Articles Posted in Medical Malpractice

young surgery team in the operating room .As The Boston Globe continues to report on the unsafe practice of concurrent surgeries, we want to remind patients and health care consumers that you have legal rights when you seek medical treatment.

In 2015, The Boston Globe Spotlight Team reported on the practice of concurrent, overlapping surgeries at hospitals in Massachusetts and across the country. Concurrent surgery occurs when a surgeon has one patient still in surgery and starts a procedure on another patient. Patients were not informed of the practice.

This month, the U.S. Senate Finance Committee urged hospitals to clearly prohibit the practice.

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Poor communication between doctors and hospital staff hurts patients and causes many deaths, a new study reports. Electronic medical records should improve communication, but doctors are not always reading results.

Communication failures played a role in 30 percent of the medical malpractice cases examined by CRISCO Strategies of Boston. The study was released Monday.

The study reports on roughly a third of all paid medical malpractice claims nationwide, nearly 24,000 cases from 2009 to 2013. Over 7,000 cases involved communication failures which injured patients, including 1,744 resulting in wrongful death.

“Good communication in the medical record or in verbal reports is the hallmark of good medical care. We have seen many preventable deaths and serious injury cases that were the result of communication breakdowns,” Attorney Marc L. Breakstone said.

When Medical Mistakes May Happen

Electronic medical records may get doctors test results more promptly, but the study shows some are not reading them:

  • One woman’s cancer diagnosis was delayed for a full year. Her primary care doctor never read the lab result in her electronic medical record.
  • A patient was rushed to the emergency room and died after his lungs filled with blood. Less than two weeks earlier, his primary care doctor had referred him to a lung doctor. The two doctors failed to communicate about the lab results on the patient’s electronic medical record, which showed possible early congestive heart failure.

Many mistakes – 80 percent – happen as a result of miscommunication when doctors and medical staff transfer patient cases, according to the Joint Commission Center for Transforming Healthcare.

Across the country, 32 hospitals are trying to improve communication by adopting the I-PASS approach for how doctors and nurses communicate during shift changes, according to the medical publication STAT. One of these hospitals is Brigham and Women’s Hospital in Boston.

What Patients Can Take Away from This Study

Monitor Your Medical Records. If you have the option, monitor your medical records online. You will gain a better understanding of how your doctor and the medical practice approach your care. If you find a mistake, ask for a correction. On the other hand, if you do not have electronic access, remember you have the right to make a written request for medical records at any time.


When Shifts Change. Before the day of a surgery, ask when the surgeons and nurses change shifts. Ask what to expect if your procedure is delayed.


Patient Advocate. Bring someone you trust to your pre-operation appointment and to your procedure. Our article about the Massachusetts Patient’s Bill of Rights may be a helpful resource.


Research Online. Research if your doctor or surgeon has been disciplined or has paid medical malpractice claims in the Massachusetts Board of Registration database. You can also search Medicare’s Hospital Compare database for hospital information, ratings and practices.


Make Your Own Decision. Online databases and electronic medical records are important but make your own decision about your doctor’s communication. Observe their practices firsthand, ask questions and choose another doctor if you are concerned.

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20160127-rising-health-care-costs-300.jpgState officials have not lived up to mandates to maintain a website for consumers to compare pricing for medical procedures and doctor’s visits.

The Boston Globe detailed the problems with the website development this week. Meanwhile, the state’s Health Policy Commission recently released its “2015 Cost Trends Report.” The report noted less competition is driving rising health care costs, not higher quality care or other common measures of value.

Attorney David White, consumer advocate, said, “It is unfortunate that the Commonwealth is failing to get basic information to consumers. Health care costs vary so significantly from provider to provider. Consumers need every bit of help they can get to reduce the costs of care.”

White also said, “A very serious issue is how steeply costs vary between facilities for the same procedures. The report demonstrates that the fancy, expensive hospitals do not, on average, deliver significantly better care.”

The Website
The state’s health care reform law of 2006 required a website be established to inform the public about health care cost and quality of care. The website was also included in 2012 legislation. While there have been websites launched, no website is currently available.

As a result, consumers have no central resource to research the costs of a medical procedure or a doctor’s visit at different medical facilities. Pricing cannot be a factor in their decision-making process. The state’s Center for Health Information and Analysis is still deciding what information to include in the website, The Globe reported.

