Pennsylvania Injury Law Report : Accident Attorney Philadelphia: Personal Injury Attorney Philadelphia (PA), Injury Lawyer Philadelphia - Kreithen Baron & Carpey

Many doctors perform costly tests and procedures that have little to no scientific or medical merit. By practicing such defensive medicine, doctors operate outside of the standard of care.  This is typically under the guise of insulating themselves form medical malpractice claims. (At least one commentator call this "insurance fraud").

Health insurance companies are under a contractual obligation to pay only for claims that are reasonable and necessary to treat an illness. Each time an insurer is billed for a test or procedure that a doctor believes is superfluous, that insurer is induced to compensate the doctor to its own financial detriment.

Supporters of defensive medicine point to the increased demands of patients as a valid impetus for such a practice. According to Adam I. Harris, M.D. as well as other commentators in The Wall Street Journal Editorial page on February 15, 2013, the proliferation of defensive medicine will continue until patients bear the financial responsibility of unnecessary medical treatment. This logic, however, is deeply flawed. Insurance companies do not simply absorb the increased costs that come part and parcel with defensive medicine. Instead, they offset these expenses through higher insurance premiums.

As the cost of medical insurance continues to surge, it is clear that the practice of defensive medicine must be reigned in. Rather than passing the cost onto insureds, perhaps it is time for health insurance carriers to take a harder line on defensive medicine.

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It is reasonable to think that when a person goes into surgery for a non-life threatening issue, that they are in the hands of experienced, well-trained professionals and all will go smoothly. Sure, there are complications that can sometimes arise that nobody foresaw, but how many of us would consider human error by operating on the WRONG part of the body as simply a “complication”?

No one.

The difference between complications and human error is that one of them is entirely preventable, yet, according to the Pennsylvania Patient Safety Authority, an average of 63 wrong person or site surgeries in Pennsylvania still occur every year.

According to an article written on November 12, 2012 in The Philadelphia Inquirer, Stamping Out Misdirected Surgery, Anna Mazur, a 92-year-old woman suffering from a blocked vein and mounting pressure from glaucoma in her left eye, checked into the University of Pennsylvania Scheie Eye Institute for surgery in March 2011. Instead of performing surgery on the left eye in an attempt to improve vision, surgeons operated on the relatively “good” eye. Tom Avril, the author of the article, writes,

There were complications, and, according to a specialist retained by her attorney, she became legally blind as a result.

 

Anna Mazur switched to another eye institute the next month to have surgery on the left eye (the one that was supposed to be operated on in the first place), which ultimately left her with no improvement in vision. The ability to read, watch videos of her great-grandchildren, prepare her own meals, and take care of herself was completely stripped from her following the surgeon’s mistake. She says,

I was in good health and did everything myself. Now I just have to sit and wait and see what happens to me.

 

Although improvement programs have helped to lower the average number of medical errors in the 2011-12 academic year from 63 to 47, one mistake per 100,000 procedures isn’t good enough.

It won’t be good enough for the 47 victims of medical error this upcoming year, either.
 

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On March 22, 2012, in Florissant, MO, Dr. Gilbert Webb decapitated the child of Arteisha Betts and Travis Ammonette during the infant's delivery.

A month before, Betts and Ammonette had been told by Dr. Susan Moore that their child should be born by way of a C-section due to his abdomen being too large for an ordinary birth. However, when Betts went into labor, the doctor on hand (Webb) patently refused the C-section, pressuring the couple to submit to a vaginal delivery despite previous warnings.

During the delivery, the doctor was unable to free the child from the birth canal, and, in the process, pulled the boy's head from his body. Realizing what he had done, Dr. Webb reportedly shoved the boy back inside the birth canal to hide his horrible error.

In September, Betts and Ammonette filed a lawsuit for negligence and wrongful death. As defendants, the suit names Dr. Gilbert Webb and Dr. Susan Moore, as well as Signature Medical Group and Midwest Maternal & Fetal Medicine Services.

This horrific tragedy is an example of the fact that medical malpractice can occur in the this country and in Pennsylvania at any moment. No amount of money will bring back Ms. Betts and Mr. Ammonette’s baby. Nevertheless, this story underscores the need for injured victims and their families to have at least the ability to seek justice and compensation for their losses.

As I write this post, it is election day. Picking candidates to elect is, of course, a personal decision for every voter. However, when casting your vote, please consider those candidates who are most likely to put measures in place that might curtail your legal rights, as opposed to those candidates who support the jury system in America. 

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A recent study found that, per year, there are 28,000 cases of birth injuries occurring in the United States. That translates to more than 2,000 birth injuries every month and more than 500 every week. The causes of birth injuries are many and varied, and the information to be provided on the subject can be dense.

