Articles Tagged with “medical malpractice”

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In 1999, the Institute of Medicine reported a stunning figure: Each year, up to 98,000 people were dying in U.S. hospitals. These people were not dying from the illness that brought them to a hospital, but from medical mistakes which happened during treatment there.

Over the years, there have been signs the number may be greater. One came in 2010, when the Office of Inspector General for Health and Human Services reported that hospital mistakes contributed to the deaths of 180,000 Medicare patients in just one year.

Now, a new study published in the Journal of Patient Safety reports between 210,000 and 440,000 patients each year suffer some type of preventable harm that contributes to their death. These harms may include patients getting the wrong medicine, surgical errors, or infections resulting when safety procedures are not followed. That makes medical malpractice the third leading cause of deaths in the U.S., following heart disease and cancer.

marcbreakstone_125.jpgMassachusetts Lawyers Weekly writes this week about the divide among lawyers on monitoring social media use and Internet activities by jurors. It is a common practice, especially in Massachusetts, which does not allow attorney-conducted voir dire. There have been no ethical opinions on the subject issued in Massachusetts. Not all attorneys are comfortable with it, but some consider it fair.

“I see no ethical issue. It’s in the public domain,” says Marc L. Breakstone, a Boston personal injury and medical malpractice lawyer with over 25 years of experience. “The public domain is the public domain. There’s certainly nothing wrong with checking the Internet. There would be a lot wrong with interacting with jurors or doing anything on the Internet to influence jurors with respect to the case.”

Breakstone later adds, “Trial lawyers are starving for information about jurors. The Internet is a potential treasure trove of information. Why wouldn’t a diligent trial lawyer inquire of that source? I would rather have voir dire, but without voir dire, this is all I can do.”

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A man who was injured by a driver who suffered a seizure due to his brain tumor could not sue the driver’s neurologist for allegedly failing to warn him not to drive, or for otherwise failing to control his driving.

On December 21, 2001, the plaintiff suffered serious personal injury when he was struck by a car operated by the defendant driver. The driver had been diagnosed with a brain tumor in September 2000 after he had suffered a grand mal seizure. The tumor was malignant and inoperable.

The driver waited six months before he began driving again, as required by Massachusetts law. His treating neurologist, Frederick Hochberg, M.D. of Massachusetts General Hospital, allegedly did not attempt to prevent his patient from driving again and did not warn him not to drive. 

After he was hurt, the plaintiff sued the driver’s estate (the driver had passed away). He also brought a medical negligence claim against Dr. Hochberg. The plaintiff claimed that Dr. Hochberg owed a general duty to the public who might be injured due to the nature of the underlying medical condition that he was treating. The plaintiff argued that the duty rose from the special relationship between a physician and a patient. The plaintiff argued that general negligence principles created a duty in Dr. Hochberg to warn his patient of the dangers of driving while suffering from the brain tumor. The Supreme Judicial Court rejected both arguments.

The court found that this doctor-patient relationship was not a “special relationship” which would give rise to a duty to prevent harm to a third person. Absent such a special relationship, the court said, “there is no duty to control another person’s conduct to prevent that person from causing harm to a third party.”

In 2007, the court had found, in Coombes v. Florio, 450 Mass 182 (2007), that a physician may have a duty to warn his or her patient about the side effects of medication being prescribed. The court ruled that this duty extended to third parties who might be injured if the warning had not been given. But the court refused to extend that ruling to include medical conditions under treatment.

The Coombes case was seen by the court as a very narrow exception to the general rule that a physician owes no duty to third parties who might be injured by a patient. The court stated that the duty sought by the plaintiff would “impose on physicians an affirmative duty … to nonpatients to warn patient of the risks of driving due to any underlying medical condition. We conclude this is an unwarranted and ill-advised expansion of liability for several reasons.”

The main concern of the court was that the physician did not do anything to increase the likelihood of harm by the patient, compared to the physician who might be liable for prescribing medication and thus creating additional risk. The court also believed that further imposition of duty would intrude on the doctor-patient relationship and might increase collateral costs. 

This case represents the second time the court has stated that it will not be expanding the duty recognized in the Coombes case.  At least that narrow exception survived.

The case is Medina v. Hochberg, SJC-11178 (May 13, 2013).

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medical-A copy.jpgThe state is behind schedule for improving its online Physician Profiles system, with data about some doctors who let their licenses lapse or resign as they face discipline still being removed from public view. This makes it harder for consumers to make good decisions about their medical care.

