Tampa Bay Personal Injury Lawyer - Medical Malpractice - Most Commented

Specialty Courts Would Bring Special Problem - Bias

Bob Carroll — Thu, 12 Jan 2006 20:40:19 GMT

The Wall Street Journal's Law Blog casually floats the idea of special courts for medical malpractice claims. Nice try, Wall Street, but I prefer my justice served with fairness and impartiality.

Some years ago my clients and I experienced the kind of justice that occurs in a special tribunal in the State of Florida. The special tribunal process was created as part of a pre-suit screening process for medical malpractice claims. Each tribunal was composed of an attorney, a doctor and a judge. The legislature may have thought it would be wonderfully fair and knowledgeable because of its composition. A few years of experience proved how unfair special tribunals could be. The doctor on the panel, armed with his agenda and his supposedly superior insight into medical issues, was easily able to lead one or both of his panel-mates to vote against every claimant.

I would rather put my faith in the fairness of ordinary trial judges and citizen juries who don't come to the issues as advocates for the malpractitioners.

The Atlanta [business] court is a tangible example of a movement to establish more specialty courts, most notably special health courts that would adjudicate medical malpractice claims.... They don't yet exist; Congress plans to hold hearings on the topic this year.

Would Congress be willing to hear from the hundreds of Florida malpractice victims who saw their day in court become a funeral service for their rights?

Originally posted at InjuryBoard by Bob Carroll

Inadequate Staffing Takes its Toll in Health Care Industry

Don Greiwe — Mon, 20 Jul 2009 11:02:49 GMT

Recently, the American Nurses Association (ANA) released the results of an ongoing survey of nurses across the U.S., and the findings are grim. The survey received more than 15,000 responses from nursing professionals, and an alarming number of respondents reported insufficient staffing and a decline of care. Specifically, 50% of nurses say they would “not feel confident” having a loved one receive treatment in the facility they work in, and a shocking 72% believe that the staffing in their unit is insufficient. The staffing insufficiency has taken the largest toll on nurses - most are rarely afforded a full meal break and many have been forced to take on additional duties. Over half are considering leaving their current position, and nearly a quarter are considering leaving nursing all together.

For too long, nurses have been overworked and underappreciated. And in today’s health care climate, nurses have just as much impact on patient care as doctors. The ANA has launched a grassroots campaign entitled “Safe Staffing Saves Lives” to help better the work environment for nurses. A fitting name, the campaign focuses on the importance of adequate staffing in the health care industry. To date, 12 states – CA, CA, CT, IL, ME, NV, NJ, OH, OR, RI, TX, VT, WA – and the District of Columbia have adopted regulations addressing nursing staffing. But for many hospitals in Florida, there simply aren’t enough nurses to meet demand. One such example is Tampa General Hospital – which alone has 53 nursing positions open at the time of writing this. And the Florida Center for Nursing forecasts that the shortage is going to continue to grow.

There are a lot of things that need to be done to improve the state of patient care in America. The first step to any successful medical unit is adequate staffing. While some hospitals take the necessary steps to recruit an adequate staff, many others try to get by with the bare minimum. This bare-bones business model has taken its toll on nurses, and surely has taken its toll on patient care. A shortage of nurses can likely be linked in part due to the poor work environment nurses are subjected to daily. The nursing profession has one of the highest turnovers of any industry. And with 25% of those surveyed considering leaving nursing all together, it becomes a downward spiral that will only get worse unless something radical is done to better handle staffing shortages.

Originally posted at InjuryBoard by Don Greiwe

Walgreens Own Numbers Show Workloads Exceed Patient Safety Threshold

Bob Carroll — Sun, 09 Oct 2005 21:44:34 GMT

Tthe National Pharmacists Association released a report that may explain why so many prescription errors are occurring. The title of the report: Pharmacists routinely pushed beyond what they consider safe for patients. The risk of error rises along with the number of prescriptions filled per hour.

This summer the National Pharmacists Association released a report that may explain why so many prescription errors are occurring. The title of the report summarizes the findings: Pharmacists routinely pushed beyond what they consider safe for patients.

You have to applaud the guts of a professional association that publicizes unsafe practices by one of the major employers of its members. The details revealed in the report are so damning that I have reprinted almost the entire news story below. It is a shocking read.

NAPERVILLE, Ill -- Walgreen Co.'s own numbers show that its pharmacies routinely go beyond the widely accepted safety threshold for numbers of prescription filled per hour, according to documents released today by the National Pharmacists Association.

Leading pharmacy researchers have placed the safe average workload at 20 prescriptions filled an hour by pharmacists, documenting that anything beyond that drastically increases the risk for errors.