Cephalohematoma
Cephalohematoma amounts to bleeding which occurs beneath the cranial skin. A lump on the child’s head is often an indication that this injury has occurred. Often, cephalohematoma occurs due to vacuum extraction during the birthing process. Luckily, the injury requires little to no treatment and will usually subside on its own after some days, weeks, or even months. Cephalohematoma is not to be confused with subdural hematoma, which is a collection of blood forming on the brain surface. Subdural hematomas pose more serious threats to a child’s health.

Nerve Damage and Brain Damage Caused by Poor Use of Forceps
Forceps can be essential during a particularly difficult birth. If, for example, the birth canal is poorly positioned or the infant is unusually large, a forceps might be the only means to extract the child. However, even though a forceps can save a child's life, incorrect use of the instrument can result in serious injuries for the child. If the tool places too much pressure on the child's face, for instance, then nerve damage can occur. Occasionally, the injury is permanent, causing the child's face to be asymmetric. This is also known as facial nerve palsy.

Cerebral Palsy
More serious than facial nerve palsy, improper use of forceps can cause damage to the child's brain, resulting in Cerebral Palsy. If this happens, the child may experience impaired motor control. Children can also suffer from Cerebral Palsy if they are born prematurely, acquire any infections during pregnancy, don’t receive enough oxygen in the womb, or suffer from asphyxia during delivery. Most times, symptoms of Cerebral Palsy do not get worse as the child grows. Furthermore, the child can improve the condition through rehabilitative exercises.

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With health care costs in the United States racking up over two trillion dollars every year, some are pointing fingers at unnecessary or over-prescribed testing by doctors. At the moment, the organization has come up with about forty-five tests that may be over-prescribed.

The American Board of Internal Medicine initiated the "Choosing Wisely" campaign, and, with the support of the American College of Cardiology and Consumer Reports, they are encouraging doctors and patients to be hesitant before ordering or submitting to tests. Here is a short list of tests which "Choosing Wisely" considers over-prescribed. at the moment, there are 45 tests that they list as over-prescribed.

• Colon cancer screening: According to the American Gastroenterological Association, do not need to be conducted more than once every ten years for patients who do not have a family history of the cancer. If a colonoscopy receives a negative result, the patient can wait a while before the next one.

• Sinus infections: According to the American Academy of Allergy, Asthma & Immunology, are also receiving too many CT-Scans and unnecessary antibiotics.

"Choosing Wisely" advocates that doctors and patients consider four points before prescribing or submitting to certain tests.

• The ordering of the tests should be supported by evidence.
  
• The tests should be "doubling up" on similar tests and procedures previously received.
  

• The tests should not be harmful to the patient.
  
• The test should be necessary.

The main point of this is to create a dialogue between doctors and patients that can cut to the core of the prescribed test or procedure. A good discussion can potentially expose a test as unnecessary. Patients should be asking what the risks are of the tests versus the benefits. That said, it’s always a good idea to side on getting the test for more thorough evaluation of the medical issue at hand.

To find out more about the "Choosing Wisely" initiative, see their main website. Once there, you can find links to the full lists of "unnecessary" tests.

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Birth injuries are a prominent and terrifying issue in the U.S., with just under thirty thousand cases occurring annually in the United States.

In this blog post, I focus on some more of the most common birth injuries occuring during labor and delivery. Kreithen, Baron & Carpey provides information on prevalent risks and ailments in order to help parents-to-be prevent a birth injury and stay level-headed during the unfortunate event that a birth injury occurs. Here I focus on brachial plexus injury, spinal cord injury, fractures, and caput succedaneum.

Brachial Injury

Brachial plexus injury occurs during birth when damage is done to the group of nerves around the infant's spine and shoulders (called the brachial plexus). When damage occurs to the brachial plexus, the child's arms and hands may experience weakness, pain, or loss of movement. Minor cases of brachial plexus injury cause swelling or bruising. Severe cases can cause permanent damage.

A child is at risk for brachial plexus injury if a large amount of stress is placed on the shoulder during delivery. The injury can occur during a head-first and a feet-first delivery. Fortunately, developments in birthing techniques have reduced the number of brachial plexus injuries. Although, occasionally, a brachial plexus injury can do more damage if the spine is placed in jeopardy.

Spinal Cord Birth Injury

When a spinal cord birth injury affects an infant during labor it is usually due to poor use of forceps. Like nerve damage and brain damage injuries, incorrect forceps use can twist a baby's spine. Health complications which result from this type of injury include fractures, numbness, and, most concerning, paralysis. A child who suffers from a spinal cord injury due to a doctor's negligence can be left severely disabled for life.