What Consumers Can Do
Many consumers can access some pricing information through websites developed by their health care plans. Contact your health insurance company by telephone if you cannot find your plan’s site. Insurers were required to launch websites by the state, but only members can access these databases, which may be limited. Even the Massachusetts Association of Health Plans supports a state-run website to validate the information.

Consumers should also be able to contact a hospital or doctor’s office and request pricing in advance. This will take longer than simply searching a website, but it may be worth your time if you are scheduling a medical procedure or tests. Prices and the quality of care vary widely. For example, maternity care for low-risk pregnancies can cost $9,722 some hospitals compared to $18,500 at Massachusetts General Hospital in Boston.

“You have the right to find out what your procedures will cost,” Attorney White said. “Be an advocate for yourself: Ask to see the price list that the doctors and hospitals are required to provide.”

Read more in the “2015 Cost Trends Report” and The Boston Globe.

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medicalerrors.jpgThe American College of Surgeons will consider new guidelines for the practice of concurrent or “double-booked” surgeries after a Boston Globe Spotlight Team report this fall.

The Spotlight Team found many surgeons in Boston and across the country are performing in two operations that overlap in part or their entirety, without the patient’s knowledge or consent. In some cases, doctors have even traveled back and forth to surgeries at different hospitals, leaving patients to wait under anesthesia.

“Patient safety is paramount,” said attorney Marc Breakstone, who has represented clients injured by medical malpractice for 30 years. “It is fundamental that patients have a right to be informed who is performing their surgery. If surgeons are overlapping their schedules, patients must be informed, without exception.”

The Boston Globe Spotlight Team surveyed 47 hospitals nationwide, reporting that 15 percent of surgeries at Massachusetts General Hospital are concurrent (of 37,000 surgeries per year). Of these, 1,000 surgeries involve at least one patient with an open incision. At UMass Memorial Medical Center in Worcester, 5 to 10 percent of surgeries are concurrent. The report also included double-booked procedures at other hospitals.

Patients and family members told the Spotlight Team they had no warning that their surgeon may leave during the procedure.

Among them was former Red Sox pitcher Bobby Jenks, who had spinal decompression surgery at MGH in December 2011. Jenks was critical of his care, and in February 2012, told the media his MGH surgical team made an error. As a result, he said he had to undergo another surgery 18 days later in Arizona.

When interviewed this year, Jenks said he had recently learned his surgeon was double-booked during his entire three-hour procedure. In response, MGH told the Spotlight Team the surgeon had been in the operating room during the entire operation and performed properly.

Other Boston Cases
The Spotlight Team reported on cases of concurrent surgeries at hospitals across the country. Two local cases involved Beth Israel Deaconess Medical Center and Brigham and Women’s Hospital.

In 2005, a hand surgeon left Beth Israel during a break from an operation and went to Children’s Hospital, where he was on staff. His lawyer said the doctor experienced difficulties with a medical device involved in his procedure and went to Children’s Hospital to obtain a replacement. While there, he removed a cast for a young patient who wanted to take a trip with his family, the lawyer said.

The Brigham and Women’s Hospital case involves a thoracic surgeon who allowed other surgeons to perform a lung surgery, which led to the patient suffering complications. During testimony, the doctor acknowledged that the surgery overlapped with that of another patient. Though the jury sided with the doctor, the federal appeals court ordered a new trial, saying the judge erred by excluding testimony from expert witnesses.

From Our Experience
The Spotlight report reminds us of surgery that was performed on one of our clients at the Mount Auburn Hospital in Cambridge in 2002. The surgeon, Dr. David Arndt, left the operating room during complex back surgery. His mission was solely a private one–he needed to cash a check. As a result, he immediately lost his medical privileges and his medical license was revoked. For more details about the $1.25 million recovery we obtained for our client, click here.

Read the Boston Globe Spotlight Team coverage.
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44783989_s.jpgPatient beware: A new report says most of us will leave a doctor’s office with a diagnosis which is either late or wrong at least once in our lives. This can be life-changing for some, leading to serious injury, handicap or even death.

The report, “Improving Diagnosis in Health Care,” was released this week by the Institute of Medicine, which also published the landmark report, “To Err is Human” in 1999. The 1999 report exposed the fact that approximately 44,000 to 98,000 people were dying in U.S. hospitals each year as a result of medical errors.

