California Medical Malpractice Law Blog

In response to weeks of protests, the public database containing information about individual doctor's records of medical malpractice and disciplinary history has reopened. The National Practicioner Data Bank's public use file is now back on line, although with some significant new limitations. Now, anyone using the public files - such as journalists - must agree in advance not to share the data obtained or use anonymous information to identify individual doctors. Critics believe such a caveat is unworkable and exceeds the legal authority of the Health and Human services agency overseeing the Data Bank.

Currently, the data bank contains "anonymous" information about doctors who commit medical malpractice, such as individuals responsible for causing birth injuries. The information was taken off line after learning that it was possible to identify dangerous doctors from data bank information. However, determining which doctors place patients in harms way and commit medical errors is a significant pubic benefit.

As stated by a patient safety advocate, "The exclusion from access by reporters doing important investigative work..is unacceptable…Reporters will now have to agree to forgo this important, painstaking research they have previously done to bring more information to people about their doctors." For years, journalists have used the public database to help identify doctors who have long histories of medical malpractice and push for reforms and actions by state medical licensing boards. In fact, reports indicate that several California doctors with lengthy histories of medical negligence have not been disciplined by the state licensing board, allowing these doctors to continue practicing and putting patients at risk.

Exposing doctors who continue to practice despite a history of medical errors is a great benefit to patients and their families when choosing a doctor.

Continue reading "Medical Malpractice Website Reopens" »

A new medical error report from Public Citizen reveals that California’s medical board is not disciplining doctors found guilty of wrongdoing, including committing medical malpractice. Many times, this medical malpractice leads to catastrophic injuries, including birth injuries, and wrongful death.

According to the report, the medical board failed to take action against more than 700 health care providers who were disciplined for wrongdoing between 1990 and 2009. Medical errors included the failure to diagnose – or wrongly diagnose – patients, delivering medical care that did not meet the requisite standard of care, leaving surgical equipment inside a patient and substance abuse. In some instances, their peers designated the doctors as “an immediate threat to health and safety of patients.”

In past years, California has ranked in the top half of states when it comes to discipline, but has consistently dropped in rank. As of 2010, California ranked 41st with nearly half of the nation’s 220 most dangerous doctors – those who present an “immediate threat” coming from California.

Continue reading "California Amongst The Lowest States In Disciplining Doctors Who Commit Medical Errors " »

In a closely watched California personal injury case, the California Supreme Court has determined that an injured party is not entitled to recover undiscounted medical expenses when a third party has negotiated a favorable deal with the health care provider. This ruling has the potential to significantly impact the amount of medical costs recovered in medical malpractice and other personal injury lawsuits throughout California.

In Howell v. Hamilton Meats, a woman – Rebecca Howell – was injured in a car accident. As the result of the incident, she required medical care including several surgeries. At trial, a jury awarded her the full amount of her medical costs. However, the court reduced this amount to the actual amount paid by the insurance company on the bills. The discounted amount reflected a prior agreement made between the insurance company and her health care providers. In many situations, the amount an insurance company actually pays of a medical bill represents only a fraction of the amount stated in the ”real” bill.

On appeal, the appellate court determined that the reduction violated the “collateral source rule.” The collateral source rule provides that a damage award to be paid by a responsible party cannot be reduced if the injured person receives money from a third party source. The Supreme Court reversed the lower court, determining that the collateral source rule was inapplicable. The court reasoned that when an insurance company negotiates a prior agreement to pay less than the full amount due on a medical bill, those are not damages an injured party would otherwise recover.

The court stated that because the discounted amount does not “represent an economic loss for the [injured party] they are not recoverable in the first place.”

As noted in its dissent, the court expressed its concern that negligent parties may benefit unfairly from this ruling.

Continue reading " Howell v. Hamilton Meats Finds Injured Party Not Allowed To Recover Undiscounted Medical Costs" »

According to recent reports state regulators have never disciplined hundreds of California doctors from Los Angeles to San Francisco and throughout the state who have lost hospital privileges as the result of committing medical malpractice, incompetence and other serious errors. This means that in many cases, despite finding a history of medical malpractice leading to serious harm, many dangerous doctors are allowed to regain and even retain their licenses.

We rely on medical providers to offers us care and support during our most critical moments. While most medical providers offer excellent care, some providers do not hold themselves to a requisite standard of care. The failure to act appropriately may constitute medical negligence. Physician’s found guilty of medical malpractice may be subject to additional sanctions, including the loss of licensing and ability to practice at California hospitals.

The O.C. Register, summarizing findings exposed by the non-profit D.C. based Public Citizen raises some alarming concerns regarding the state of medical mistakes in California. This includes the finding that 710 physicians with privileges restricted by a California medical entity between 1990 and 2009 had never been restricted by the state board. This figure includes 102 doctors considered an “immediate threat to health or safety of patients.” Actions placing them in this category include doctors who are guilty of malpractice, incompetence, repeatedly leaving foreign objects inside
of patients and other dangerous practices.”

Due to a lack of response from the California medial board, Dr. Sidney Wolfe of Public Citizen has now contacted Governor Jerry Brown, itemizing several concerns to be addressed in order to improve patient safety and decrease the incidence of California medical malpractice. As California medical malpractice attorneys we are hopeful that changes will be implemented to improve the overall quality of care received by California patients.

Continue reading "Hundreds of Doctors Who Have Committed Malpractice Not Disciplined By Medical Board Of California" »

Recently, Sir Liam Donaldson – the World Health Organization’s Envoy for Patient Safety – issued the following medical error warning, “Medical errors and hospital-acquired infections injure more people each year than flying, but many aren’t aware of the risks.” In fact, the chances of dying from a medical error is a hospital anywhere in the world is about 1 in 300…[T]he risk a dying in a plane crash…about 1 in 10 million.”