According to Walgreens' own numbers from monthly store productivity reports, 58 Walgreens pharmacies in Northern Illinois have exceeded the 20- prescriptions-per-hour-per-pharmacist threshold so far in 2005 -- nearly 1 in 5 pharmacies for which records are available. Another 130 pharmacies are in the "grey zone" between 15 and 20 prescriptions per pharmacist hour, meaning they likely exceed the safety threshold at peak hours.

"Walgreens is caught in its own Web of mistruths," said Chuck Sauer, executive director of the National Pharmacists Association. "The bottom line is that many pharmacists are too rushed to make sure patients go home with the right prescription. We're not willing to put up with that level of risk. Walgreens seems to be."

"This is the direct result of Walgreens' systematic implementation of its assembly line philosophy, under which pharmacists are made to work at ever- increasing speeds, compromising patient safety."

The company's numbers and its own pharmacists contradict the company's repeated claims that its pharmacies are adequately staffed and that pharmacists are never pushed to go beyond what they considered is safe.

"One night I noticed an error and told everyone working with me to slow the pace down, because we did not want anyone dying under our watch," said Joan Schwimmer, a Walgreens pharmacist in Northbrook. "The next day I was reprimanded and told not to do it again."

The National Association of Boards of Pharmacy is on record stating that "workload conditions ... impact the public health and safety," and leading medical studies at major pharmacy and medical schools, including Auburn and Texas Tech, document that the risk of error rises along with the number of prescriptions filled per hour.

A landmark Auburn University study demonstrated that "the number of errors increases significantly" between 20 and 24 prescriptions filled per hour, and that any hourly average over 23.5 creates a "high risk of making errors."

"Pharmacists are in the business of making people healthy and keeping them safe," Sauer said. "We are on record with Walgreens that a workload over 20 per hour creates an unacceptable risk for patients, but have been ignored," said Sauer. "Even pharmacies that on average don't break the safety threshold routinely exceed it at peak hours. This problem affects every patient at every Walgreens."

Some states have set workload standards to help curb prescription errors. Based on available research, North Carolina's Board of Pharmacy set a 150- prescription-per-shift threshold (or 18.75 for an eight-hour shift). In 1994, the Iowa Board of Pharmacy Examiners set a quota of 14 prescriptions per hour per pharmacist.

"Not only does the pace itself increase the chance for misfiled prescription, but it also leaves pharmacists no time to counsel the patient, which is usually when you might catch a mistake," said Sauer. "We can't provide the level of personal service that Walgreens has made the cornerstone of its marketing."

Studies have shown that adequate time to counsel patients can curb the risk of them going home with the wrong drug by as much as 90 percent.

"We hoped Walgreens would start putting patients ahead of profits," Sauer said. "Instead, their response has been to intimidate our members and try to break this union so that there is no one left to call attention to them jeopardizing patient safety."

My Comment - Why wasn't this on the evening news?

Originally posted at InjuryBoard by Bob Carroll

National Television Ads To Highlight Costs Of Frivolous Lawsuits - A Frivolous Ad Campaign?

Bob Carroll — Wed, 05 Oct 2005 08:34:12 GMT

A National Television Advertising Campaign to Highlight the Costs of Frivolous Lawsuits on Our Healthcare System. What are frivolous lawsuits and outrageous jury awards? They do not exist. The only thing that can properly called outrageous would be the unfair and unfounded criticism of a jury verdict.

The press release from SickofLawsuits.org trumpets it is launching a National Television Advertising Campaign to Highlight the Costs of Frivolous Lawsuits on Our Healthcare System. This is said to be in conjuction with Lawsuit Abuse Awareness Week. "Titled 'The Game,' the advertisement highlights the costs we all pay for meritless lawsuits and outrageous jury awards."

Wow! I hardly know where to begin. Maybe the best place to start is the concept of "outrageous jury awards." Juries are selected from the community to represent a cross-section of the citizens in determining the facts of a case. Occasionally, they will make a finding or award an amount that from afar may appear unreasonable. However, they were the ones we designated to do the job of judging the facts and took the time to receive and consider each and every fact submitted to them in the courtroom.

We have to accept the fact that different juries may come to different conclusions. However, no jury's determination can ever really be labeled "outrageous" by another jury or by total outsiders who have not received and considered all of the the testimony and evidence in a particular trial. If, for some reason, a jury verdict can be said to "shock the judicial conscience" the Judge always has the power to set it aside. As a result, the only thing that can properly called "outrageous" would be the unfair and unfounded criticism of a jury verdict.

