Articles Posted in Medical Malpractice

In our previous post, we looked at the VA’s recent admission that it failed to provide qualified professionals to conduct proper screening for traumatic brain injury on thousands of patients. As we noted, such a failure would ordinarily be considered grounds for liability were it not for the fact that medical professionals working for a government institution are immune from personal liability for negligence.

Under the Federal Tort Claims Act, federally supported health centers, their employees and eligible contractors are considered immune from lawsuits and the Federal government acts as their insurer. This means that those who are treated at health centers funded by the Health Center Program are unable to sue individual physicians and staff members, or the institutions, for medical malpractice or medical negligence. 

Immunity only applies, though, when the employees are acting within the scope of their employment. The scope of employment rule would exclude actions taken by federal health care employees which are clearly not part of their job duties. Typically, though, this will not be a major issue in FTCA litigation.

In a prior post, we highlighted the prospective success of safe harbor provisions, which essentially protect physicians who want to give alternative recommendations when medical procedures don’t go as planned. These provisions are envisioned as a way to improve health care; which in turn, may limit medical malpractice lawsuits.

However, there are also apology laws that encourage physicians to express regret and sympathy when patients are injured due to medical errors. Aside from giving an avenue to humanize doctors, it also appears that apology laws may help to resolve medical malpractice cases. 

According to a study produced by the American Urological Association, the mean litigation length was just over three years in states that had apology laws compared to 5.6 years in states without such laws. The goal behind these laws is to encourage apologies without the threat of litigation, as a physician’s expressions of regret or sympathy could be used in future litigation in New York.

With 12 months in a year, it can be difficult to keep up with the numerous causes that monthly awareness campaigns bring forward. Awareness causes, however, provide crucial opportunities for communities to become informed and take steps that might save lives. 

The month of May boasts various awareness campaigns. This is one of two posts that will outline one of just a couple of health conditions that threaten the quality of life of so many people in New York and beyond. Let’s discuss mental health awareness.

The National Alliance of Mental Illness warns that mental illness can be hard to identify and, therefore, to diagnose. Medical care providers might not initiate conversations about mental health conditions unless a patient brings up their concerns. The following are some  symptoms that should prompt an important conversation with a doctor:

It may seem as though you have an obvious, “slam dunk” case when you are affected by a medical mistake, but even if you bring legal action against a doctor, institution or both, you will have to prove your case. And the doctor and/or institution will build their own defense to the case.

With that in mind, it is imperative to understand what kind of defense tactics the doctor and/or institution will utilize in a medical malpractice case.

First of all, every case is different, and every state is different. Understanding how the medical malpractice laws apply in your state is critical to building your case — and to prepare for the defense.

A new report released in the journal BMJ concludes two very frightening aspects of medical errors. The first is that there may be many more medical errors that actually occur then we are aware of. And the second is that the number of medical errors that occur in the United States ranks them as the third leading cause of death in the U.S. behind only heart disease and cancer.

The report went into a little more detail. The researchers estimated that more than 251,000 deaths per year in the U.S. are related to medical errors. That far exceeds an oft-cited study from 1999 which estimated that somewhere between 44,000-98,000 people die every year as a result of a medical error. Subsequent studies, though, have shown increasing predictions for the number of deaths related to medical errors.

The report also criticized death certificates because they don’t ask for enough data — and that, researchers believe, may be leading to fewer medical errors being reported than are actually occurring.

In our last post, we began looking at the issue of medication errors, particularly the fact that the electronic systems used by physicians in many hospitals allow a significant number of potentially harmful errors to go undetected. As we noted, not every medication error results in harm to a patient. In many cases, the error is inconsequential or has a minimal impact on the patient. In some cases, though, medication errors can have more serious consequences.

Medication errors can take various forms. An obvious mistake is for a provider to make an incorrect drug selection, but it can also occur that the drug is not administered at the correct time, is administered incorrectly, or that an expired drug is administered. Errors may also occur in reviewing a prescribed drug regimen for appropriateness. 

