly a step in the right direction, Massachusetts medical spas are not currently licensed. Nor are there state-required education criteria specifically related to aesthetic procedures. Nor is there an official "board certification" available for the field of aesthetic medicine, making it more difficult to discern which practitioners are reputable. That is why it is especially important that patients thoroughly research a facility before undergoing a procedure.

Medical malpractice is a reality, but the lack of regulation places patients who visit medical spas, wellness centers, and anti-aging clinics at a higher risk than necessary. Massachusetts needs to take action to protect patients and clients of these spas.

Continue reading "Massachusetts Medical Spas Need More Regulation to Prevent Injuries" »

Two recent surgical errors, followed by serious medical complications, have led to the closing, at least temorarily,  of the pediatric heart surgery unit at the Massachusetts General Hospital. In addition, state public health officials are investigating the circumstances of the errors.

The recent complications included a baby who had surgery in January and one who had surgery in March. Both babies survived, but the baby from the January procedure was reported to have neurological complications. There was also one infant death in the last twenty months.

According to news reports, the Boston hospital opened a specialized pediatric cardiac surgery unit two years ago after hiring a pediatric heart surgeon. The goal was to have a unit that specialized in heart surgery on children, but the program apparently never took off. The unit was performing only four or five surgeries per month, far below the rate considered appropriate to keep a service properly experienced.

The internal investigation at Massachusetts General Hospital may also lead to an on-site investigation by the Department of Public Health, which could lead to recommendations for improvements. The investigations should reveal whether the complications resulted from preventable surgical errors or other medical malpractice.

More Information

MGH halts a pediatric program, Boston Globe, April 17, 2009

Continue reading "Errors and Complications Lead to Closing of Pediatric Cardiac Surgery Unit at Massachusetts General Hospital" »

The Massachusetts Department of Public Health has released its first annual report of Serious Reportable Events at Massachusetts acute care hospitals. The report reveals that there were over 300 serious events resulting in personal injury and at least 19 deaths, including serious surgical errors, falls, and medication errors. The report reflects some aspects of the causes of medical malpractice cases in Massachusetts.

Guidelines for reporting serious events were adopted by the Massachusetts Department of Public Health and implemented in 2008. Under the guidlines, Massachusetts hospitals are required to report six general categories of events, including:

• Surgical errors
• Care management problems (medications errors, pressure ulcers)
• Product or device-related complications
• Patient protection problems (suicide protection)
• Environmental problems, including slips and falls
• Criminal events

Slip and fall injuries, particularly among the elderly, constituted the most frequent problem at hospitals, with over 230 events statewide. These accidents occurred when patients were dizzy from medication, had vision problems, were not protected from falling from their beds, or did not have needed assistance.

Surgical problems continue to occur at shocking rates. The report includes 32 instances of objects being left in surgical patients, 24 wrong site surgeries (for example, wrong leg operated on), 5 wrong procedure injuries, and 1 wrong patient injury.

There were a dozen serious medication errors and a dozen pressure sore problems reported as well.

There can be little doubt that this report reflects only a portion of the serious medical events that should be reported. We say that for a couple of reasons. First, this was the first year of reporting, and hospital administrators are still learning what needs to be reported. Some hospitals have no doubt been more transparent and vigilant in their reporting and their efforts to reduce error. (Beth Israel Hospital under Dr. Paul Levy is the leader in this respect.) It is unlikely that the bed sores have been accurately reported, given the low number (12) versus the enormous patient population.

Transparency and accident reporting are two keys to improving patient safety at hospitals. Reduction in medical malpractice from surgical errors can be achieved with more time spent among the surgical staff double-checking to ensure the correct patient, the correct procedure, and the correct site of the surgery. We have previously discussed how surgical safety checklists reduce the rate of medical malpractice, including the rate of serious injuries and wrongful death.

Continue reading "Medical Errors Reported for Massachusetts Hospitals--Causes of Serious Injuries and Deaths Identified" »

This week, two very important studies regarding prostate cancer screening were published in the New England Journal of Medicine. The studies concluded, essentially, that screening and early detection of prostate cancer with the PSA test does not reduce morbidity or mortality in men.

The studies are an unusual contrast to the notion that early detection and treatment benefit one's health. Ordinarily, a delay in cancer diagnosis has a serious impact, and can result in claims for medical malpractice, personal injury, and wrongful death. This may not always be the case with current prostate cancer screening tests.