Worldwide, medical errors and infection rates are as high as 16 percent. In the United States the risk is lower, but depends on the medical facility.

Often, it is simple errors that cause catastrophic injuries while hospitalized – such as the failure of medical staff to wash hands. The errors occur across the board. WHO notes, “The problem with hospital-acquired infections spans every level of economic development battling infections that are similar to those in less-developed areas of the world.” In fact, of every 100 patients hospitalized in a developed country, 7 will acquire at lease one health care-associated infection.

As San Francisco medical malpractice attorneys, we are hopeful that this report will raise awareness about patient safety and the epidemic of medical errors.

Continue reading "World Health Organization Declares Hospital Stays Riskier Than Flying" »

This past week in more of a political strategy than a legitimate move to reduce the deficit, the so-called “Gang of Six” Senators asked the Judiciary committee to find an “unspecified” amount of savings from medical malpractice reform – likely by limiting the legal rights of patients injured by medical negligence.

As stated by the nonprofit advocacy group Consumer Watchdog, “Limits on liability for doctors who commit medical negligence is a political bone for the Gang of Six … not a meaningful compromise that will provide real savings to help close the deficit.” Instead focus should be directed toward “solutions proven to reduce the cost of medical malpractice: improving patient safety and decreasing medical errors.”

While most medical providers offer excellent care, in some cases health care workers including physicians, nurses and hospital staff do not hold themselves to a requisite standard of care and may be guilty of medical malpractice. Medical malpractice may include unsanitary or unclean conditions, negligent care, surgical mistakes, hospital mistakes and many other issues.

As reported by the Department of Health and Human Services the impact of these medical errors lead to significant increases in the federal deficit. A 2010 HHS study reports that 1 in 7 patients experience a medical error, 44% of which are preventable. The cost of these errors is $4.4 billion a year.

Not only do medical errors cost taxpayers a significant amount each year, limiting medical liability saves little. The Congressional Budget Office estimates that savings would only equal about 0.5% of health care costs.

Continue reading "Gang Of Six Plan Limiting Medical Malpractice Liability Not A Real Fix For Deficit" »

A recent study reveals that more patients receive poorer quality medical care or even die at teaching hospitals during July as the result of experienced residents leaving for better opportunities, leaving inexperienced, new residents to take their place.

Dubbed the “July Effect,” the result is increased medical malpractice, characterized by serious medical errors that may harm or even kill patients. As stated by a director of Residency Training at the University of California –San Francisco School of Medicine, the effect occurs when “experienced physicians are replaced by new trainees who have little clinical experience, may be inadequately supervised in their new roles, and do not yet have a working knowledge of the hospital system. It’s a perfect storm.”

The study reveals some scary statistics, concluding that in July, patients are more likely to die – or receive less efficient care – in the form of longer hospital stays and surgery times, and more unnecessary tests. The turn over affects more than 100,000 U.S. doctors each year.

Some hospitals are aware of the effect and are trying to reduce its toll by having top doctors on call throughout July and finding ways to combat fatigue. Another suggestion has been to stagger residents start dates so that such an abrupt transition doesn’t occur each July.

Continue reading "July Effect May Increase Medical Malpractice" »

Recent news indicates that a $5.25 million medical malpractice settlement has been reached in a medical malpractice lawsuit between a woman and the doctor and hospital that negligently performed her spinal surgery. As a result of significant complications from the surgery, the woman’s left leg needed to be amputated.

Generally, we go to the hospital or seek a doctor’s advice to receive treatment or to heal a condition to improve our medical health. Although not every negative outcome is medical malpractice, when doctors or other health care providers fail to follow to proper procedures and an individual is harmed as a result, medical negligence or malpractice may have occurred.

Here, a woman went into the hospital to have spinal surgery – an “anterior transabdominal approach to the lumbosacral spine.” However, documents allege that post-surgery the hospital staff that cared for the patient failed to properly monitor and treat the woman, resulting in the loss of her leg. Medical malpractice not only refers to the actions of the treating physician – it may encompass the actions of everyone involved in providing care. The assistance you receive from each health care provider during your hospital stay including staff, nurses and physician, is held to a specific standard of care. A failure to meet that standard may constitute negligence.

Continue reading "Negligently Performed Spinal Surgery Yields $5.25 Million Settlement" »

The Los Angeles Times reports that despite medical residents working a reduced number of hours, they still commit an “alarming number” of medical errors.

Beginning July 1, rules will be implemented requiring first-year residents to work no longer than 16 straight hours, however more senior residents may still work longer hours. Citing significance incidences of medical error, a group of 26 doctor and patient experts are calling for all resident physicians to work in shifts no longer than 12 to 16 hours.

In a report resulting from a Harvard Medical School conference published in the journal Nature & Science of Sleep, one of the studies authors stated, “What started as a good system has evolved into a system where the residents are extremely sleep deprived, caring for some of the sickest patients in the country, and that’s a set-up for disaster.”

Statistics show that nearly 180,000 patients die each year due to harm resulting from medical errors committed by residents.

Other recommendations include residents receiving increased supervision by attending physicians and delegating routine work such as blood draws and paperwork to other staff. Although implementing new resident work rules costs money, the expense would be offset by reducing medical errors – as well as improving patient care. The author further notes “Few people enter a hospital expecting that their care and safety are in the hands of someone who has been working a double-shift or more wit no sleep…If they knew, and had a choice, the overwhelming majority would demand another doctor or leave.”

Continue reading "Reducing Residents' Hours Important To Reducing Medical Errors" »

Throughout the last several years, reports of hospital medical errors have been prevalent, with incidents of errors remaining steady, if not increasing. In fact, some reports have placed the number of medical errors occurring in a medical setting as occurring in 1 out of every 10 medical visits, with some 98,000 people dying each year due to medical mistakes.