Fractures

Infants, with their soft bones, will sometimes suffer from a fracture -- for example, in the femur -- which at first may be difficult to identify. Signs that an infant has experienced a fracture are stiffness, bruising, and the sound of snapping.

A slew of fractures can occur during a complicated delivery. Among the most prevalent infant fractures is the clavicle fracture. The clavicle is another name for the collarbone, and a fracture to this bone can be intensely painful. Fortunately, with good treatment an infant can recover from a clavicle fracture within a few weeks to a month.

Caput succedaneum

A caput succedaneum birth injury amounts to swelling of the infant's scalp. Pre-birth, this injury can be the result of a membrane rupture or lack of amniotic fluids. In these cases, caput succedaneum can be identified via ultrasound as early as thirty-one weeks of pregnancy. In many cases, caput succedaneum happens during a head-first delivery when pressure is placed on the head by the uterus or the wall of the vagina.

As always, I urge you to visit blog category page located on the Kreithen, Baron & Carpey website so that you may find more articles on the topic of birth defects, birth injuries, and more. 

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A USA TODAY article of August 16, 2012 reveals that a particular infection, C. diff, is far more prevalent in hospitals, nursing homes and other medical facilities in the United States than previously thought .

The bacteria is linked in hospital records to more than 30,000 deaths a year in the United States -- about twice federal estimates and rivaling the 32,000 killed in traffic accidents.

Governmental agencies  have been slow  to enforce strategies to deal with the virus. Ultimately it will up to medical facilities to use better strategies to combat C diff.  but this is an interesting and scary article that is well worth the read. The gist of the article is that going into a hospital or other medical facility should not lead to making you more sick, or lead to death. Unfortunately, it is something we see every day.

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On February 1, 2012, Pfizer, Inc. announced that it is recalling 14 lots (roughly one million packets) of birth control medication, Lo-Ovral-28, Norgestrel, and Ethinyl Estradiol. The company says the ratio of active to inactive pills in these packets is incorrect due to labeling errors, a fact which will render the pills useless.

Obviously it is not unusual for a woman to miss a pill now and then; and often it is ok as long as she takes the pill as soon as the error is noted. In the case of the Pfizer fiasco, however, there is no way to know which pills in the pack were faulty. Pfizer has released the lot numbers of the affected medication on their website, a step which will help customers to figure out if they in fact have been taking the ineffective drug.

In addition, the corporation is urging women who have used the product to begin using a non-hormonal form of contraception immediately. The FDA is also recommending that all women potentially affected by the mishap should call their doctors immediately.

Regardless, the damage is done, and the big question remains: Is Pfizer Inc. vulnerable to hefty damage claims because of this mishap? Despite what some pundits have said on the news, the answer is maybe. Any such lawsuit would have to be brought in a jurisdiction that permits these types of causes of action. While it is possible that class action lawsuits might be filed in other states, Pennsylvania law is explicit when it comes to wrongful birth and wrongful life cases.

Pennsylvania law does not recognize damages in a wrongful life action. A wrongful life action amounts to a child plaintiff suing a doctor or other medical provider for failing to prevent the child’s birth. It is a complex matter which many agree relies heavily on the question of “life versus non-existence.” And as attorney Sean Wajert wrote, the question of whether a child should have been born is an issue “more properly to be left to philosophers and theologians.” In fact, ten states--including Pennsylvania--have banned civil actions for wrongful life.

Nor does Pennsylvania recognize damages in a wrongful birth action. In this type of action, it is the parents who are suing, rather than the child. The issue here is if they had known that the child would be born with a birth defect, for instance, the parents may have aborted the pregnancy. Not having sufficient information of the health of the baby in vitro deprives the parents of the choice of having or not having the child.

The applicable Pennsylvania statutes that apply are 42 Pa. C.S. Sections 8305 and 8306.

Damages in these cases, in state that do allow them, are measured by the lifetime cost to care for the child.

In short, most states, Pennsylvania included, disfavor wrongful birth and wrongful life causes of action. And while it is entirely possible that Pfizer will face litigation for its errors, even if a woman gets pregnant these will be difficult cases to win against the pharmaceutical company.  

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On Tuesday, January 17, 2012, The Wall Street Journal’s Laura Landro reported that seeking second opinions from doctors can lead to drastic changes in diagnoses. It is not unheard of for mistakes to occur during the process of diagnosing an illness. It is possible for the reading of radiology slides and biopsies to be entirely incorrect or just false enough to leave a patient seeking the wrong treatment.

Second opinions have, for example, revealed malignant tumors to be benign; and, in some cases, what was initially thought to be asthma has later been diagnosed as chronic obstructive pulmonary disease. To say the least, seeking a second opinion can be an effective safeguard against misdiagnoses.

