Articles Tagged with “Boston medical malpractice lawyer”

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One tip for 2018? Do your online research before you visit the doctor. Read our blog to learn which websites are worth visiting.

As the New Year begins, many of us have questions about our medical health. Some of us are trying to understand the fine print on new health insurance policies while others prepare for medical appointments or surgical procedures. 

A doctor’s office should be a safe place. But as medical malpractice lawyers here in Boston, we know the reality is that medical mistakes can happen at any stage during medical care, from the doctor’s office to the pharmacy to surgery. Mistakes are not rare either.

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.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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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.

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

Insurance Rates Will Increase for Small Business, The Boston Globe.
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emergency-room-200.jpgA recent article in The Boston Globe magazine explores the role of apologies from doctors in resolving medical malpractice claims. In the Jan. 27 article, Dr. Darshak Sanhavi writes that the “vast majority of major medical errors never see the light of day,” citing data from Harvard-affiliated hospitals which showed only 90 malpractice claims involving children were filed between 2006 and 2010.

“The remarkable thing, therefore, isn’t that Americans file too many malpractice lawsuits, it’s that they file so few,” Sanhavi writes. “Some physicians courageously fess up and communicate with compassion after an error and defuse a patient’s anger. At the same time, some appear to sweep errors under the rug.”

“This in depth look at the current system reveals that most serious medical errors that result in harm to patients never result in claims,” said Boston attorney Marc L. Breakstone. “To the contrary, only a very small number of medical error cases ever get filed and even a smaller number result in some type of compensation to the injured patients or their families. Secrecy and non-disclosure are the real problems with our current system. We need more transparency so that victims of medical errors have an opportunity to get fair compensation.”

Article Highlights:

Michigan Model. In 2004, the University of Michigan Health System implemented its “disclosure with early offer” program. The goal of the program was to have impartial medical providers review claims and determine whether medical mistakes causing harm had occurred. If so, doctors and other medical providers were encouraged to apologize to patients in person while the hospital offered prompt financial settlements. By 2006, the program was credited with reducing medical malpractice lawsuits by more than 50 percent and reducing the average time to resolve a claim from 21 months to 10.

Massachusetts “Cooling Off” Period. Last August, Gov. Deval Patrick signed into law a health care cost containment bill that includes measures to streamline medical malpractice claims. Now before an injured patient files a medical malpractice lawsuit, they must wait out a 182-day “cooling off” period, providing time to negotiate a settlement with a hospital out of court. The legislation includes $135 million in grants to help community hospitals adopt electronic medical records systems.

Also last year, a coalition of seven Massachusetts hospitals adopted a “Road Map to Reform” plan. It is more commonly known as the “I’m sorry” plan because medical providers and hospitals are encouraged to provide patients an apology and financial settlement in cases involving medical mistakes. The program includes Mass General Hospital and Beth Israel Deaconess Medical Center and was initially underwritten by $1 million from insurers and a medical group.

CRICO. The Controlled Rick Insurance Company (CRICO) is the not-for-profit consortium which pays claims from Harvard-affiliated hospitals. The Boston Globe magazine article details its role in analyzing records to identify trends of medical mistakes. The model was used in the 1980s by the American Society of Anesthesiologists and resulted in a new standard of care being adopted in 1986. In the 1990s, when many doctors were being sued for failure to diagnose breast cancer, CRICO analyzed claims and offered doctors insurance discounts for learning a new treatment procedure.


Medical malpractice: Why is it so hard for doctors to apologize? The Boston Globe.

The Michigan model: medical malpractice and patient safety at UMHS.

Patrick signs health care cost containment bill, The Boston Globe.
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syringe-150.jpgExeter Hospital in New Hampshire is facing allegations of medical malpractice after 19 patients and one employee have tested positive for hepatitis C. New Hampshire public health officials suspect the cause is an employee who stole sterile syringes from a hospital lab, then replaced them with used water-filled ones.

So far, the events have led to extensive testing of 700 patients, and the testing continues. Patients from as far back as Oct. 1, 2010 have been called in for testing. Hepatitis C can take one to six months to appear in blood test. Because of this, many patients have been contacted for retesting.