Now comes a recent Journal of American Medical Association (JAMA) medical error study focusing specifically on medical errors that occur in a doctor’s office as opposed to a hospital setting. Based on the June 15th JAMA study, your chances of suffering harm from a medical error are about the same in a doctor’s office as in a hospital.

The most frequent type of error occurring in a doctor’s office is a missed or failed diagnosis. In fact, 46% of the outpatient medical malpractice claims involved diagnostic errors. As explained in the New England Journal of Medicine, diagnostic errors are a major source of problems, often not the result of a single mistakes but a series of break-downs in the process.” For every missed or late diagnosis, an average of three things went wrong. The harm resulting from the error included major injuries and death.

As stated by Tara Bishop lead author of the doctor's office error study, the “sheer number of out-patient related claims was surprising,” suggesting that a reduction in doctors’ office errors needs attentions. However, due the vast number of outpatient sites, addressing changes may be more challenging than in an inpatient setting.

Continue reading "Medical Errors As Common In Doctor’s Offices As In Hospital Setting" »

Bay City news reports that 4 Bay Area hospitals and 12 total California hospitals have been assessed administrative fines as the result of medical licensing violations that are likely to cause death or serious injury to their patients.

These hospitals include:

• Santa Cruz Domincan Hospital;
• Burlingame Mills-Peninsula Medical Center;
• San Francisco Kaiser Foundation Hospital; and
• Martinez Contra Costa Regional Medical Center.

Medical providers are supposed to offer use care and support during our most critical moments. When physicians, nurses or other hospital staff provide us care that falls below requisite standard, they may be guilty of medical malpractice.

Here, the hospitals cited all made significant errors that caused patients harm.

Among the medical errors cited include not following surgical policies and procedures, not following policies and procedures for safe distribution and administration of medication, and not following policies and procedures for on-going patient monitoring and assessment of patient care.

In one incident a the Contra Costa Medical Center, a nurse failed to check a drug label and gave an epidural medication rather than Oxycontin to a 25-year-old woman who gave premature birth. Kaiser Hospital was penalized for leaving a fetal scalp electrode inside a Cesarean section patient. The woman suffered a serious infection. At the Mills-Peninsula Medical Center, surgeons left a small sponge fragment in the eye of a glaucoma patient.

Continue reading "12 California Hospitals Fined For Patient Safety Violations, Including 4 In Bay Area" »

Reuters reports that a new study has been released showing an increased risk of complications and deaths from medical errors following emergency surgeries at teaching hospitals than at non-teaching hospitals. In fact, the study concluded that the chance of dying after an emergency surgery was 20% higher at teaching hospitals. Dr. Rachel Kelz, the senior author of the study, did not provide any specific reason for the finding, although some speculate that the type of patients selecting a teaching hospital may be more sick or have more complex cases than those go to non-teaching hospitals.

An earlier study released in March indicated that for those patients requiring complex surgeries, the risk of dying is lower at a teaching hospital.

For all patients however, the most important factor is safety and providing the best chance of a positive outcome. Medical providers are supposed to offer care and support during critical moments. When health care professional fall below the standard of care – causing harm and potential death – they may be guilty of medical malpractice.

Continue reading "Teaching Hospitals More Likely To Have Medical Errors Including Death After Emergency Surgeries" »

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.

Continue reading "Medical Malpractice – New “I’m Sorry Law” Enacted In Michigan " »

A recent article in the New York Times suggests New York lawmakers look at California medical malpractice laws as a “cautionary tale” concerning the real impact medical malpractice limits have on reducing insurance premiums and passing those savings on to physicians and hospitals.

California’s MICRA – passed in 1975 - caps “non-economic” damages in cases of medical mistakes to $250,000. MICRA has served as a model for similar proposals around the country. However, serious concerns have been raised concerning who really benefits from limits – doctors or insurance companies – and who is harmed.
Much evidence suggests that it is the victims of medical negligence who suffer the most as the result of the cap, often unable to find lawyers to represent them. Caps may make costly medical malpractice cases economically unfeasible for many firms to pursue.

Further, although enacting caps may have a limited impact on reducing insurance premiums, the savings are minimal. As stated by Kenneth E. Thorpe, professor and author of study concerning the impact of caps on insurance premiums, “Without question, it’s not a game-changer.”

Continue reading "California Medical Malpractice Limits Provides Lesson For New York" »

A new report issued by Public Citizen reveals that State medical boards did not discipline 55% of negligent doctors.

Based on reviews of hospital disciplinary actions and medical malpractice payments made on behalf of doctors who were an “immediate threat to health or safety, were incompetent or negligent, or provided substandard care,” the study determined that less than one-half faced licensing restrictions.

The study also found that in California, several doctors had up to 12 “clinical privilege” (hospital disciplinary) actions taken against them with no state licensing consequence. This means that even if a doctor has been found negligent, incompetent or guilty of medical malpractice – as many as 12 times – he may not face any state disciplinary action concerning his license to practice medicine.

In fact, one alarming statistic provides that many of the “disciplined doctors” had a history of medical malpractice payments but still were allowed to keep their licenses and practice, in many cases going on to commit medical malpractice, catastrophically injuring another innocent patient.

Continue reading "California Negligent Doctors Not Disciplined By State Medical Board" »

Contrary to what many doctors and politicians have been saying for years, insurance company practices are the reason behind high premiums – not payouts from medical malpractice lawsuits. In fact, the California Department of Insurance (CDOT) has just released a statement that medical malpractice insurance rates are too high because insurance companies are not paying out enough.

Medical malpractice occurs where a doctor or other medical professional fails to exercise the standard of care required and a patient is harmed or even killed as a result. When medical professionals are found liable and required to compensate their victims, many physicians rely on insurance policies to cover those costs.

However, it appears that many medical liability insurance companies are charging doctors too much and paying those harmed too little.

