California Medical Malpractice Law Blog

Under California law, although a physician’s statement of fault is generally admissible in a medical malpractice action, when doctors tell a patient “I’m sorry” after a bad outcome or adverse event, these apologetic or sympathetic statements are inadmissible in a court of law.

However, if the doctor makes these statements to a friend or other non-family member, in some cases the apologies may be used to show liability.

A growing number of states have similar “I’m sorry” laws, with Michigan being the latest to join this trend. Last week, Michigan’s Governor Rick Snyder signed new “I’m sorry” legislation aimed at protecting doctors who express sympathy or compassion to patients. The new law provides that saying “I’m sorry,” as related to a patient’s pain, suffering or death can’t be used as an admission of liability in a medical malpractice suit.

Encouraging doctor patient communication is definitely positive - as is dispelling the anger that follows the occurrence of medical errors, and doctors failing to admit that an error occurred. However, many insurance companies still advise their health care providers to avoid making apologies.

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A Burbank jury has returned a $4.5 million jury verdict in a medical malpractice wrongful death case.

The lawsuit involved a 51-year-old man, Thomas Miller, with a misdiagnosed heart condition. He went to see his physician complaining of heart pains and died after being administered a stress test.

A proper diagnosis is the first – and perhaps the most important – step in the treatment process. A failure to diagnose a problem correctly means that treatment may be delayed and can lead to serious harm, even death. Medical providers are responsible to perform tests in accordance with the standards set in their field. The failure to do so may constitute medical malpractice. Although symptoms of cardiac stress vary, physicians are required to know the symptoms, recognize them in patients, and perform certain diagnostic procedures.

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Recently, increased attention has been paid to radiation injuries and the potentially harmful impact to children from CT scans. Last week, a Los Angeles Times article discussed the growing concern that CT scans are exposing our children to unsafe levels of radiation as the result of trips to ER rooms.

The article pointed to statistics indicating that children are undergoing far more CT scans during ER visits than 13 years before, with 90% of these exams in hospitals that don’t specialize in pediatrics and may fail to take into account special needs of children. A large number of both abdominal and head scans were performed – with CT scans of the abdomen exposing children to seven times more radiation than head scans.

Although inappropriate exposure to radiation can be physically devastating to any patient, for children the effects may be far worse with a greater potential for long lasting harm. With each CT scan, patients are exposed to radiation, which builds up in the body. For children the potential for harm is increased, depending on a child’s size, age and dose of radiation. When the medical professional performing radiation therapy acts negligently or wrongfully and the patient is harmed by the radiation – they may be guilty of medical malpractice.

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For adults and children facing surgery, anesthesia can be invaluable and in most cases safe and effective. Where an anesthesiologist fails to properly administer the drug, a patient can experience serious physical harm. In such instances, the patient may be a victim of medical malpractice. Now, recent articles are pointing to the growing concern about the effects of even the appropriate use of anesthesia on young children.

In March, the New England Journal of Medicine published a study evaluating the implications of general anesthesia on children and the potential for brain injuries. The study revealed that a growing body of evidence suggests that under certain circumstances, the use of general anesthesia may lead to cognitive problems or learning disabilities. As a result, special considerations are necessary when administering anesthetic drugs to young patients to avoid causing an anesthesia injury.

In order to address these concerns, the FDA has formed a panel to evaluate anesthesia injuries. One of the main goals of the panel is to provide better communication about the risks of injury with parents whose children are facing surgery and the need for anesthesia.

Although anesthesia is a critical component in managing pain, it is critical to determine a better understanding of exactly what risks children face, and whether the dose, age, and length of exposure affect the extent of the cognitive or neurological injury. Also, the type of potential injury children face is being examined. Dr. Randall Flick, a professor of anesthesiology and pediatrics at the Mayo Clinic is researching whether anesthesia exposure is related to autism or attention disorder.

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