Misdiagnosis is one of the leading reasons for medical malpractice lawsuits as patients can waste valuable time seeking treatment they do not need, or undergoing surgery which proved to be useless to their condition. Some of the most common misdiagnoses involve:

• Breast cancer
• Lymphoma
• Thyroid cancer
• Salivary gland cancer
• Chronic obstructive pulmonary disease
• Alzheimer’s disease
• Coronary artery

It is good to remember that doctors are human and, as a consequence, are not perfect. They can occasionally become entrenched in a diagnosis, unintentionally overlooking evidence which would either disprove their diagnosis or indicate a different diagnosis. A fresh set of eyes, as it were, can be vital to getting to the core of your ailment. Remember, you are entitled to take slides, pathology reports, and other information to another doctor for your second opinion.

Of course, we know you can’t always afford to obtain a second opinion for your diagnosis or treatment plan. Sometimes you simply have to accept what your medical professional has told you. This why it is important that your primary care physician is someone whom you trust and respect.

If you decide to seek a second opinion for your diagnosis, here are some questions to ask so you can get the most out of your second opinion:

• “Are the test results contestable? Could a second round of testing prove useful?”
• “Are you positive that this is the disease I have? Is it possible that there are other explanations for my symptoms?”
• “Do you agree with the original diagnosis? If so, are you able to suggest any alterations or modifications to my treatment plan?”
• “Have we explored all possible options?”

When it comes to your health you should try to be as informed as possible. The more you know about yourself and your condition, the more you can help your doctors treat you. Read “Top 5 Common Misdiagnoses” and “Most Common Types of Medical Malpractice,” and other articles located in our Medical Malpractice Law Articles section of our website.

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On November 7, 2011, cardiologist Conrad Murray was found guilty of involuntary manslaughter of pop superstar Michael Jackson, who died of cardiac arrest on June 25, 2009. The trial, which lasted six weeks, ended with the jury’s decision that Dr. Murray’s conduct was reckless enough to be viewed as criminally negligent under California’s penal laws. His conviction was for involuntary manslaughter, which at least under California law, is defined as criminal negligence.  The prescribing and unorthodox administering of the powerful anesthetic propofol was the major factor in proving Dr. Murray’s guilt.

California Penal Code 192(b) recognizes involuntary manslaughter as “the commission of an unlawful act, not amounting to felony; or… the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The prosecutors in this case had to prove that even though the doctor did not intend to kill Jackson with propofol, Murray’s utter disregard for his patient amounted to recklessness.

In a civil case, negligence is a common law tort in which a person is injured due to another person’s carelessness. Criminal negligence as it is defined by California law, occurs when a person (such as a doctor) acts in blatant disregard of the harm which might befall another person (such as a patient), ie: recklessness.

If Jackson’ family decides to sue the doctor in negligence, they would be able to use the evidence already presented in the criminal case. If and when Jackson’s estate brings a negligence case, here is what must be proven:

Duty: In a civil negligence case, it is necessary to prove that the defendant (Conrad Murray) owed a duty to the plaintiff (the late Michael Jackson). Due to the doctor-patient nature of their relationship, it is undeniable that Dr. Murray owed a duty to Jackson and that that duty required Murray to act in a manner befitting his profession.

Breach of Duty/Breach of Standard of Care: After establishing that Dr. Murray owed a duty to his patient, it is then necessary to prove that he breached that duty. Prosecutors had presented a list of ways in which the defendant failed to fulfill his duty to the plaintiff. Prescribing 4 gallons of propofol, and allowing the drug to be administered within Jackson’s home was an unorthodox practice which has been recognized as the doctor’s major breach of duty, and outside of the standard of care: ie what a reasonable doctor would have done under the circumstances.

Causation: After proving breach of duty, prosecutors must argue that the defendant’s negligence directly caused harm to the plaintiff. Combined with other drugs, the propofol prescribed to Jackson caused the singer to go into cardiac arrest. In the criminal case, prosecutors argued that Dr. Murray failed to perform all of the necessary steps of cardiopulmonary resuscitation (CPR); specifically, he performed CPR on Jackson’s bed rather than on a flat surface. These details further prove breach of duty, as well as served to implicate Dr. Murray in causing Jackson’s death.

Damages: Damages in a negligence case amount to the injury or other measurable loss inflicted upon the plaintiff. The damages here were, obviously, the singer’s death. But also, there is an element of pain and suffering which is called survival damages, and Jackson’s loss of earnings over his expected lifetime, which falls under the category of wrongful death damages.

Duty, standard of care/breach, causation and damages are the elements which need to be proven by any plaintiff/estate in a death case, whether in Pennsylvania or in California.