According to the study by CDOT, medical malpractice insurers are paying out only 2-3% of the premiums, keeping the rest of the money collected from doctors. CDOT noted that the “low loss ratios are one indication that premiums may be too high.”

In addition to hurting doctors by demanding high fees, consumers are hurt because victims of malpractice must fight insurers to get claims paid. As stated by David Heller, president of Santa Monica’s Consumer Watchdog, “The medical malpractice premiums in California have so much extra padding right now because the companies are taking premiums from doctors and hospitals but don’t have to pay much out in claims.”

Continue reading "California Medical Malpractice Insurance Rates Too High" »

Sacramento News reports that a family has filed a medical malpractice lawsuit after their daughter lost part of all four of her limbs due to a bacterial infection.

Malyia was brought into Sacramento’s Methodist Hospital with skin discoloration, persistent fever and weakness. Her condition continued to deteriorate as she waited for 5 hours in the emergency room. After her father demanded doctors and nurses treat his daughter, Malyia finally received attention. By then it was too late. Malyia had streptococcus A, and had to be flown to Stanford University’s Children’s Hospital. At Children’s Hospital, both her feet and her left hand were amputated. Part of her right hand also had to be removed.

During our most critical moments, physicians are supposed to offer us care and support – when these medical professionals' actions fall below the requisite standard of care, they may be guilty of medical malpractice. Physicians, nurses and hospital staff all may be found liable. Although not every unfavorable outcome is the result of medical malpractice, if you go into the hospital seeking treatment, and your condition is worse after receiving care, it is possible that the caregiver’s actions were negligent.

Continue reading "California Medical Malpractice Lawsuit Filed After Bacterial Infection Leads To Amputation" »

This past week, President Obama raised the issue of medical malpractice reform, commenting in his State of the Union address that he will look at ideas to bring down health care costs including “medical malpractice reform to rein in frivolous lawsuits.” House Republicans also introduced a bill modeled on California’s MICRA, which limits recovery to no more than $250,000.

The L.A. Times reports that many patients’ rights advocates were upset by Obama’s comments, especially the use of the phrase “frivolous lawsuits.” This term downplays the serious and devastating nature of many medical mistakes that leaves the families of some victims – often children and the elderly - without adequate compensation. Under California law, recovery for families of children who have suffered brain damage or other crippling injuries may be limited to $250,000 for a life-time of pain and suffering.

Continue reading "California's Controversial Medical Malpractice Law In The Spotlight" »

This week’s California Capitol Weekly published a compelling op-ed written by a physician – David Stewart - weighing in on the MICRA discussion. His editorial was in response to Dec. 16th article, “MICRA: Long-simmering dispute looming in Capitol.”

Stewart’s piece begins “My interest in MICRA, California’s law that limits pain and suffering compensation to $250,000 in medical malpractice cases, is twofold: I am both a physician and the son of a victim of profound medical negligence. I have firsthand experience with the implications and practical effect of MICRA.”

As a San Francisco medical malpractice lawyer I agree with many of the points Stewart raises in this editorial and have witnessed the unfortunate “real impact” of MICRA on the victims of malpractice. He details the agony of seeing a loved one harmed as the result of medical negligence – in this case his mother died after developing a post-operative complication. In his family’s search to find out what happened, they discovered health care professionals had deleted the relevant medical records. After ultimately decided to bring a lawsuit, his family then had difficulty finding an attorney to take the case.

Continue reading "California Medical Negligence – MICRA Impedes Victim’s Justice" »

Many studies have shown that mediation in medical malpractice cases leads to lower costs of litigation and a reduced rate of medical errors. However, a recent report revealed that despite the benefits, one key ingredient was missing – the doctors themselves.

A study published in the Journal of Health Politics, Policy and Law, reviewing 31 cases of mediation revealed the following:

• Plaintiffs’ attorneys were more likely to agree to mediation;
• Those who participated in the process were generally satisfied – this includes plaintiffs, hospital representatives and insurers; and
• No physicians participated in the process.

The study’s authors note that by failing to participate in the process, physicians miss out on some key opportunities – both in terms of human connections and improving patient safety. As explained by Carol Liebman to the Wall Street Journal Health Blog, the missed opportunities include the chance to “repair the relationship between human beings.” Lack of doctor participation also misses an opportunity to “collect information from patients, families and physicians to fill in the blanks of what actually happened, and if there was an error, to figure out how to prevent it from happening again. When you don’t have the involvement of the person who was involved in making those decisions, you don’t get valuable information.”

Continue reading "Medical Malpractice – Should Doctors Participate In Mediation?" »

A recent case has ruled Louisiana’s $500,000 cap unconstitutional against nurse practitioners. In Olivier v. Magnolia Clinic, parents sought damages for the treatment of her daughter by a nurse who was practicing with only a high school degree. Despite more than 32 visits to the Magnolia Clinic with complaints of diarrhea, nausea, and vomiting during the child’s first year of life, the nurse failed to consult with a doctor at any time. At age 14 months, the child was diagnosed with a neuroblastoma. Had the diagnosis been made earlier, she had a 90 percent chance of recovery. As a result of the delayed diagnosis, the child’s quality of life has been severely diminished.

At the conclusion of the medical malpractice trial, a jury awarded the family $6.2 million. However, due the provisions of the Louisiana Medical Malpractice Act, the award was reduced to $500,000. The Court of Appeals overturned this determination, finding the award reduction unconstitutional. The court reasoned that the cap violates the equal protection clause by discriminating against those severely and catastrophically injured by nurse practitioners.

While the debate over caps continues in Louisiana, California’s MICRA has been in place for over 35 years and continues to deny many catastrophically injured by doctors, nurses and other health professionals compensation for pain and suffering. However, compensation for is not limited for all damages, thus medical malpractice attorneys may be able to achieve higher awards for victims in certain situations.