The current report focuses on how doctors diagnose patients. The report shared the story of Carolyn, who believed she was suffering a heart attack and visited a hospital emergency room. When she asked her doctor questions, a nurse told her the doctor “doesn’t like to be questioned.” Told she was suffering acid influx, she was released a few hours later. But she was not better; she returned to the ER two weeks later. As she suspected, she had suffered a heart attack and needed surgery to unblock her artery.

The authors say they do not know how many Carolyns are out there. But some estimates are at least 12 million people are being incorrectly diagnosed like this year, or roughly 5 percent of adults who seek outpatient care each year.

They predict more bad news for patients too: Errors will likely increase because of the processes behind how patients are diagnosed, and how health care is being delivered today. The Institute of Medicine recommends health care organizations set up systems to identify diagnostic errors, adopt a non-punitive culture and work as a team.

A few highlights from the report:

  • There are many causes to diagnostic errors, including poor collaboration among physicians, patients and their families.
  • Physicians often receive limited feedback when they make a diagnostic error. In some cases, they never even learn about their error.
  • The medical culture continues to discourage transparency and disclosure of errors.
  • Doctors may still be struggling to learn electronic medical record systems which have been implemented to help eliminate medical mistakes. This may actually be contributing to mistakes.

Read more from the report and its recommendations.

Patient Resource:
Our attorneys have also written an article called “Preventing Medical Errors at Hospitals” which discusses how patients can advocate for themselves and explains the Massachusetts Patients’ Bill of Rights.

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Ambulance Crew Dropped Patient from Stretcher onto her Head, Causing 

Fatal Head Injuries and Wrongful Death

American Medical Response, the largest ambulance company in Massachusetts and the United States, has been found responsible for the death of Barbara J. Grimes and awarded her family $1.5 million in wrongful death damages.

The May 4, 2015 verdict followed a two week trial in Middlesex Superior Court.
The jury found that EMTs Wesley Garber and Peter Crowell negligently dropped
Ms. Grimes, a 67 year old dialysis patient on her head while rolling her on a
stretcher which tipped over. The incident occurred on January 31, 2009 in the
parking lot of Fresenius Medical Care in Plymouth, Massachusetts.

marcbreakstone_125.jpgIt has been two years since Massachusetts implemented sweeping medical malpractice reform, which imposed new restrictions on plaintiffs and attorneys and forced them to wait out a “cooling-off” period before filing claims.

Massachusetts Lawyers Weekly recently interviewed some of Boston’s leading medical malpractice lawyers on the law and how it has changed their work. They shared criticism but acknowledged there have been a few benefits. Attorney Marc Breakstone of Breakstone, White & Gluck was interviewed. The article appeared in this week’s edition.

Under changes made to G.L. c. 231 §60L, plaintiffs became required to provide defendants with notice of intent to sue, then wait 150 days before filing a claim in court. This is meant to provide doctors and patients time to resolve a matter outside of court. During this time, doctors are now allowed to make apologies for medical mistakes. This has been one of the most controversial parts of the legislation. But these apologies are not admissible if a claim proceeds to court, unless a doctor makes a contradictory statement under oath.

While the legislation has brought challenges, Breakstone said doctors now have a space to explain to patients what happened during their care. Even if a doctor offers no apology, patients are often satisfied merely to receive an explanation of what happened and expressions of regret, he said.

“It is the betrayal that drives clients to lawyers in many cases,” said the Breakstone, White & Gluck partner. “And under the new statute that encourages disclosure, transparency and apology, I surmise there is less feeling of betrayal.”

Another change is some plaintiff’s attorneys are now sending their initial letters of notice to sue with letters from experts laying out their case.

Breakstone said that is because most lawyers will not accept a case until they can get that letter, and they are happy to provide it at the outset since the statute provides a structure for “systematic information exchange.”

“Before the statute … I would not even bother to put a potential defendant on notice of the claim,” he said. “I would just file the claim. To the extent this statute provides for forced exchange of information, one could say that’s a benefit.”

