Articles Posted in Medical Malpractice

Today’s modern mega cruise ships are engineering marvels. They include elaborate boulevards that resemble actual city blocks and shopping malls. They have multiple signature restaurants, waterslides, ice skating rinks and even rock climbing walls. They also have state-of-the-art medical facilities to handle people who become sick or injured in the course of having fun on their cruise.

However, if a patient is sickened or injured because of a doctor’s negligence, the patient was usually out of luck. Medical malpractice cases against cruise lines were commonly dead on arrival because of maritime laws that generally insulated cruise ship medical staffs from liability in U.S. courts. 

Nevertheless, a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit may change this going forward. Essentially, the court rejected the application of the so-called “Barbetta rule” which immunizes a shipowner from liability under the legal theory of respondeat superior when a ship’s employees are negligent in rendering medical care to passengers. Because of this, a wrongful death action based on medical malpractice alleged against a ship’s doctor on a Royal Caribbean cruise ship was deemed worthy of going forward. It was initially dismissed by the trial for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

In our prior post, we talked about how caps on non-economic damages could be harmful to medical malpractice plaintiffs, in that they may not compensate injuries that involve a great deal of pain and suffering or long-term emotional injuries. With these scenarios possible when medical negligence mars procedures involving reproductive organs or victims of sexual assault, could it be that some malpractice victims are treated differently than others?

According to a study about women, children and elderly medical malpractice victims, it appears that their injuries are largely compensated through non-economic damages, which are capped at $250,000 in a number of states. 

Essentially, damages caps create an unfair value system where certain members of society may not recover what they should be entitled to based on the nature of their injury. Instead, damages may be determined on a person’s earning capacity. Since women tend to be awarded more than men when it comes to non-economic damages, such caps could be seen as discriminatory and work towards an unequal system of access to justice.

In a prior post, we highlighted the breaches in procedure and improper actions taken by physicians that led to Joan Rivers’ death. Essentially, there were critical errors that if they were abated, could have saved Rivers’ life.

While the Rivers’ case appears to be a straightforward case of negligence, many other medical malpractice cases are not so clear cut. This led us to think about potential things that patients could do to help them avoid medical malpractice cases. This post will identify a few.

Speak up – Doctors are trained to diagnose medical conditions and make recommendations on how to treat them. However, you know your body much more than a physician can. So if you feel that something is wrong but doctors are telling you that everything is alright, speak up for yourself and not simply rely on one opinion. After all, it is your body and only you have to deal with the consequences if something goes wrong.

As a patient, you may not be as concerned with certifications as a physician might be; but perhaps you should. Indeed, doctors may believe that certifications are an important measure for keeping abreast of the latest recommendations and best practices for a particular field. When doctors are into continuing education, the patient stands to benefit as well.

Take Arizona Cardinals quarterback Carson Palmer. He went down with an injury during last Sunday’s game. It was discovered that he tore his ACL, unfortunately on a play where crumpled to the field untouched. Palmer is likely to trust his surgery and subsequent rehab to someone who is certified by the National Academy of Sports Medicine (NASM) and/or the American Orthopaedic Society for Sports Medicine (AOSSM). 

Certification by these groups inherently means that they are up to date on the latest techniques for surgery and post-operative care. Doctors who continue to hone their craft by obtaining these certifications are less likely to fail to use reasonable care during a procedure or during the rehab period. For instance, these physicians can advise on the best times after a catastrophic injury has occurred to have surgery. So while you may not have a professional football career to earn a living, medical negligence can occur regardless of your income.

Indeed, physicians have difficult jobs where there may be times where they must make split second decisions that can have critical implications on patients’ lives. This is why they go through extensive training in order to properly diagnose illnesses and injuries and to make care recommendations accordingly. Despite the difficult nature of their profession, doctors must use reasonable care when performing their duties.

However, in situations where doctors are acting as Good Samaritans in emergency situations, should they be held to the same standards? More importantly, should a patient injured by a doctor in this position be able to initiate a malpractice suit?

This is an important question given that doctors may have an ethical duty to assist members of the public in the event of an emergency. Nevertheless, Good Samaritans are protected in a number of situations under New York law, including where:

There is a notion in the medical community that over-testing and over-treatment of patients (i.e. defensive medicine) is practiced in order to limit the risk of future medical malpractice cases. While there may be some truth to this notion, a recent publication in The BMJ suggests that the overall culture in the medical community, as well as the attitudes among physicians may be more of a reason for defensive medicine than the specter of a medical malpractice claim.