Continue reading "Medical Malpractice Cap Against Nurse Practitioners Unconstitutional In Louisiana" »

Recent articles in the L.A. Times and California Watch have exposed the growing problem of patients suffering significant harm and distress in surgery centers across the state that have been operating free from regulation for over three years. In 2007, case law determined that a doctor licensed to practice medicine was not required to obtain a second license in order to open a surgery center. As a result of this decision, the State Department of Health no longer conducts inspections of hundreds of “surgery centers.”

Several cases have come to light of serious injuries and death resulting from treatment at such facilities. The LA Times detailed the story of a woman who bled to death following a procedure at an Anaheim Hills surgery center. Previous columns chronicled the story of Willie Brook Jr., a man who died after obtaining weight-loss surgery at a Beverly Hills surgery center. Reports indicated that complications from the surgery were partly to blame. Both of these matters resulted in medical malpractice cases.

Reports indicate that now only 45 surgical centers are state licensed. About 715 unlicensed facilities exist throughout the state performing various types of surgeries.

Continue reading "California Medical Malpractice - Surgery Centers Allowed to Operate Without Licenses" »

A recent study based on Colorado physicians indicates that despite the issuance of a “Universal Protocol” requiring clinicians to perform certain safeguarding measures, “wrong site” surgeries and “wrong-patient” medical errors continue.

As California medical malpractice attorneys we see too many “preventable” mistakes occurring throughout hospitals. More must be done to ensure that when patients seek treatment at a hospital, they don’t leave having suffering greater injury or harm.

Although not every unfavorable outcome following medical treatment constitutes medical malpractice, if you have concerns about your treatment consider the following:

• Is my condition significantly worse now than before treatment?
• Are my symptoms commonly associated with the treatment I received?
• Is the doctor able to give a satisfactory explanation for my symptoms?

Based on the Colorado study, researchers concluded:

• The main causes of wrong-patient procedures were errors in diagnosis and communication errors.
• The main causes of wrong-site procedure were errors in judgment and failure to perform a ‘time out’ prior to surgery.
• The largest single factor contributing to the medical mistakes is the inadequate planning of procedures.

Continue reading "Wrong Site –Wrong Patient Errors Exist Despite Protocols" »

According to the Stanford News, a new partnership has been formed between several health-care organizations to identify ways to improve patient care. At issue – reducing hospital errors that occur because of miscommunication.

A recent study reports that 80 percent of serious medical errors occur when patients are “handed off.” This includes the failure to provide all the necessary and critical information about one patient to the next clinician. In fact “poor hand-off communication” is a main factor in medical malpractice cases involving wrongful death or catastrophic injury. In addition to direct injuries to patients, improper hand-offs can lead to delays in diagnosis, inappropriate treatment, and prolonged hospital stays.

In an effort to improve this critical, and often inadequate process, the Joint Commission - the organization that accredits and certifies U.S. Hospitals - has developed a pilot program to help address errors that include: “senders” having little knowledge of the patient and providing incomplete information, as well as “receivers” being unaware of a patient transfer, and having little knowledge about the patient transfers.

Hopefully, this program will improve this significant problem that may potentially affect all patients throughout a hospital.

Continue reading "Stanford Hospital To Address Medical Miscommunication" »

Around the country - including in many of the recent elections - the issue of capping damages and tort reform has been a hot button issue – with proponents citing California’s MICRA (the Medical Insurance Compensation Reform Act) as an example of the effectiveness of caps.

MICRA was passed in 1975 by then Governor Jerry Brown in order to solve the “malpractice crisis,” ostensibly to retain doctors who were being driven out of the state due to inflated insurance rates.

Whether MICRA has had a positive effect on medical malpractice liability is subject to enormous debate. Those favoring reform credit it with reducing medical malpractice insurance premiums and preventing physicians from fleeing the state. Critics however, point to the fact that as a result of “caps” those with smaller claims have been squeezed out of the market with many not able to bring legitimate claims and recover for their injures.

Further, MICRA’s limits on non-economic damages - $250,000 – have not been adjusted for inflation since adopted in 1975. As a result, the $250,000 cap is worth less than $75,000 in today’s dollars.

Whether Governor-elect Jerry Brown will amend MICRA to reflect inflation, or change any of its current provisions will be watched closely by consumers, attorneys, doctors and insurance companies. Hopefully, crucial changes will be made allowing those who have been seriously injured as a result of medical malpractice to recover all the compensation they are due.

Continue reading "Will Governor-Elect Jerry Brown Amend MICRA? " »

A recent article published in the New York Times suggests that doctors could be immunized from malpractice liability if they were to follow clinical guidelines – the rationale being that if doctors used “evidence based guidelines” they could both improve quality of care and control costs.

Several problems exist with this theory. First, guidelines – despite their source may be unreliable. What works in one situation may not work in another. Complications may arise which require a physician to use his or her discretion to determine the best course of action. Following a guideline without modifying it based on the patient’s need may in itself be malpractice. Further, studies have shown that even when hospitals follow those guidelines – medical mistakes occur. The existence of “protocols” or “guidelines” does not prevent surgical errors. As recently reported in the New York Times, mistakes happen far too often, such as wrong site operations and the removal of a healthy organ rather than a diseased one.

Estimates suggest that the occurrence of mistakes has increased over the last several years. In fact, Dr. Stahel, director of orthopedics at Denver Health Medical Center states, “The data are shocking…[t]here are catastrophic events that are unacceptable. They have been termed a ‘never event’ – because they should never happen.”

Continue reading "Evidence Based Guidelines Not A Solution To Medical Malpractice" »

A recent case determined that a physician was negligent in failing to inform a patient about a test that would rule out a possible condition, even though he was not negligent in diagnosing him. The jury determined the physician violated Wisconsin’s informed consent law which provides that “[a]ny physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits of these treatments.”