Dr. Murray is due to be sentenced on November 29th, 2011. He could serve up to 4 years in prison for involuntary manslaughter.  

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These days, a good number of doctors have interests in medical technologies: many take part in researching and testing new supplies, machinery, and hardware, lending their expertise to examine practicality and usability.

On some occasions, surgeons may be placing themselves in conflicts of interest: using medical products on their patients that they have either developed, tested, or endorsed themselves— and from which they stand to profit monetarily. Dr. Adam Lewis, a spinal surgeon recently cited in a Wall Street Journal article (October 8, 2011, John Carreyrou and Tom McGinty) for allegedly causing the wrongful death of a patient, used spinal hardware from a company in which he had a vested financial interest. His use of a product he personally developed and endorsed is argued to have lead to his patient’s death from surgical complications.

The Association for Medical Ethics (AME) has addressed the dangers and inherent conflicts of interest involved in using hardware that bears extra monetary profit for doctors. There is an extra incentive for doctors to use these products, either through royalties gained from the manufacturers, or direct profit from partial ownership of the manufacturing company itself. The concern of the AME, as outline in the Wall Street Journal article, is that some doctors, spurred by the promise of more money, will perform surgeries that are not necessarily vital to the care of their patients.

Instances such as Dr. Lewis’ and several other doctors only serve to show the importance of knowing as much about your treatment as possible. Making sure that your medical history is complete and acknowledged, that the best and least harmful treatments have already been attempted and have not sufficed, and that your doctor has your health first in mind, is more important than ever in a world where industry and medicine are growing closely together.

For more from the Association for Medical Ethics, see "The Role of Industry and Academia."

The Wall Street Journal, “Taking Double Cut, Surgeons Implant Their Own Devices.”

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The new Fair Share Act passed earlier this year eliminates joint and several liability. Joint liability now only applies when a defendant is found at fault for not less than 60 percent of the total liability apportioned to all parties. Under the predecessor statute of joint and several liability, a legal doctrine that had ruled Pennsylvania since the Colonial era, a successful plaintiff could pursue a judgment against any one party as if it were jointly liable; it then became the responsibility of the defendants to sort out their respective proportions of liability and payment. Now, collection of the judgment is based on a defendant's actual level of responsibility for an injury so long as that defendant is not found by the jury to be 60 per cent or more negligent vis a vis the other defendants.

But, in the medical malpractice context, the abolition of joint and several liability in fact exposes individual doctors to the risk of greater jeopardy to personal assets. Why? Typically the defendant doctor is sued as a corporation and as an individual actor. Under the old law, a total payment of the verdict (or settlement) would be made on behalf of the doctor and his corporate entity and paid by the defendant doctor’s corporate medical malpractice insurer. Case over. Under the current law, if that doctor is found less than 60 per cent negligent, the plaintiff can only collect on a pro rata portion of the verdict of that doctor’s negligence. In other words, with the enactment of the Fair Share Act, plaintiffs’ counsel clearly have a greater incentive, and legal obligation, for suing physicians individually and keeping those judgments on file in the courts indefinitely where excess verdicts, over and above the carrier’s policy limits, are obtained. Additionally, the Fair Share Act’s intent was to reduce exposure to medical defendants. But consider the likelihood that more defendants will have to be sued in order for plaintiffs’ counsel to try to identify the individual or corporate entity who may ultimately be the defendant who is 60 percent or more responsible for plaintiff’s injuries. That information is simply not known pre-suit, and can only accurately be determined after litigation is commenced and in the discovery portion of the case. More defendants will undoubtedly be sued than they otherwise would have been before the abolition of joint and several liability.

Who may these defendants be? They will be nurses, hospitals policy makers, administrators, and peripheral physicians who would otherwise not have been the focus of the lawsuit, but now will be, under the Fair Share Act.

The stated purpose of the Hospital and Health System Association of Pennsylvania was to get more doctors into the clutches of hospital employment equating to the consolidation and control of medical care by the large hospital corporations. And why wouldn’t a doctor want that? Clearly he or she would because as an employee of the hospital corporation the doctor not only does not have to worry about liability coverage, but the hospital corporation can purchase greater amount of coverage than the individual doctor could have or would have otherwise chosen.

The unrealized and unanticipated effects of the Fair Share Act will be played out in the Commonwealth’s courts for years to come, and unfortunately some physicians may find they do  not like the results.

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The answer is no. Yet knowing the importance of the statute of limitations is key to protecting your rights in a typical personal injury case.

Here's an example. I received a call from a woman who had fallen from the bed of a pick-up truck and fractured her elbow. She went to an emergency room where she was examined and X rays were done. The X rays showed an avulsion fracture at the elbow which did not require casting. She was released, but later developed complications, and came under the care of an orthopedic surgeon, who did surgery on the elbow a few months later. Something went wrong with the surgery and she was left with minor nerve damage in her hand.