The Massachusetts Board of Registration in Medicine oversees licensing of the state’s 34,000 doctors and the Physician Profiles database, which was established in 1996. The database has gained criticism in recent years for its limitations in stories published by The Boston Globe and WBZ-TV.

The board has authority to discipline physicians under 243 CMR (Code of Massachusetts Regulations). After the board receives a complaint against a doctor and holds a hearing, it can take no action or reprimand, censure or order fines, public service and training programs. In the most serious cases, it can suspend a license for a defined period or indefinitely or revoke a license. After license revocation, a Massachusetts doctor can petition for re-instatement after five years or a shorter period if permitted by the board.

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.

Related:

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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ambulance-200.jpgA Boston paramedic believed to have been tampering with painkillers may have exposed 57 people to blood-borne illnesses in 2011. The city began notifying the potential victims this weekend, the Boston Globe reported.

The paramedic was relieved from his duties at Boston Emergency Medical Services on Sept. 6, 2011, when the alleged tampering with vials of both painkillers and sedatives was discovered. A total of 64 patients may have been exposed, but seven died after being transported to local hospitals. Their deaths are not believed to be have been related to the alleged medical negligence and drug tampering.

The city will follow up with letters to the potential victims and offers for free medical tests to determine if they were exposed to any infectious diseases. The drugs were allegedly tampered with during a six-week period in the summer of 2011.

The city continues to investigate the paramedic’s alleged actions. At this point, city officials say they do not know how the individual may have tampered with the medications, which are in a liquid form and injected. No criminal charges have been filed against the paramedic.

The news follows another case of alleged medical malpractice involving drug abuse by a medical professional in New Hampshire. In July, a medical technician named David Kwiatkowski was arrested. Kwiatkowski has been infected with hepatitis C since at least 2010 and is accused of exposing 30 patients, some at Exeter Hospital in New Hampshire, with the illness.

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medical-malpractice.jpgThe health care cost containment bill signed into law by Gov. Deval Patrick will soon bring sweeping changes to Massachusetts hospitals and patients, including more widespread use of electronic medical records and a “cooling off” period before filing medical malpractice lawsuits.

Patrick signed the bill into law on Aug. 6, 2012, six years after Massachusetts became the first state in the nation to require every resident to obtain health insurance. It is seen as the model for the federal health care law signed by President Barack Obama in 2010. The Massachusetts bill aims to save the state $200 billion in health care costs over the next 15 years, keeping spending at or below the same pace as the state’s economy through 2017. The law will:

  • Encourage the creation of “accountable care organizations” that coordinate medicine, provide patients access to their medical records and reduce unnecessary testing.
  • Seek to contain medical malpractice costs by creating a 182-day “cooling off” period to give both sides a chance to negotiate a malpractice settlement.
  • Provide $135 million in grants to help community hospitals adopt electronic medical records.
  • Expand the role of physician assistants and nurse practitioners to act as primary care providers.
  • Create a new “Wellness Tax Credit” for businesses that adopt programs to prevent chronic diseases such as obesity, diabetes and asthma.
  • Creates 25 new boards, task forces and commissions, which will need 266 appointees.

This is the second step at controlling medical malpractice costs Massachusetts has seen this year. In April, a coalition of Massachusetts doctors, hospitals and patient groups announced a “Road Map to Reform” plan, in which seven hospitals planned to offer patients harmed by medical errors a prompt apology and possible financial settlement before a patient files a medical malpractice lawsuit. Patients were to be encouraged to hire a medical malpractice attorney to review details of the proposed settlement.

The same coalition, which included Massachusetts General Hospital and Beth Israel Deaconess Medical Center in Boston. Three large insurers and a medical group donated $1 million to underwrite the initial work.

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syringe-150.jpgAuthorities have arrested a former New Hampshire hospital technician accused of infecting over 30 people with hepatitis C by injecting himself with syringes which were later used to treat patients.

David M. Kwiatkowski, 33, was a traveling technician who worked at Exeter Hospital’s cardiac catheterization lab from April 2011 through May 2012, when he was fired. He is accused of stealing syringes containing fentanyl from the lab, injecting himself and refilling the tubes with a liquid such as saline. Patients were then treated with the syringes.

Kwiatkowski told authorities he learned he had hepatitis C in May 2012, but further investigation showed he tested positive for the infection back in June 2010.

Kwiatkowski was arrested Thursday at an undisclosed Massachusetts hospital where he is receiving treatment for an undisclosed condition. He told authorities he has not taken drugs and a syringe found in his vehicle with a fentanyl label did not belong to him.