Next, let me take on the idea of "meritless lawsuits" in medical malpractice matters. The Courts and the Legislatures of all states have established so many requirements (I would even say, hurdles) for the prosecution of any claim against a health care provider that it would be virtually impossible for a "meritless" claim to survive its filing. Therefore, no lawyer is so foolish that he would invest his time and resources in trying to launch what would be a sinking ship. He certainly would have plenty of meritorious malpractice claims to file if recent studies of the number of malpractice incidents that never even see the courthouse are correct.

My experience, which is very common, is that many perfectly valid claims are not filed because the injury did not result in death or a truly significant permanent problem for the patient. Those that are filed have been carefully vetted by qualified experts within various medical fields.

So, what does "frivoless lawsuits" mean? It actually means a lawsuit that has been filed by an attorney after a careful evaluation of its merits with the assistance of competent experts, that passed the scrutiny of the judge who likely ruled against defense motions attacking its merits, that was tried before a jury of ordinary citizens who received only the testimony and evidence permitted by the judge and that ended with a verdict in favor of the injured patient or his family in an amount which did not "shock the judicial conscience." That is the profile of the "frivoless lawsuits" that are supposedly creating a problem in our society.

More from the Press Release: "Some personal injury lawyers, who file frivolous lawsuits in hopes of striking it rich, are bankrupting our healthcare system, and we are all paying the price," said Sick of Lawsuits Spokesperson Dr. Evelyn Tobias-Merrill. "We launched this national advertising campaign to call attention to the abuses of our legal system at the hands of certain greedy personal injury lawyers."

"The Game" depicts a personal injury lawyer as a game show contestant spinning a prize wheel on which all potential outcomes are undesirable or harm healthcare consumers. Prize options include: "File Junk Lawsuits," "Run Ads that Scare Patients," "Make Costs Go Up," "Rake in Millions," and "Force Medicines off the Market."

Could the true purpose of the ad campaign be the poisoning of the minds of potential juries against those who pursue medical malpractice claims in our court system? Is this an example of Advertising Abuse?

Originally posted at InjuryBoard by Bob Carroll

Matt Noyes On The Herniated Disk

Bob Carroll — Wed, 10 Jan 2007 20:42:04 GMT

My law partner, Matt Noyes, has created a legal blog to primarily discuss issues related to Workers' Compensation matters. Matt recently discussed the herniated disk or disc. The following is an excerpt from his informative article.

What You Need to Know About Your Herniated Disk

Your doctor has told you that you have a herniated disc, but what does this mean to you? When the soft part between bones in the spine presses on the nerves around the backbone, it's called a herniated disk. Sometimes this is called a ruptured disk. Other times it is called a protruding disk.
Herniated disks are most common in the lumbar spine--the part of your backbone between the bottom of your ribs and your hips. Disks are soft "cushions" between the bones of the spine. The spine holds up your body. It also protects your spinal cord and nerves. The disks in the spine let you move your backbone. When the disk is injured in a car accident or work injury, the outer part may tear. The inside part of the disk pushes through the tear and presses on the nerves beside it.
When part of a disk presses on a nerve, it can cause pain in both the back and the legs. The location of the pain depends on which disk is damaged. How bad the pain is depends on how much of the disk is pressing on the nerve. In most people with herniated disks, the pain spreads over the buttocks and goes down the back of one thigh and into the calf. Some people have pain in both legs. Some people's legs or feet feel numb or tingly. The pain from a herniated disk is usually worse when you're active and gets better when you're resting. Coughing, sneezing, sitting, driving and bending forward may make the pain worse. The pain gets worse when you make these movements because they put more pressure on the nerve.

Originally posted at InjuryBoard by Bob Carroll

The Epidemic With Many Names

Bob Carroll — Thu, 04 Jan 2007 09:11:02 GMT

According to a story in the New York Times there is an epidemic causing excessive medical treatment in the U.S. It is an epidemic with many different names.