She hired an attorney to investigate a potential medical malpractice case. That attorney looked into the case and determined the injuries weren't serious enough to warrant pursuing a medical malpractice case and informed his client as much. The attorney sent her a letter informing her that in  Pennsylvania, the two year statute of limitations required her to file suit against any responsible parties for her injuries pertaining to the medical malpractice case, or she would lose her right to do so,  and that if she wished to do that she would have to find another lawyer.  The problem was the woman was never informed, never knew, or never realized that the same two year statute of limitations that applied to her potential medical malpractice case also applied to the underlying incident that resulted in her fall.

When she called me, twenty six months after her original injury, she told me that she has slipped on the bed of the pick up because there was an oily substance that she had not seen.  This was not investigated by the first attorney that she had hired. But by the time she contacted me the two year statute of limitations had expired. If she had contacted me earlier, I explained to her, I would have pursued the case against the owner of the pick-up truck for neglecting to clean the oil from the bed of the truck and not informing her of the slippery substance which ultimately led to her injuries. She however had no idea that the two year statute of limitations applied to her original incident. She was so focused on the potential malpractice case that she lost sight of the possibility of pursuing a case based upon her original fall.

As lawyers, we assume the public is aware of what the statute of limitations is and what it means,  in any particular case.  It’s part of the language that we speak, and we assume, incorrectly,  that the public uses the same language.  I was surprised that the woman that called me was simply unaware that the time limit had expired on her case. That's one reason I have written this article. The lawyer that was looking into the medical malpractice case never thought of looking into the negligence of the owner of the pick-up truck as a means of seeking compensation for his client’s injuries. That's not to say that the case against the owner of the pick-up is an easy case. It may be fraught with all sorts of difficulties. Nevertheless, the woman who called me is time-barred from even looking into that case because of the two year statute of limitations.

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In early October, Governor Ed Rendell  highlighted the improvements in Pennsylvania's medical malpractice system. A looming issue, however, is whether he will agree to extend the Mcare fund.

In Pennsylvania, doctors and hospitals are required to carry $1 million in medical malpractice insurance. The first $500,000 is through private insurers, while Mcare provides an additional $500,000.

The Pennsylvania House proposed legislation to postpone the phase-out of the Mcare Fund for seven years. The bill was approved by the Senate, and now just requires approval from Rendell. Rendell has expressed his support for the bill, but wants to review the bill’s provisions. The extension of the Mcare Fund has been endorsed by  professional groups, including the Pennsylvania Orthopedic Society and the Pennsylvania Association for Justice, two organizations that are rarely on the same page concerning political issues.

The Mcare Fund was established in 2002 as a way to combat the high medical malpractice premiums charged by insurance companies and paid by physicians and hospitals. The medical malpractice system in Pennsylvania has undergone various changes since the Mcare Fund was put into place in 2002. In his press release, Rendell pointed to an almost 20% decline in insurance rates for the primary level of coverage in the private market. Additionally, there is more competition in the private insurance market with more than 21 new carriers. As a result, more and more doctors and hospitals have an adequate amount of medical malpractice insurance and they are paying less for it.

In 2009, Rendell stated that he would not seek to renew the Mcare Fund and that the reform of medical malpractice was complete. He did not see any need for further improvements. Despite this declaration, the Mcare Fund is likely to be extended. Rendell is said to have some reservations on certain language that returns unspent money to hospitals instead of rolling it over into the next year's fund.  It is clear, however, based on the changes to the system, including the requirement of a certificate of merit and stricter venue rules, that Pennsylvania has succeeded in driving down the rates that insurers have charged doctors and hospitals for malpractice coverage.

Update: Governor Rendell , in fact, on October 22, 2010, vetoed the bill which would have extended the Mcare Fund.

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How important is fasting before a routine blood test measuring cholesterol levels? Very important. You don't want to strictly follow your doctor's recommendations before a medical test? Fine. Then you run a high risk that the test will either be medically meaningless, or will be read improperly by your doctor. 

It's no secret that patient non-compliance with pre-testing requirements as well as patient failure to follow instructions from doctors are major factors in the misdiagnosis of various medical conditions. According to a Johns Hopkins University School of Medicine study, diagnostic errors account for the deaths of 40,000 to 80,000 hospitalized patients annually. Dr. Peter Pronovost  conducted the study. The reason for a misdiagnosis can be the center of debate in a typical medical malpractice claim. And a patient's non-compliance will certainly be raised as a defense. 