Read the Massachusetts Lawyers Weekly Article: Two years in, med-mal reforms show promise (Subscription Required).
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marcbreakstone_125.jpgAttorney Marc Breakstone was featured today in a front page article in Massachusetts Lawyers Weekly concerning factors which may influence plaintiffs’ attorneys to take medical malpractice cases to arbitration and waive the right to a jury trial.

Attorney Breakstone, a medical malpractice lawyer who has practiced in Boston for 28 years, has obtained record-setting awards for clients in medical malpractice cases involving surgical malpractice, failure to diagnose cancer and ambulance negligence.

Breakstone was among a group of Boston medical malpractice lawyers who were interviewed by Massachusetts Lawyers Weekly. The lawyers cited a number of reasons for taking cases to arbitration, including the ability to remove some of the risk when insurance companies agree to pay plaintiffs within a range of compensation limits at the end of the process.

Breakstone said the personal needs of a plaintiff may also be a valid reason for choosing arbitration. He recalled the case of a terminally ill patient whose trial was delayed.

“I was uncertain my client was going to live that long,” Breakstone said. “I elected to waive a jury and arbitrate the case so that my client could have her day in court, so to speak, and see her case to the end.”

A plaintiff’s personal circumstances may also come into play, Breakstone said. For instance, if a plaintiff is an undocumented immigrant, jurors may consider that over the facts of the case.

“You’re more likely to get a fair hearing in front of an arbitrator who’s more likely to disregard those factors,” Breakstone said.

Arbitration may also be the best choice in cases when aggravating factors work against a defendant, such as substance abuse, Breakstone said. In those cases, the plaintiff may obtain a higher award from an arbitrator.

“A jury is more likely to be upset and want to punish the defendant in a compensatory award than an arbitrator would,” he said.

Read the Massachusetts Lawyers Weekly article (subscription required).
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Important Questions After New York Man Was Forced to Pay $117,000 for Last-Minute Surgeon He Never Met

20140924_medicalbilling.jpgIt is hard enough to be in pain and need surgery. But it gets much worse if you are unfairly billed huge sums from doctors you never met and never knew would be “helping.”

The New York Times recently shared the story of a New York City man who received an unexpected $117,000 bill after a neck surgery. The story did not have a fair ending; the man had to pay the bill, though the reimbursement came from his health insurance company.

Peter Drier had done careful research on the costs before his surgery at a Manhattan hospital and thought he knew what to expect. But the bank technology manager was blindsided when he received a $117,000 bill for an assistant surgeon he had never met or knew was involved in his care. Before surgery, Drier’s primary surgeon, Dr. Nathaniel L. Tindel, had agreed to accept a negotiated fee determined by his insurance company, about $6,200. Drier had to pay $3,000 toward this as part of his health insurance deductible. But Drier was never informed about the assistant surgeon, Dr. Harrison T. Mu, who was outside of his insurance company’s network of covered providers, until after he was home and received the bill.

The primary surgeon’s office said he did not share in the billing and the assistant surgeon never responded to The New York Times. Drier questioned the charge, and at the same time argued with his insurance company to make the payment. They resisted the “out of network” charge, but eventually paid it, even though by now the patient was protesting the entire unfairness of the situation.

“I thought I understood the risks,” Mr. Drier told The New York Times. “But this was just so wrong — I had no choice and no negotiating power.”

The New York Times recently reported on the growing practice of consumers being charged for out of network doctors in many instances, even hospital emergency rooms, and later receiving unexpected bills. This is significant because an out of network physician can charge 20 to 40 times as much as an in network doctor and costs are not covered by health insurance. For example, an out of network doctor charges an average of $115,625 for a spinal fusion in the U.S., while an in network physician charges an average of $5,983, according to figures cited by the newspaper.

How Massachusetts Consumers Can Protect Themselves From Unexpected Charges
New York will implement a new law next March, which in part will require more advance disclosure of medical costs and seek to protect patients from unforeseen out of network fees. Hospitals and insurers will be directed to mediate and negotiate cases from there.

Massachusetts is also making changes. In 2012, the state passed a health care cost containment law, which called for patients to have access to medical costs before a procedure or care is delivered.

  • As of October 2013, health insurers have been required to provide information on cost estimates for office visits to physicians and specific tests and procedures. For the first year, insurers had two working days to provide the information. Starting October 1, 2014, they will be required to provide the information instantaneously. Consumers are expected to be able to search pricing online themselves.
  • As of January 1, 2014, hospitals and physicians also have to provide cost estimates.