What's Making Us Sick Is an Epidemic of Diagnoses

For most Americans, the biggest health threat is not avian flu, West Nile or mad cow disease. It's our health-care system.
Americans live longer than ever, yet more of us are told we are sick.
How can this be? One reason is that we devote more resources to medical care than any other country. Some of this investment is productive, curing disease and alleviating suffering. But it also leads to more diagnoses, a trend that has become an epidemic.
This epidemic is a threat to your health. It has two distinct sources. One is the medicalization of everyday life. Most of us experience physical or emotional sensations we don't like, and in the past, this was considered a part of life. Increasingly, however, such sensations are considered symptoms of disease. Everyday experiences like insomnia, sadness, twitchy legs and impaired sex drive now become diagnoses: sleep disorder, depression, restless leg syndrome and sexual dysfunction.
Perhaps most worrisome is the medicalization of childhood. If children cough after exercising, they have asthma; if they have trouble reading, they are dyslexic; if they are unhappy, they are depressed; and if they alternate between unhappiness and liveliness, they have bipolar disorder. While these diagnoses may benefit the few with severe symptoms, one has to wonder about the effect on the many whose symptoms are mild, intermittent or transient.
The other source is the drive to find disease early. While diagnoses used to be reserved for serious illness, we now diagnose illness in people who have no symptoms at all, those with so-called predisease or those "at risk."
...the real problem with the epidemic of diagnoses is that it leads to an epidemic of treatments. Not all treatments have important benefits, but almost all can have harms.
The epidemic of diagnoses has many causes. More diagnoses mean more money for drug manufacturers, hospitals, physicians and disease advocacy groups. Researchers, and even the disease-based organization of the National Institutes of Health, secure their stature (and financing) by promoting the detection of "their" disease. Medico-legal concerns also drive the epidemic. While failing to make a diagnosis can result in lawsuits, there are no corresponding penalties for overdiagnosis. Thus, the path of least resistance for clinicians is to diagnose liberally -- even when we wonder if doing so really helps our patients.

Originally posted at InjuryBoard by Bob Carroll

Benefits Of A Doctor Who Takes His Time To Do It Right

Bob Carroll — Mon, 18 Dec 2006 06:54:56 GMT

Some medical malpractice occurs simply because the medical provider does not spend enough time doing the job at hand. It is identical to the plumber who does a poor job making his connections in the rush to get to the next job or on the way home. Or, to the home inspector who has twice as many homes to inspect as he should have in his work day. It is not a failure of training or experience. It is not a failure to make the right choice or options at a critical moment. It is just rushing through the job.

The Daily Kos comments on a medical study of colonoscopies published in a respected medical journal.

One of the main agenda items of Republicans is the need for tort reform, especially in the area of Medical Malpractice. Their argument is that frivolous lawsuits drive up the cost of medical malpractice insurance making health care even less affordable. They blame these increased costs for defensive medicine and insurance on the Democratic Party's alliance with the litigation bar.
No reasonable person will claim that any facet of our legal system is beyond criticism. And certainly, medical malpractice procedures need improvement. However, the need to wield this cudgel against excesses by Medical Practitioners is made clear by this article from the New York Times.
Friday's article "Study Questions Colonoscopy Effectiveness" expands on a report that shows there is wide variation in the thoroughness of this examination among experienced gastroenterologists.
The study, of 12 highly experienced board-certified gastroenterologists in private practice, found some were 10 times better than others at finding adenomas, the polyps that can turn into cancer.

One factor distinguishing the physicians who found many adenomas from those who found few was the amount of time spent examining the colon, according to the study, in which the gastroenterologists kept track of the time for each exam and how many polyps they found.

...it looks like a minimum of several thousand individuals who took the effort to have this uncomfortable examination will die simply because these board certified physicians wanted to squeeze some more patients into their day.
...far from practicing defensive medicine, there is still wide-spread flagrant disregard for the well-being of those who trust their doctors. This was not a report from "The Nation" or a liberal think tank. The primary research came from a report in The New England Journal of Medicine, published for and by physicians.
Medical Malpractice procedures should be reformed, but the threat of serious sanctions for incompetence or blatant lack of concern, must not be lessened.
This study is shocking because it shows the relationship between time expended and outcome so clearly. There must be better ways to control this type of dereliction of medical responsibility than our current tort system. But until that is put in place, we better keep the threat of financial ruin over the heads of those in whose hands we routinely place our lives.

Florida doctors and other medical providers sometimes suffer from the same "haste makes waste" approach to medical care. One common scenario is in post-operative care when the surgeon (carefully selected as the professional to perform the surgery) moves on to his next surgery or surgeries while the patient is in the care of others in a recovery room.

Originally posted at InjuryBoard by Bob Carroll

The Guessing Game We Call The Practice Of Medicine?

Bob Carroll — Wed, 24 May 2006 05:56:57 GMT

According to the American Prospect, your guess may be as good as mine (and your doctor's) about your medical problem.