How about not hearing from your doctor's office following  a routine test? Does that mean everything is ok? Not necessarily. Your primary care doctor and the specialist who ordered the test may assume each is following up, when in fact they are not. Simply put, patients have to be empowered on their own (and bear some responsibility) for followup on the test results their doctors order. This may sound counterintuitive. After all, we rely on the expertise of our doctors to not only order the appropriate tests but also to diagnose our medical problem, as well as to report the results to us, accurately.

Protecting patients in the hospital setting, empowering patients to be more assertive in their own care, and evaluating medical malpractice claims for purposes of educating doctors in not only the avoidance of  future claims, but also as a means to provide better care, has been the area of study to which Dr. Provonost has dedicated himself. Two recent articles, one in The Wall Street Journal (September 28, 2010 by Laura Landro) and one in The New York Times ( March 8, 2010 by Claudia Dreifus) highlight his views.

Malpractice claims on the basis of misdiagnosed tests are possibly indicative of overloaded primary care physicians and, some would argue, part of deeper problems in our health care delivery systems. Nevertheless, Dr. Pronovost 's take on the issue is to allow and encourage patients to be responsible for their own care in a hospital setting. This comment is from the New York Times article.

Q. WHAT CAN CONSUMERS DO TO PROTECT THEMSELVES AGAINST HOSPITAL ERRORS?

A. I’d say that a patient should ask, “What is the hospital’s infection rate?” And if that number is high or the hospital says they don’t know it, you should run. In any case, you should also ask if they use a checklist system.

Once you’re an in-patient, ask: “Do I really need this catheter? Am I getting enough benefit to exceed the risk?” With anyone who touches you, ask, “Did you wash your hands?” It sounds silly. But you have to be your own advocate.

 

Dr. Pronovost's approach is counter to the trend of the medical community and counter to the  views typically espoused by insurance companies that insure doctors and hospitals. But he certainly provides a refreshing voice. If we are to see the improvement in the delivery of medical care in this country, the reduction of medical mistakes, as well as the reduction of medical malpractice claims, doctors, hospitals and their insurers are going to have to listen to what Dr. Pronovost says, and are going to have to embrace his approach.

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I've written before about what steps to take to be a knowledgeable and informed patient. Here is another list  of pointers entitled For Patients: Ten Safety Take Home Tips  from ECRI Institute which I thought was very good. This is common sense stuff that we all need to remind ourselves of when speaking with our medical providers and being responsible for our own medical care.

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The use of radiation therapy for cancer treatment is designed to kill cancer cells and stop the cancer from spreading. It is a specific and exact therapy where an external beam  is directed to the site of the cancer by a machine called a linear accelerator. The beam is precise in terms of the amount of dose sent to specific areas on the human body for treatment.

Over radiation occurs when the patient gets more than the prescribed dose of radiation over a period of time. The results for over radiated patients  even in seemingly small doses  weakens and kills healthy tissue causing skin and organ damage.

In a remarkable article by Josh Goldstein of the Philadelphia Inquirer it was reported last week that the Hospital of the University of Pennsylvania (HUP) has publicly revealed  that on January 21, 2010 a man being treated  for prostate cancer received radioactive seeds, a similar therapy to that of a linear accelerator, which were incorrectly implanted outside of the intended target site. Similarly, the Department of Veterans Affairs in December 2009 apologized for a prostate-cancer program where veterans were over radiated for six years at its main Philadelphia  VA Hospital via the same method as in the HUP case.

These are not isolated events. In a lawsuit against the Melbourne Internal Medicine Associates, a cancer clinic in Melbourne, Florida, it is alleged that doctors put patients at risk through poor safety procedures as well as lack of oversight of technicians, and then tried to cover up their mistakes. Not only that, but the lawsuit further alleges that the clinic fraudulently over billed Medicare from 2003 through 2008 for the over use of the  high tech and highly reimbursed radiation treatments. The Florida suit was started by a "whistle blower,"  a Fred Fangman, the cancer center's former director of radiation oncology. Federal prosecutors joined in the suit.

Walt Bogdanich of the New York Times has been following this issue. His article dated January 26, 2010 entitled "The Radiation Boom-As Technology Surges, Radiation Safeguards Lag" reports the following.

In New Jersey, 36 cancer patients at a veterans hospital in East Orange were overradiated — and 20 more received substandard treatment — by a medical team that lacked experience in using a machine that generated high-powered beams of radiation. The mistakes, which have not been publicly reported, continued for months because the hospital had no system in place to catch the errors.

Lorraine Raymond, a radiation therapist, raised concerns about overradiation in the treatment of Frederick Stein at a Veterans Affairs hospital in New Jersey in 2006.
In Louisiana, Landreaux A. Donaldson received 38 straight overdoses of radiation, each nearly twice the prescribed amount, while undergoing treatment for prostate cancer. He was treated with a machine so new that the hospital made a miscalculation even with training instructors still on site.