Hepatitis C is the most common chronic bloodborne infection in the country, according to the Centers for Disease Control and Prevention (CDC). It often does not show immediate symptoms, but 60 to 70 percent of patients contract chronic liver disease and many suffer liver cancer. Some 3.2 million Americans live with chronic hepatitis infections.

The most common cause of hepatitis C is blood transmission, largely through sharing contaminated needles or other equipment to inject drugs, according to the CDC. From 2008 to 2011, the U.S. saw 13 hepatitis C outbreaks related to health care. There were 102 outbreak-associated cases and more than 80,000 people were notified for screening.

Exeter Hospital reported the outbreak to the state on May 15. It closed its cardiac catheterization lab from May 25 to June 5, when the state determined there was no contaminated equipment. The state Attorney General’s Office has launched an investigation.

Some of the patients who have contracted the hepatitis C have retained legal counsel. In New Hampshire, an employer can be held responsible for negligent and careless acts of an employees.


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stethescope.jpgThe National Patient Safety Foundation (NPSF) is sponsoring its annual Patient Safety Awareness Week from March 4 to March 10. This year, the non-profit Boston organization is focused on increasing awareness about ongoing industry safety efforts and ways both health care professionals and patients can advance them to prevent injuries from medical errors.

The medical community will introduce a new professional certification this week, the Certified Professional in Patient Safety credential. Medical professionals from all disciplines can seek the certification. The NPSF is also focusing on patient engagement and calling on patients and families to communicate and partner with providers on safety efforts. It has released a new Ask Me 3 video, in which it advises patients to ask doctors:

  • What is my main problem?
  • What do I need to do?
  • Why is it important for me to do this?

Patients are advised to carry a notebook and pen and write down the answers to each question. Massachusetts patients can also take these additional measures to protect themselves from medical mistakes:

Physician Profiles Database. You can search for a doctor’s safety record in the state’s Physician Profiles database. The database provides information on criminal convictions, medical malpractice payments and board disciplinary actions during the past 10 years. Click here for the Physician Profiles database.

Online Research. There are many reputable websites which provide information on medical conditions, procedures and hospitals. One database is Medicare’s Hospital Compare, which compiles of a wide range of data, including patient surveys and hospital death rates compared to the national average. Click here for the Hospital Compare database.

Patient’s Advocate. Massachusetts law affords you the right to have a patient’s advocate with you at medical appointments. Having a patient’s advocate allows you to focus on communicating with the medical professional, while your advocate writes down important treatment instructions, the doctor’s response to your questions or ask their own questions when they observe unusual things.

Medical Records. You have an absolute right to obtain your medical records in Massachusetts. You do not have to disclose your reason for seeking your medical records. But you can expect to be charged for photocopies so ask for an estimated fee in advance.

Ask Questions Before Surgery. Talk to your surgeon before the day of the surgery and ask questions at the hospital. Questions may include how does the hospital sterilize its equipment and does the medical staff utilize a written patient safety checklist to make sure they do not miss a step.

Avoiding Medication Errors. Medication errors can happen at the hospital or your regular pharmacy. Before you leave the pharmacy, check the drug name, dose and open the bottle to make sure the medications are imprinted with the drug name and strength. If not, ask the pharmacist to show you the bottle from which medication was dispensed.


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patientalarms_web.jpgAs the problem of alarm fatigue comes under increased scrutiny, Massachusetts General Hospital has implemented steps to improve the medical staff’s response to patient alarms and avoid unnecessary deaths.

Alarm fatigue at hospitals has received much attention in the past year as it has led to several patient deaths and illnesses throughout Massachusetts. Alarm fatigue is a type of medical malpractice caused when nurses and medical staff work among numerous alarms, many false, and grow desensitized to the many sounds and fail to respond to patients.

At Mass. General Hospital, an 89-year-old man died in January 2010 as he recovered from surgery and awaited implantation of a cardiac pacemaker. State and federal investigators reported 10 nurses on duty said they failed to hear alarms beeping at the central nurses’ station. The nurses also said they never saw ticker signs indicating the patient’s dropping heart rate on three hallway signs.