Depending on the type of error in question, there can be a variety of causes for medication errors. According to the American Society of Health-System Pharmacists, common causes of medication errors include poor physician handwriting, improper transcription of prescription, confusion about drug nomenclature, and inaccurate calculation of drug dosage. Failure of electronic health records systems can, as we’ve noted, also be a cause of medication errors as well. Physicians are not the only possible liable party, either. Other medical staff, including pharmacists, can make errors with medications which end up negatively impacting a patient.

Medical malpractice comes in many different forms, but medication errors are a particularly common occurrence in hospital settings. Electronic systems have been developed to help reduce medication errors, and they have been a huge help. The use of computerized physician order entry systems has been highly encouraged by the federal government, and nearly all hospitals use these systems.  Unfortunately, there are still too many mistakes made with medication.

According to a recent report by data analytics company Castlight Health and the hospital rating company LeapFrog Group, computer systems designed to address medication errors still fail to catch around 13 percent of potentially fatal drug-related mistakes. The research also shows that roughly 40 percent of the most serious and common errors are able to slip by these systems. 

The recent study adds to the growing body of evidence showing that improvements still need to be made to computerized physician order entry systems. Previous studies have likewise shown that computerized physician order entry systems sometimes fail to detect inaccurate patient information.

Last time, we began discussing the currently volatility in the New York medical malpractice market. As we noted, the situation not only puts physicians at risk, but also patients who attempt to sue physicians covered by insurance providers who become insolvent.

We mentioned that the number of medical malpractice claims has decreased in the last decade—dropping 32 percent between 2004 and 2014—but there is also the fact that payouts on claims are decreasing as well. In such a situation, insurance companies can maximize their profits since they aren’t paying as much on claims. Again, it remains to be seen how the situation will be addressed by regulators and lawmakers, but patients are bound to be affected in some way if nothing is done. 

Quickly filing a medical malpractice claim when one is harmed by a physician is not necessarily the best solution. When a patient suspects he or she may have suffered injury at the hands of a negligent physician, what really needs to be done is to consult with an experienced attorney who can look at the case and determine what evidence there may be to support a claim for medical malpractice. If there is merit to the case, it needs to also be determined what types and amounts of damages likely to result from the bringing the case.

Medical malpractice liability is an important factor for physicians in every area of medical care. The costs associated with malpractice liability can be significant, because the costs of medical negligence are often so great for injured patients.

Each state has a slightly different landscape when it comes to malpractice liability. In New York’s current system, there are five medical malpractice carriers, each of which is required to pay into a guaranty fund serving as a safety net in the event one of the insurer’s fails. Out-of-state carriers are not bound by the same requirement, and can thus charge less for coverage. In-state providers are having a hard time competing with the low rates of out-of-state providers, and this isn’t really a benefit to patients. 

There are undoubtedly many factors affecting the current medical malpractice market in New York, and there isn’t necessarily a whole lot individual patients can do about it. Perhaps lawmakers and state regulators will come up with a solution to the problem, though it isn’t clear exactly what they would do to address it. One of the factors is that a significant number of insurance providers have come into the New York market in recent years because of a variety of factors. Because federal law exempts out-of-state providers from the state’s regulatory requirements, instability has resulted.

There is always some potential for something to go wrong in terms of medical care. In some instances the problem that occurs is very minor and sometimes even goes unnoticed. In other circumstances, the issue could have some very serious consequences, especially if the problem is not identified in its early stages.

Oftentimes, even if a patient suspects that there is some kind of problem in terms of their medical care, they may refrain from bringing it up or discussing it with anyone because they wholeheartedly trust the medical professionals working on their case. Telling a doctor that they are making a mistake can be extremely difficult for some individuals, especially those that tend to be quiet. Furthermore, a person who is incapacitated to any degree may not be able to speak up at all.

But in many serious medical negligence cases, there comes a certain breaking point. It’s a point where the consequences of the negligence are seen very clearly, such as severe side effects from taking the wrong medication. In these cases a patient might feel angry or upset and wonder what they can do to remedy the issue.