What to request:

  • Under the law, your doctor or health care provider must disclose the “allowed amount” or charge of admission, procedure or service, including the amount of any “facility fees.” The allowed amount is the contractually agreed amount paid by a carrier to your health care insurer. The most important thing is to make sure you understand what your insurance company must pay and what you must pay for a deductible. If that is not written down for you clearly, ask questions – and keep asking questions until you have something in writing you understand.
  • They should provide you with CPT codes, or the billing codes.
  • As for out of network costs, the law also compels providers who participate in networks to provide sufficient information about the proposed procedure or service to allow a patient to use the network’s toll-free number and website to disclose the costs.

The key is that patients must request this information. Start by making sure you understand exactly what your medical treatment will include. Doctors may order panels of test for which expenses add up quickly; you may wish to control the extent of treatment being offered depending on its cost.

We suggest you take time over the next few months and become comfortable with the system before you have a medical crisis. Start by contacting your health insurer and asking for an estimate for your next medical appointment. Contact your physician’s office or hospital as well and compare the findings. Also, ask your health insurer what pricing information is available online too but do not rely on it until you learn about the system.

Be a wise consumer! Do not step into a doctor’s office until you have reached agreement on the price, what your health insurer will pay, and how much you will pay for your deductible.

Related:
After Surgery, Surprise $117,000 Medical Bill from Doctor He Didn’t Know, The New York Times.

Medical Price Transparency Law Rolls Out: Physicians Must Help Patients Estimate Costs, Massachusetts Medical Society Blog

Massachusetts Office of Consumer Affairs and Business Regulation Infographic

Many unaware of new rules on health care costs, The Boston Globe.

Breakstone, White & Gluck consumer safety articles
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medical-surgery-blog.jpgTwo brothers filed a medical malpractice lawsuit against a Boston hospital last month, alleging their mother was killed because a neurosurgeon used the wrong dye during a spine procedure.

This is one of two serious cases which prompted a Medicare inquiry in February, according to a Boston Globe report. The other came in January, when a patient suffered an embolism, heart attack and severe brain damage after a resident removed his intravenous tube without elevating his feet.

The media report comes as hospital safety and health costs are being closely watched here in Massachusetts:

A few reports from August:

  • The Department of Public Health’s new tracking system reported a 70 percent increase in serious medical errors at acute-care hospitals in 2013. One of the biggest increases was in surgical malpractice cases where doctors operated on the wrong body part.
  • Health insurance rates will increase 3.1 percent in 2015, more than this year because of administrative costs associated with implementing the federal Affordable Care Act.

August also marked two years since Massachusetts adopted a health care cost containment law, forecast to save $200 billion over 15 years. Massachusetts passed the law in part to address health care costs associated passage of the mandatory health insurance law passed here in 2006, the first in the nation.

One measure of the 2012 law was a new 180-day cooling off period for patients and families who want to file medical malpractice lawsuits. Hospitals and physicians are given time to apologize without legal repercussions and to negotiate a settlement.

But the law did not prevent a lawsuit in the case of a 74-year-old Watertown woman who died last November, the day after her surgery at Tufts Medical Center. Her sons filed the lawsuit against the hospital, 12 pharmacists, nurses and surgeons.

The Boston Globe reported Tufts Medical Center had no comment on the surgical malpractice lawsuit, which is pending. But regulators who investigated the case reported a neurosurgeon treating the woman for back pain requested a special dye to test the location of tubing which had been placed into her spine.

When the pharmacy did not have the right dye, they replaced it with another type, MD-76. The surgeon checked the dye label, hospital officials say, and injected it twice, even though its label read, “not for intrathecal use.” This means do inject it in the spine.

The Boston Globe quoted experts who called this a form of “cognitive bias,” when a person sees what they expect to see rather than what is actually there.

Tufts Medical Center Implements Changes
According to the The Boston Globe, Tufts Medical Center now requires nurses to submit detailed written medication orders to pharmacists. It has also implemented a new rule requiring two staff members to remove intravenous tubes and use a checklist that includes proper positioning of the patient.

Related:
Surgical Error at Tufts Prompts Widespread Changes, The Boston Globe.

Insurance Rates Will Increase for Small Business, The Boston Globe.
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