There is no doubt that in some cases, the PSA test detects aggressive forms of cancer at an early stage, allowing men to undergo timely and lifesaving treatments. However, the majority of prostate cancers are slow growing and do not adversely affect a man's health or lifestyle, particularly in elderly men.

Unfortunately, treatment for prostate cancer is invasive and includes biopsies, surgeries, and other treatments, which may result in urinary incontinence and/or erectile dysfunction. Radiation treatments can cause additional complications. The question then, based on the results of the recent studies, is whether the benefit treating a prostate cancer (removing a potentially harmless cancer) outweighs the risk of the treatment itself (incontinence, erectile dysfunction). The treatment may actually be unneeded, and a cause of unnecessary injury.

The studies published in the New England Journal of Medicine seem to indicate that for most men, there is no proof that biopsies, surgeries, and other treatments actually extend the man's life. In fact, the evidence proving that the benefits of prostate cancer screening outweigh the risks is lacking.

It is currently recommended that men between the ages of 40 and 75 undergo PSA testing. However, the results of these studies call into question the usefulness of the screening. Many urologists are now recommending the decision to undergo PSA testing and/or prostate cancer treatment be made on an individual basis until more is know regarding the risks and benefits of PSA screening.

For More Information:

Perspective Roundtable: Screening for Prostate Cancer, video discussoin, March 19, 2009

Perspective Roundable: Screening for Prostate Cancer, New England Journal of Medicine, March 19, 2009 (transcript)

 

Continue reading "Effectiveness of Prostate Test Questioned in Helping Cancer Patients" »

If you are traveling on an airplane, you can be comforted by the fact that the pilots and co-pilots run through pre-flight and pre-landing checklists designed to prevent accidents and injuries. So wouldn't you think the same techniques would be used in hospitals for critical surgical procedures? Well. . . not necessarily.

In an article published in the New England Journal of Medicine today, researchers demonstrated that the use of a simple checklist for surgical procedures cuts the rate of complication by 36%. The checklist reduced the rate of infection, wrong site surgery, the need for re-operation, post-operative complications, and death. The study demonstrated improvements in each of the eight countries involved in the study. If implemented properly, the number of injuries and wrongful deaths caused by medical malpractice would decline.

The authors report that roughly half of surgical complications are avoidable. The authors utilized a 19-step checklist to improve verification, to require surgical team members to introduce themselves and share patient concerns, to verify antibiotic coverage, and to document concerns regarding the post-operative recovery period.  The first part of the list is designed to reduce wrong patient, wrong operation, wrong site complications which are still remarkably common. Requiring the team members to introduce themselves to each other increased teamwork and also reduced mistakes.

With such obvious improvements so readily available, one would think that hospitals and doctors would be jumping quickly onto this bandwagon. Not necessarily. Why not? Would a little more paperwork and a little extra time cut into profits? When patients' lives, health and safety are at stake, one would hope that hospitals would instead rush to implement these guidelines immediately. Implementing checklists are clearly one way to reduce injuries, death, and medical malpractice claims.

What you can do: The 19-step checklist has been been published on-line by the World Health Organization. Print a copy for yourself, and if you are going to be having surgery, make sure your doctors use either your form, or are already using one just like it.

Continue reading "Massachusetts Patients Should Demand Surgical Safety Checklists" »

Thanks to an excellent series of articles in the Boston Globe, we now have some clear insight into what is driving the unconscionable increases in health insurance in Massachusetts: Secret agreements between the Partners HealthCare system and insurance companies. And while doctors and their insurance companies are quick to blame medical malpractice cases for exploding health care costs, the real increases can easily be blamed on the profit-driven expansion at Partners and increases in profits for insurance companies.

As the Globe has reported in a series of articles on the power and growth of Partners, the hospital corporation is now so large and powerful that it can freely bully insurance companies. The first up, Blue Cross and Blue Shield, which freely agreed to the demands of Partners in a "gentlemen's agreement" sealed with a handshake. A handshake? Yup, their lawyers were apparently too nervous to put the deal in writing.

The result: an increase of 70% in Blue Cross insurance rates over the last eight year. Not surpisingly, their profits have soared. If you are like most Massachusetts residents, you have not seen pay increases approaching anything like that. And most hospitals that compete with the Partners affiliates have not seen similar increases, instead suffering blows to their bottom lines.