In Texas, George Garst now wears two external bags — one for urine and one for fecal matter — because of severe radiation injuries he suffered after a medical physicist who said he was overworked failed to detect a mistake. The overdose was never reported to the authorities because rules did not require it.

These mistakes and the failure of hospitals to quickly identify them offer a rare look into the vulnerability of patient safeguards at a time when increasingly complex, computer-controlled devices are fundamentally changing medical radiation, delivering higher doses in less time with greater precision than ever before.

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As the health care reform debate intensifies, it is apparent that malpractice reform is not a key part of the President's agenda. Though it certainly is not excluded from the debate. Will medical malpractice protection for health care providers be back doored into a final bill on health care? Are the two issues necessarily linked? What would happen to malpractice insurance premiums if malpractice standards were federalized? (I suggest malpractice insurance carriers would not be pleased because their ability to vary rates based upon specialty and region would be controlled. But that discussion has to be left to a subsequent post).

President Obama has repeatedly made the statement that "no government bureaucrat will come between you and your doctor." He stresses in TV talk shows,  town hall meetings  and in his June 2009 speech to the American Medical Association that "if you like your doctor, you keep your doctor, if you like your insurance company, you keep your insurance company."

Is the president suggesting connecting malpractice reforms to doctors and hospitals  who would follow government guidelines?  This is what he said in the speech:
Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don't get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I'm not advocating caps on malpractice awards -- (boos from some in audience) -- (laughter) -- which I personally believe can be unfair to people who've been wrongfully harmed. But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines.

Is he suggesting 1) complete preemption of malpractice lawsuits and 2) complete insulation from malpractice liability for a doctor that provides care which meets a government checklist?

It does not appear, yet, that is direction of the debate. One glaring reason? The doctors and hospitals that  provide care which does not adhere to the checklist, even for good reason, may expose themselves to liability. Maybe the checklist becomes outdated and an advancement in clinical diagnosis calls for test on a patient that isn't on the checklist. Is a doctor liable for a bad result by going beyond the checklist even if the checklist is not in the best interest of the patient?

"Evidence based guidelines" mandated by bureaucrats in Washington could end up being a double edged sword for doctors.

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I can't say for sure because I'm a personal injury lawyer and not a doctor. But every time I've had an MRI of my knee, it's because the orthopod thought it was in my best interest to get another look inside the joint.

As fellow trial lawyer Ronald V. Miller Jr. has recently stated in his excellent blog post:

"Let us not pretend that there is no defensive medicine in this country. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are actually good for the patients, (2) additional treatment that is motivated, not by fear of lawsuits, but by fear of harm to the patient, and (3) patient induced defensive medicine (i.e. patient seeks tests doctor would not necessarily recommend)."

There is one more reason not mentioned in Mr. Miller's blog post which is also relevant.  The simple fact that medical testing equates to profits for doctors and hospitals is a real issue that we need to deal with when health-insurance reform is discussed. I'm not suggesting that doctors and hospitals shouldn't make money. They should.  And insurance companies are very stingy these days in reimbursing medical providers for the procedures that are billed. But more medical testing on  patients positively affects the bottom lines of medical providers and we, meaning consumers, politicians, and medical providers can't and shouldn't overlook that.

I have tremendous confidence in the orthopedic surgeon that repaired the ACL in my knee. All of the MRIs that I've had on my knee before and after the surgery were performed at a facility affiliated with his hospital.  It was convenient for me and profitable for the hospital that he works for.

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Last week Governor Rendell stated he will not be seeking to renew the state funded subsidy for medical malpractice premiums known as MCARE due to the fact that any "medical malpractice crisis"  is officially over. The Medical Care Availability and Reduction of Error Program, or MCARE provides $500,000 in liability insurance in addition to the $500,000 in coverage medical providers must buy from the private insurance market.

MCARE was designed to provide additional professional liability insurance to doctors and hospitals in Pennsylvania at subsidized, and therefore reduced, premium rates. 

Statewide, there has been a 41 per cent drop in malpractice lawsuits in the last decade. Judicial rule changes and new laws implemented in 2002 have been extraordinarily effective in abating and reducing the malpractice insurance premium rates, Rendell said at a news conference.

The statistics in the report published by the Adminstrative Office of the Pennsylvania Courts, and which Rendell relied upon, make clear that any argument that Pennsylvania is in a medical malpractice crises is simply no longer true. Premiums that doctors and hospitals pay for coverage have gone down. Moreover,today there are 57 carriers writing malpractice coverage in Pennsylvania as compared to 3 in 2002.

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