Similarly, California Law sets forth specific guidelines regarding “informed consent.” Informed consent is more than just agreement to a particular treatment or procedure – it is your agreement to a proposed course of treatment based on receiving clear, understandable information about the treatment’s potential benefits and risk. You must be informed about all treatments available for your health condition, and the risks in receiving no treatment.

Although in some instances “informal consent” may be satisfactory, California law requires written consent for several specific procedures and treatments, including but not limited to, breast cancers, prostate cancer and research. Any discussion of a proposed course of treatment must take place before treatment is given.

In Jandre v. Physicians Insurance Co. of Wisconsin, a patient had had a stroke like episode and went to the hospital. At the ER, a physician’s initial diagnosis was that the patient had either had some sort stroke or Bell’s palsy. He subsequently ruled out ischemic stroke, but did not order a test to confirm this, and performed a CT scan instead. The patient was never informed that a different test could have been performed to rule out ischemic stroke. 11 days later, the patient suffered a massive stroke.

At trial, the jury awarded the plaintiff $1.85 million in damages plus post-verdict interest and attorneys’ fees based on a finding that the doctor was negligent in complying with the requirements of informed consent.

Continue reading "$1.85 Million Award for Negligently Failing to Obtain Informed Consent" »

A recent study performed by California Watch determined that for-profit hospitals across the state are performing cesarean sections at higher rates than nonprofit hospitals. C-Section deliveries now account for 32% of all births, an increase of more than 50% since 1996. At for-profit hospitals this number is higher, with women at least 17 percent more likely to have a cesarean section at a for-profit hospital than at a nonprofit hospital from 2005 to 2007. In California in 2008, more than 180,000 C-sections were performed.

While doctors have often blamed “defensive medicine” as the reason behind the dramatic increase in C-sections, the Pacific Business Group concluded that the reason is simpler - C-sections help a hospital’s bottom line. In fact, a surgical birth can bring in twice the revenue of a vaginal delivery. In addition to profits, some hospitals perform more C-sections for non-medical reasons – including a doctor’s patience and staffing schedules.

These findings underscore anecdotal evidence from around that country that rather than “defensive medicine” and the fear of lawsuits, profit motives play a significant role in the tests ordered and services provided.

As stated by a childbirth advocate, “[t]his data is compelling and strongly suggests that there may be a provable connection between profit and the cesarean rate.” C-sections should only be used in cases of medical need. Although often c-sections are required in the case of difficult births to prevent significant and long-term damage to infants, C-sections present their own possibilities for harm and may unnecessarily place a patient at risk.

While hospitals may not explicitly push C-sections for profit, subtle incentives to increase efficiency may have the same effect.

Continue reading "Cesarean Sections More Likely at For-Profit Hospitals" »

Last spring as part of the health care overhaul, President Obama agreed to fund demonstration projects to look at alternatives to the current medical malpractice litigation structure. In a recently published article in The Circuit, the online edition of the California Law Review, the Center for Justice and Democracy analyzed many of these state based litigation alternatives, including health courts and early offer laws, and determined that both patient safety and compensation suffered.

This in-depth article concluded:

“None of the litigation alternatives currently proposed enhance patient safety while ensuring that injured patients are compensated. Limiting patients’ access to court and compensation for their injuries does nothing to increase patient safety. Reducing financial accountability on hospitals when errors occur will likely negatively impact patient safety. And allowing hospitals to control the fact-finding process surrounding medical errors also reduces transparency and, ultimately, accountability.”

As medical malpractice attorneys we’ve seen first hand the devastating impact medical malpractice can have on individual patients and their families. Restricting victim’s access to court, capping damages and giving hospitals more control over the decision-making process only serves to further harm patients and deny them real justice after suffering a catastrophic injury.

Rather, focus should be placed on advancing patient safety instead of “litigation alternatives.” In fact, litigation can play a role in improving patient safety by holding those physicians, hospitals, and caregivers accountable for their acts of negligence.

Continue reading "Medical Malpractice Litigation Alternatives Fail To Enhance Patient Safety Or Ensure Adequate Compensation" »

In a recently published article in Health Affairs, Dr. Robert M. Wachter, a professor of medicine at the University of California, San Francisco, warns of an important but neglected issue in medical care - diagnostic errors. In fact, the proper diagnosis is the first and most essential step in the treatment process. Common areas of failed diagnosis occur with patients who have suffered strokes, head or brain injuries, and cardiac problems. Diagnostic errors often occur with certain types cancer patients as well.

As stated by Dr. Wachter, "[T]he topic of diagnostic errors has been strangely absent from the flurry of patient safety activity over the past decade." However, diagnostic errors occur in an average of 10 percent of hospital visits.

Finding a solution to diagnostic errors may be difficult. Proposed ideas include "better thinking" by physicians, promotion of activities that improve diagnostic safety, and the meaningful use of technology.

Despite the occurrence of diagnostic failures, physicians are required to recognize potential symptoms in patients and test for them. When physicians fail to diagnose an illness or a disease and a patient suffers as a result, he or she may have a claim for medical malpractice.

Continue reading "Reducing Diagnostic Errors Critical To Patient Safety" »

In a request that could have widespread implications, the Los Angeles Times reports that L.A. County supervisors are seeking doctors’ peer review documents from Olive View-UCLA Medical Center. After receiving an anonymous letter that peer review of the practices at the neo-natal ICU was absent, the county requested access to two years of documents. The county claims access to these documents is necessary in order identify potential patient safety problems and better inform the board’s decision-making process regarding medical malpractice claims.

Allowing the supervisors access to the peer review process could be the first step in determining where and how errors occurred and preventing these errors from happening in the future. Patients would be better served by allowing oversight of the peer review process. As stated by Supervisor Molina, she has learned from the closing of other area hospitals not to trust medical staff to police themselves.