When Kwiatkowski is discharged, he will return to New Hampshire to face federal drug charges.

Hundreds of Exeter Hospital patients have been tested over the past few months and more are being notified. So far, 31 patients have tested positive for hepatitis C, a blood-borne infection which can cause liver disease and long-term health problems.

Two dozen lawsuits have been filed against the hospital for medical malpractice. A New Hampshire medical malpractice attorney is also representing 90 individuals for a possible class-action lawsuit which would allege medical malpractice and negligent supervision on the part of hospital.

The potential medical malpractice plaintiffs include 30 individuals who still do not know whether they have hepatitis C and another 30 or 40 who tested negative. These individuals have been told they must undergo periodic future testing, take medications for side effects and may not be intimate with their partners.

Kwiatkowski is a “serial infector,” said U.S. Attorney John Kacavas in comments reported by the Associated Press. He worked in hospitals in at least six other states and authorities are investigating whether he infected more patients.

The Centers for Disease Control and Prevention has received similar reports of 13 hepatitis C outbreaks at medical facilities between 2008 and 2011, though state and federal authorities have no reporting requirement. At least two of the medical negligence cases have resulted in criminal charges.

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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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medical-A copy.jpgSeven Massachusetts hospitals have announced a plan to start a new initiative to increase reporting of medical mistakes and cut down on medical malpractice lawsuits.

The “Road Map to Reform” plan for the test hospitals calls for doctors and nurses to take the unusual step of fully disclosing medical mistakes to patients and apologize. Three large insurers and a medical group have donated about $1 million to underwrite the initial work. The plan was developed by a coalition of physician, hospital and patient groups, which included the Massachusetts Medical Society, the state’s largest physician group. Legislation has also been proposed to assist the effort.

“This program appears to be a first step towards fair compensation of injured patients. However, the devil is in the details, and the foremost concern is that patient’s rights must be preserved,” said Massachusetts medical malpractice lawyer Marc Breakstone.

The test hospitals include Beth Israel Deaconess Medical Center in Boston, Beth Israel Deaconess Hospital-Needham, Beth Israel Deaconess Hospital-Milton, Baystate Medical Center in Springfield, Baystate Franklin Medical Center in Greenfield, Baystate Mary Lane Hospital in Ware, and Massachusetts General Hospital. The plan is expected to be implemented statewide over the next several years.

Here is how the program will work: any medical professional can report a suspected medical error. The hospital will conduct a “root cause analysis” to determine if caregivers or hospital policy or systems were fault. If caregivers are to blame, they will apologize and the hospital and medical malpractice insurers will determine the amount of compensation.

Patients will be encouraged to hire a medical malpractice lawyer during negotiations with the hospital to evaluate whether a compensation offer is fair.

The Massachusetts coalition developed the plan with a $300,000 federal grant. It is based on a plan adopted by the University of Michigan Health System 10 years ago. The Michigan plan reduced the number of medical malpractice lawsuits in half each month and the time to resolve all claims fell from one year and four months to less than a year, according to a 2010 study published in the Annals of Internal Medicine.

The coalition is pushing for legislation to help implement the changes. Changes include a six-month mandatory “cooling-off period” after a medical error occurs before a patient can file a medical malpractice lawsuit. The coalition also wants to make physician apologies inadmissible in the event of a medical malpractice lawsuit.

Attorney Marc Breakstone noted that apologies are already inadmissible in court, so legislation must be carefully crafted to avoid limiting relevant evidence. “A doctor should not be permitted to say that he or she made a mistake, explain the mistake, then immunize the confession with an ‘I’m sorry’ at the end of the discussion.” He added, “Other changes in the legislation need to be studied carefully.”

Currently, settlements which involve a physician mistake attributed to hospital policy become part of the physician’s public record. One part of the proposed legislation would shield doctors from blame on their public records for medical mistakes attributed to hospital policy, though the medical mistake would remain public through the Department of Public Health.

But in cases where a physician is at fault, settlements would become part of the physician’s public record with the Massachusetts Board of Registration in Medicine and the National Practitioner Data Bank.

In addition to the Massachusetts Medical Society, the coalition involved in Baystate Health in Springfield, the Massachusetts Coalition for the Prevention of Medical Errors, and the Massachusetts Hospital Association.

Related:
Massachusetts Hospitals Promise Openness, Apologies, The Boston Globe

Check Your Doctor’s Safety Record Online
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