Essentially, the culture of intolerance towards uncertainty and error among physicians themselves is the driver of over-testing and over-treatment. Doctors appear to perpetuate a culture where uncertainty in treatments is unacceptable; almost as if they have to be perfect with every diagnosis and recommendation for treatment. Indeed, there is an obvious incentive in being accurate, but when it deteriorates into medicine that does not focus on the best treatment for the patient, the culture behind it should be changed.

Because of this, two highly regarded professors argue that professional and public attitudes towards medical errors must be changed. This goes beyond medical malpractice reform, as the financial incentives presented to doctors along with the persistent marketing efforts to physicians create an increasing demand for testing and treatment.

Nearly a year after DePuy Orthopaedics settled what was one of the largest hip replacement recall lawsuits, it appears that another similar settlement is in the works. According to a recent New York Times report, Stryker, a Michigan based artificial hip implant provider, will settle the lawsuit against it brought by thousands of hip replacement patients that have experienced complications after using Stryker products.

Many patients who used the all-metal implants, which had become popular because of how durable they reportedly were, found that metal debris would come from the device’s ball and cup as the parts wore out, which would irritate the tissue surrounding the replacement hip. 

Manufacturers have a legal duty to ensure that the products they put on the market are safe for a consumer’s intended use. If the product turns out to be defective (either through design or the means in which it was built), a manufacturer could be held liable for injuries to consumers. Before they were recalled, all-metal devices accounted for nearly one in three of the estimated 250,000 hip replacement procedures performed in the United States.

Like the saying, “the person who represents himself in court has a fool for a client,” physicians are not immune from the type of foolishness that comes with avoiding their own advice. According a recent Time.com report, doctors are notorious for being the worst patients.  Specifically, doctors are known for partaking in the very unhealthy habits that they advise patients not to indulge in.

For example, there are physicians who smoke despite knowing that lung cancer is directly attributable to this habit; physicians who frequently eat fast food despite the health warnings and levels of obesity, and doctors who continue to use tanning salons in light of the skin cancer risks that come with it.

According to the Time.com report, it appears that doctors adopt the same thinking that supports many dangerous habits: “it won’t happen to me.” And when doctors do become ill, there is an undercover culture of self-medicating that can lead to inaccurate advice to patients. For instance, if a doctor is struggling with high cholesterol, he or she may be less likely to counsel a patient on the best ways to address the problem. The same could be said about doctors who abuse painkillers or smoke cigarettes.

In a prior post, we highlighted a trend in Philadelphia and its suburban counties of fewer medical malpractice claims being brought to trial and even fewer verdicts in favor of injured plaintiffs. The trend in Pennsylvania is an example of an overall trend in New York and across the nation. A recent Philly.com report examined this phenomenon, which led to the question: Are innocent medical malpractice victims being left uncompensated?

Currently, medical malpractice claims and payments have dropped in 31 states, including New York. This is arguably a result of improvements in medical care, particularly communication between staff members, but it is also attributable to tort reform efforts raised by state legislators and physicians’ rights organizations. The various new laws have resulted in damage caps that may prevent an injured person from realizing the full amount that they are entitled to.

Because of this, medical malpractice law firms must scrutinize cases much closer and decline those that are too much of a risk that they will not make money for the firm; even if the case in fact has merit. The results are startling.

The death of comic icon Joan Rivers is a harsh and tragic reminder that every medical procedure, no matter how routine, comes with its share of complications. Rivers passed away on September 4 after she went into cardiac arrest during a procedure on her vocal cords on August 28. An investigation is ongoing into the circumstances that led to her demise, but preliminary reports indicate that her air supply may have been cut off during the procedure. 

More disturbing elements were recently revealed. According to CNN.com, Rivers was scheduled to undergo an endoscopy on her vocal cords, but apparently her personal ear, nose and throat doctor performed a biopsy (that Rivers reportedly did not give her consent for). Even more troubling, the physician reportedly took a selfie of himself and Rivers while she was under anesthesia.

The clinic where the biopsy was reportedly performed recently released a statement denying that the procedure took place. It also announced that the physician who completed the endoscopy had resigned from the clinic. While there have been no formal allegations of wrongdoing and no discipline has been meted out, the events touch upon the propriety that doctors must act with when performing procedures on patients.