In April, Mass. General Hospital settled a medical malpractice claim made by the patient’s family for $850,000. After an internal investigation, the Boston hospital also implemented several improvements to reduce this form of medical malpractice, including disabling the off switches of 1,100 cardiac monitors, educating nurses about alarms and installing speakers so alarms are heard more clearly. The medical malpractice settlement was reported today by The Boston Globe on Nov. 28, 2011.

Another medical malpractice lawsuit is pending against Mass. General Hospital after a 47-year-old woman died in the hospital in January 2009. The state Department of Public Health found the patient’s cardiac monitor was not setting off alarms.

Other hospitals experiencing problems with alarm fatigue include UMass Memorial Medical Center in Worcester. In September 2011, The Boston Globe reported the hospital had two wrongful deaths over the past four years due to failure to respond to patient alarms. In one case, nurses failed to respond to alarms for almost an hour. The hospital is now taking steps such as holding monthly drills for medical staff and arranging voluntary seminars and webinars for the hospitals 2,100 nurses.

The hospital has also started sending low-battery warnings to nurses’ cell phones and pagers for life-threatening changes in patients.

Hospitals are not alone in addressing the problem. Last month, the Joint Commission, which accredits hospitals, and the U.S. Food and Drug Administration attended a summit in Washington D.C. In future months, they are expected to make recommendations for the medical community.
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medicalerrors.jpgA new review of hospital care shows patient deaths at hospitals rise 8 percent in July, making it clear that medical errors increase when the new interns and residents begin treating patients.

“The July Effect,” has been widely discussed and studied for years, but a new paper published in this week’s Annals of Internal Medicine stands apart as the first systematic review of past studies. The review found that in July, patient deaths rise in teaching hospitals as new medical students arrive and 20 to 30 percent of the most experienced doctors leave. The review made the finding based on the largest and best-designed studies of recent years.

The mistakes are not limited to patients having surgery. Last year, The Journal of General Internal Medicine found that fatal medication errors increased 10 percent in July. The increase was greatest in geographic regions with a large number of teaching hospitals.

It is hard to imagine that experienced surgeons, anesthesiologists and nurses would need a checklist to avoid obvious mistakes in surgical procedures, but the hard evidence is that simple checklists make an enormous difference in patient outcomes. Complications and medical malpractice rates are cut dramatically. The evolution of the checklist is chronicled in a recent book by Boston surgeon Atul Gawande. books[1].jpg

In his book, The Checklist Manifesto (Metropoliltan Books 2009), Dr. Gawande, who practices at the Brigham & Women’s Hospital in Boston, points out that the average American has seven operations in his or her lifetime; that there are fifty million operations performed every year; and that there are “upwards of 150,000 deaths following surgery every year–more than three times the number of road fatalities.” And, research has shown, “at least half our deaths and complications are avoidable.”
Inspiration for the procedural checklists for surgery came from the airline industry, which has always used checklists for routine and emergency procedures. Thousands of hours are spent honing the lists so they are not overwhelmingly detailed and difficult to follow. And they work.
Working with the World Health Organization, Dr. Gawande and the research team studied complication rates in a variety of hospitals around the world, some teaching institutions in wealthy countries, some from the most impoverished countries, and some in between. Complications and deaths were assessed. The checklist was implemented and changes were studied. Within months, major complications had dropped by 35% and deaths had dropped by 47%.
The 19-point checklists now in use include some remarkably simple steps: The operating room personnel introduce themselves and state their roles; they discuss any known risk factors; they make sure they have the right patient, the right procedure, and the right part of the body. The list also includes more details such as confirming medication allergies, reviewing the anesthesia plan, discussing concerns about blood loss, identifying pathology specimens, confirming sponge and needle counts, and sending important information to the recovery room.
These simple procedures have saved lives, reduced complications, and saved probably hundreds of millions of dollars and immeasurable pain and suffering. A checklist that costs almost nothing to perform (just a few minutes of everybody’s time) is easily saving far more than any possible medical malpractice “reform” that is being considered in the halls of Congress or state houses around the country.  Further fine-tuning of medical practices, not punishing the injured, is the correct path to malpractice reform.
Advice to Consumers: If you are planning for a surgical procedure, make sure your surgical team is using a checklist to avoid complications in your case. According to Dr. Gawande, over 94% of medical professionals say they would want a checklist for themselves.

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