The county’s request comes after several significant settlements of medical malpractice claims based on actions that occurred at Olive View, including post-operative infections, failures to diagnose, and delays in delivery.

Changes in procedures often are not made until it’s too late – after medical errors are made and injuries result. While maintaining confidentiality and providing physicians a forum to discuss errors is critical – oversight that this process is actually occurring and that steps are being taken to ensure the same errors don’t occur again is necessary.

Continue reading "Los Angeles County Board Seeks Hospital’s Peer Review Records" »

The Los Angeles County Board of Supervisors recently approved a $198,000 settlement for a woman – Ana Jimenez-Salgado - who mistakenly received a double mastectomy at Los Angeles County-USC Medical Center after pathologists misread her biopsy as cancerous. Tissue obtained during the procedure confirmed she did not have cancer. Jimenez-Salgado underwent reconstructive surgery after the mastectomy.

Jimenez-Salgado filed a medical malpractice lawsuit, alleging that the hospital was negligent in relying on the interpretation of outside pathologists and that the breast reconstruction surgery was negligently performed.

The county admitted that it failed to review the biopsy specimens before proceeding with the mastectomy.

It is unknown exactly how many erroneous procedures are performed in hospitals around the country. However, errors occur in 7% of inpatient surgeries and wrong site surgery events constitute nearly 13% of medical mistakes. One of the main culprits – involvement of multiple parties or physicians in the course of treatment.

Here, outside pathologists reviewed the biopsy but those operating failed to consult the findings prior to surgery.

A recently released study shows that when doctors admit mistakes, say, “I’m sorry” and offer compensation, fewer patients file malpractice lawsuits.

Although encouraging doctors to “do the right thing, ” by disclosing errors to patients and their families and apologizing for their mistakes, more needs to be done to ensure keep preventable medical mistakes from occurring in the first place.

Continue reading "Los Angeles County Settles With Woman Who Mistakenly Received A Double Mastectomy " »

In July, the California medical board accused Dr. Wu-Hsiung Su of five counts of gross negligence and one count of incompetence in the treatment of a Rancho Cordova woman, Ruth Aleman.

The family of Aleman recently settled a wrongful death lawsuit against Dr. Su arising out of his failure to diagnose Aleman’s breast cancer.

Although symptoms of cancer can vary greatly, physicians are required to know the potential symptoms and be able to recognize them in patients. Further, physicians are required to perform routine tests and diagnostic procedures in patients who have symptoms of any type of cancer. A physician may be guilty of medical malpractice when his or her care falls below the “standard of care” established by other professionals.

Here, allegations included a failure to disclose to Su an abnormal mammogram, a failure to order appropriate follow-up studies, and a failure to properly examine a lump in her breast.

Allegations of misconduct are not new to Su. In 1991, the medical board of Rhode Island reprimanded Su for failing to recognize the severity of a patient’s back pain that ultimately led to permanent neurological damage. In 1994, Rhode Island’s medical board disciplined Su for failing to recognize that one of his patients had diabetes. And in June, a lawsuit was filed against Su for wrongful death and medical negligence arising from the care of a developmentally disabled man who was injured and eventually died after a fall at a nursing home.

Su lost his license to practice medicine in California, but it was restored conditionally in 1995 and fully restored in 2001.

Sadly, although most doctors provide quality care it may be difficult to weed out those committing misconduct. In a recent study published in the Journal of the American Medical Association (JAMA), a whopping 17% of physicians reported having direct contact with an impaired or incompetent colleague practicing medicine, but 1 in 3 chose not to report the error.

Continue reading "Doctor Accused Of Failed Diagnosis Continues To Practice " »

As recently reported in the New York Times, the number of radiation overdoses experienced by patients receiving stroke scans is more widespread than previously thought. At least 400 patients received “higher-than-expected” radiation doses at 8 hospitals – including 6 in California, such as the University of South California Medical Center, Bakersfield Memorial Hospital, and an unidentified hospital in San Francisco.

As a result of excessive radiation, several patients noticed hair loss, often in the form of a band of hair missing around the entire circumference of their head.

Although not every bad outcome constitutes medical malpractice, if you’ve received medical treatment and suffered an unexpected or unfavorable outcome, you may want to ask yourself the following questions:

• Is your condition worse following treatment?
• Are your post-treatment symptoms commonly associated with the medical treatment you received?
• Is your physician able to give a satisfactory explanation for your symptoms?

The New York Times reports that not only were a greater number of people affected by the “stroke scan” overdose than initially believed, but also the effects were more serious. In addition to hair loss, those receiving radiation overdoses risk possible memory loss, brain damage, and cancer.

Other findings by the New York Times include a lack of oversight and training of both the hospital technicians and the manufacturers of the scan equipment. According to interviews, some of the personnel didn’t know how to operate the equipment while others used high levels of radiation to improve the quality of the images.

Further, despite the excessive doses of radiology, regulatory agencies such as the FDA did not step in - primarily because hospitals stated no mistakes were made.

Continue reading "Radiation Overdoses In California Stroke Scan Patients Widespread " »

President Obama is weighing the suggestions of the insurance industry to mandate that all claims against health care providers go before a "health court". Though no one seems to know with any certainty what a "health court" would look like, most believe that it would be modeled after the workers compensation system. The health courts would apply universal standards of care to each case, which proponents of the system argue will result in a consistent results. Those in favor of the system also contend that it will weed out frivilous lawsuits better than the current system. Those opposing the health courts point out that there are very few frivilous lawsuits against health care providers, that developing universal standards of care would be impractical, and that the jury system is the fairest forum for justice for patients and health care providers. There are fewer claims being filed against health care providers in most jurisdictions, and the jury verdicts have remained nearly the same over the years, which has lead some to question the need for health courts and the abdiction of the right to trial by jury.