Using its clout, according to the Globe report, Partners also whipped other insurance companies into line, threatening to stop accepting patients insured by Tufts Health Plan, and others, unless they gave Partners a major boost in reimbursement rates.

Where is the money going? Partners keeps its profit margin low by spending hundreds of millions on expansions. The cost of the new cardiac center at the Brigham and Women's Hospital was $382 million. A new building is popping up at Massachusetts General Hospital at the price of $686 million.   These numbers all dwarf the costs of medical malpractice claims in Massachusetts. (And whatever happened to the notion that these giant health care corporations were supposed to be "non-profit"?)

What does this mean for Massachusetts consumers? Your health insurance costs will continue to skyrocket, Partners will continue to corner the market for medical care in Massachusetts, their doctors will earn more, but the quality of your care will be no better and community hospitals will be threatened by Partners juggernaut. That's right, you pay more but get care that is no better than average, and lose health care choices in the bargain.

It is time for our legislators, the Governor, and our Attorney General to crack down on costs of health care that are driving Massachusetts consumers towards bankruptcy.

At Breakstone, White & Gluck we are concerned about health care quality, health care costs, and the truth about medical malpractice in Massachusetts. If you have a malpractice matter you would like to discuss with an experienced attorney, please contact us, toll free, at 800-379-1244.

More Information

A handshake that made medical history, Boston Globe, December 28, 2008 (third article in series)

Everyone knows about the hazards associated with falling asleep at the wheel of a car. Workers are told not to operate heavy equipment if tired or impaired. We all have first hand experience with the effects of sleep deprivation on clarity of thought and reaction time. Would you knowingly put your life in the hands of someone who is at the end of a 30-hour shift? Would you feel confident in the judgments of a young doctor in training who has just put in an 80 hour work week? Well, if you have received treatment at a major teaching hospital in Massachusetts or anywhere in the country, you probably have already done this.

You have probably already seen this reality depicted on popular television shows like Grey's Anatomy or ER showing the impossibly long shifts and adrenaline-pumping situations medical residents must face each week. Of course the show's writers throw in a lot of extra drama, but real medical residents do typically work 80-hour weeks that include 30-hour shifts--sometimes with little or no sleep.

Medical residency programs are designed to be rigorous, to prepare doctors for difficult situations and to expose them to as many medical procedures as possible over their 3-7 years in residency. There are teaching hospitals throughout Massachusetts, including Boston, Worcester, Springfield, Cambridge, Waltham, and Framingham.

Now a new report by the Institute of Medicine of the National Academies says that residents are not just tired, they are fatigued. And this fatigue is leading to preventable mistakes--medical mistakes that sometimes lead to wrongful death.

In 2003, the Accreditation Council for Graduate Medical Education limited the number of hours a resident could work to 80 hours per week. The new report is not looking to decrease this number, simply to regulate how the hours are carried out.

IMNA's report offers several concrete recommendations that will improve patient care and prevent many fatigue-related medical mistakes.

• Residents working a 30-hour shift should have at least a five-hour break after 16 hours of work.
  
• When residents "moonlight," or take on additional paid health care work, these hours should count toward their 80-hour cap.
• Experienced physicians should more closely supervise residents.
• The number of mandatory days off each month should be increased.
• When scheduling residents, an overlap period should be included between shifts to increase communication.

However, implementing these suggestions means that teaching hospitals would need an additional $1.7 billion in funding each year. This fact alone may keep the recommendations from becoming a reality, even though the cost would most likely be offset by the decrease in fatigue-related errors and medical malpractice claims. Costs aside, the people suffering are the patients who are receiving sub-standard treatment.

We'll just have to wait and see what happens to the IMNA's recommendations. For the time being, residents are still working while fatigued, which means that fatigue-related errors and injuries are occurring all the time.

If you have suffered an injury due to a resident's fatigue or any medical malpractice, contact the medical malpractice lawyers at Breakstone, White, and Gluck, P.C. We have years of experience in medical malpractice claims and our attorneys would be happy to discuss your case with you. Our toll free number is 800-379-1244, and there is no charge for our consultation.

More Resources

Resident Duty Hours: Enhancing Sleep, Supervision and Safety, Institute of Medicine, November 2008.