It's easy to forget how much of American medicine is a guessing game, how your treatments are a composite result of your doctor's experiences, biases, treasured anecdotes, and personal reactions to his own training. Most folks think medicine operates off a rigidly defined set of standards: If you have symptom A, your doc orders tests B, C, and D. Not quite. According to a new study, doctors are ordering useless tests for asymptomatic patients at staggering rates. Of tests that aren't recommended for patients with a particular batch of complaints, we're spending between $12 million and $63 million. Worse yet, for tests with risks that outweigh the benefits for certain patients, doctors are ordering them against recommendations over 40 percent of the time, for a total cost reaching into the hundreds of millions. And that's not even getting into the ricochet tests and expenses that come from false positives found by unnecessary diagnostics.

Originally posted at InjuryBoard by Bob Carroll

The West Nile Virus Transplanted Along With Donated Organs

Bob Carroll — Wed, 17 May 2006 06:40:46 GMT

It is a medical miracle that organ transplantation has progressed so far. The New York Times reports on two transplants that transmitted the West Nile virus. The article raises difficult questions of screening and testing that deserve serious study and discussion.

In the antiseptic prose of medical journals, he was "the lung recipient," she "the liver recipient."
In real life, they were two desperately ill people who received transplants last August from the same organ donor, a brain-dead accident victim. Thanks to the surgery, they had a second chance at life. Or so it seemed.
For two weeks they fared well, he at the University of Pittsburgh and she at New York University Medical Center. But then, suddenly, they began to run fevers, deteriorate mentally and struggle for breath. Seizures and paralysis followed, and they sank into comas.
Tests found the West Nile virus. Both patients had been infected by the donor, whose blood was tested only after the recipients got sick. Two other patients received his kidneys, but remained well. The disease took its worst possible course in the liver and lung recipients, causing encephalitis, a brain infection.
Neither recovered. The woman who received the liver remained paralyzed and unresponsive, on a ventilator, according to her surgeon, Dr. Lewis W. Teperman, director of transplantation at New York University. After 68 days her family withdrew life support, and she died. Dr. Teperman said he did not have the family's permission to identify her.
The second patient, Dr. Sabih Aburegiaba, 69, is still alive. He is on a ventilator at a hospital in Queens, barely responsive, his prognosis uncertain and his family struggling to find the proper level of care for him.
Dr. Matthew Kuehnert, an expert on transfusion and transplant safety at the Centers for Disease Control and Prevention, said: "I think organ safety as concerns infectious disease transmission is really underappreciated. It's something that really needs to be looked at more closely."
Dr. Aburegiaba is in a kind of medical limbo. He has been shuttled to one institution after another, largely because of insurance issues and the payers' doubts about his potential to recover. At this point, Ms. Linehan said, the family hopes he will become stable enough to be taken home and cared for there, even on a ventilator.
The family is distraught, but also frustrated and angry, wondering why the donor was not tested, why the diagnosis was not made sooner, and whether the outcome would have been any different if it had. They say they feel that a man who devoted his career to saving the lives of others has been let down by his own profession.

Originally posted at InjuryBoard by Bob Carroll

Searching For The Frivolous Medical Malpractice Lawsuit

Bob Carroll — Sun, 30 Apr 2006 09:44:14 GMT

If it were possible to focus our attention on one really big issue in medical care would frivolous lawsuits be anywhere near the top of the list? Not according to Frivolous lawsuits? Pfft!, a post by Marie Carnes at Disarranging Mine. Marie, who says she has been a legal secretary for both plaintiff and defense lawyers for 30 years, has only seen one lawsuit that should never have been filed. Some might have called it a frivolous lawsuit.

On Evan Shaeffer's Legal Underground, the always thought provoking Unnamed Associate defines a frivolous lawsuit as:
"one that gets dismissed, either by a motion to dismiss because it doesn't state a claim, or on summary judgment because there's just no relief available under the law."
I have no disagreement with that.
By their recent ad blitz of billboards and radio spots, it appears the tort reformers would have the public believe that unnecessary lawsuits are being filed every day, all day. And, that the lawyers who file those suits are as vicious as wild animals on an Australian safari. Personally, I don't see it.
What I do see is something much more dire going on to which we should be devoting our attention. Something evil. And vile. And killing. A few examples:
Nursing homes: The more care you need in a nursing home, the less care you get.

Hospitals: The longer you're in a hospital, the greater your chance of being injured by the hospital.

Doctors who look the other way when they see mistakes by other doctors.

Doctors who cover up their mistakes by altering their patient records.
Personally, I think the tort reformers could better serve the public by addressing those issues. Go for it.

I have spent over 35 years representing the victims of malpractice and other acts of negligence and believe Marie's issues are valid ones, especially concerning the risks associated with hospital stays.

Originally posted at InjuryBoard by Bob Carroll