San Francisco Superior Court presiding Judge James McBride recently told local attorneys that "We're burning the hull of the ship to keep the boiler running." This comment was in response to a projected $10.7 million budget deficit for the next fiscal year. The court has frozen hiring, cut off travel and it's reserves are low. Many courts across the state, including San Francisco Superior, have implemented mandatory furlough days which typically close each court room for one day per month. The concern among the local bar is that the budget crisis could result in additional furlough days and the closure of civil departments. That would delay or even preclude justice for every aggreived person or business who is seeking to be made whole by the negligent or intentional misconduct of others.

The New England Journal of Medicine recently reported that a Harvard study has found that the legal system successfully weeds out claims against health care professionals that have no merit. This comes as a surprise to the American Medical Association, and other medical groups and insurance companies, who have long contended that the laws regarding the liability of health care professionals are too liberal and that tort reform is necessary.

The study was conducted by the Harvard School of Public Health and Brigham and Women’s Hospital in Boston, found that 90% of all claims against health care professionals involved a severe injury; 26% of those resulted in death and 80% in disability. The study reported that 63% of the injuries were due to the negligence of a medical professional and that the overwhelming majority of those claims thought to be without merit did not result in compensation.

This study, which some believe is another nail in the coffin of tort reform, substantiates what plaintiff and defense lawyers have known for a long time; that tort reform is a response to a campaign of misinformation orchestrated by insurance companies that gives preference to insurance company profits over the rights of health care professionals to affordable insurance and the rights of those they inadvertently injure.

California enacted the Medical Compensation Reform Act (MIRCA) in 1975 that, among other things, limited pain and suffering awards against health care providers to $250,000. The damage limitations of MICRA will likely not apply to those who have been injured as a result of Kaiser’s alleged failure to properly administrate their kidney transplant service.

California Civil Code § 3428 states that a health care service plan or managed care entity, such as Kaiser, has a duty of ordinary care to “arrange for the provision of medically necessary health care service to its subscribers and enrollees…” California Civil Code § 3428 (j) states that damages recoverable for a violation of this statute are not limited by MICRA.

Practically speaking, this means that for those who lost family members, or were otherwise seriously injured, as a consequence of Kaiser’s alleged misadministration of their transplant service, their pain and suffering damages will truly reflect their actual losses and not be limited by the draconian measures of MICRA.

In response to patient protests, California HMO regulators announced on Wednesday, May 10, 2006 that they will oversee Kaiser Permanente’s kidney transplant unit in San Francisco in an effort reduce undue delays in facilitating kidney transplants. Presently more than 2,000 Northern California Kaiser patients are waiting for kidney transplants. Kaiser patients have reported considerable delays in obtaining kidneys; delays which are allegedly caused by lost paperwork, poor communication with staff members and problems transferring their seniority from other institutions. At a recent news conference, Cindy Ehnes, the director of the state Department of Managed Health Care referred to a statistic that showed that more than twice as many patients on Kaiser’s transplant waiting list had died than had received new organs.

It is presently unknown if patients have died, or were seriously injured, as a result of these alleged administrative problems at Kaiser. Those who were injured, and possibly their families, may have statutory rights under the laws of the state of California and should consider seeking legal advice.

Medical providers are supposed to offer us care and support during our most critical moments. While most medical providers do offer excellent care that will help us to heal, some providers do not hold themselves to a requisite standard of care. When these medical professionals fall below this standard of care, they may be guilty of medical malpractice. San Francisco law firm Bostwick, Peterson & Mitchell represent clients who have been injured due to the negligent or wrongful actions of a medical provider.

Physicians, nurses, all members of hospital staff, and any other individuals providing care to a patient may be guilty of medical malpractice. Our San Francisco attorneys have represented clients who have suffered devastating injuries due to the actions or inaction of a variety of medical professionals. Medical malpractice can include unsanitary or unclean conditions, negligent care, surgical mistakes, hospital mistakes, failure to diagnose, nursing home abuse, and many other issues.

It is important to remember that not every unfavorable outcome following medical treatment is a case of medical malpractice. San Francisco attorneys at Bostwick, Peterson & Mitchell encourage potential clients to ask themselves the following questions:

Is the patient’s condition significantly worse now, following treatment?
Are the symptoms the patient experienced following treatment commonly associated with the medical procedure he or she underwent?
Is the physician able to give a satisfactory explanation for the patient’s symptoms?
If your physician cannot answer your questions satisfactorily, you may have been a victim of medical malpractice. San Francisco attorneys at Bostwick, Peterson & Mitchell encourage you to contact a medical malpractice attorney at our firm today.

Pediatric Meningitis
Failure to Diagnose – Cardiac & Cancer
Radiation Injury
Anesthesia Injury
Suicide
Kaiser Medical Malpractice

$9.9 million - Confidential largest medical malpractice settlement in California history; involved cardiac death of young executive.

Our wrongful death attorneys in San Francisco recently settled a case involving the death of an athletic 38-year-old executive, who stopped at a clinic on his way to the airport complaining of exert ional and resting chest "tightness," which was relieved by Advil. The EKG was normal; there were no cardiac risk factors. The doctor diagnosed chest muscle strain and allowed the decedent to fly on to Colorado and then Mexico. He died 7 days after the clinic visit. Unfortunately, his tissue was severely decomposed when it was returned to the United States. There was no evidence of myocardic infarction, but there was an 85% sclerotic lesion in the right coronary artery and congenital narrowing of the left coronary artery. We contended that the decedent died of myocardio- ischemia. Defendants argued that the decedent appeared healthy and in no distress and therefore the clinic symptoms were not cardiac and his death was probably from some other cause. Our wrongful death attorneys believe that this is the largest pre-judgment medical malpractice settlement in California history.