Greenville Personal Injury Lawyer - Medical Malpractice

Health Courts?

Ric Davis — Fri, 14 Sep 2007 12:01:57 GMT

The following is an interesting article from Lawyers Weekly on Health Courts. Should medical malpractice claims be decided by an administrator in the medical profession? Should the injured patients' remedies be capped and limited in the interest of economic expediency? You decide............

Doctors and tort reformers are pushing legislation in both houses of Congress to fund pilot projects in 10 states that would create administrative panels known as "health courts." The legislation -- which is intended to mend perceived flaws in the medical malpractice system -- is based on existing systems in Scandinavia and New Zealand as well as administrative programs in Florida and Virginia for dealing with birth-related neurological injuries.

The features shared by these programs include:

* No juries.

* All decisions made by specialized judges in consultation with a panel of experts.

* "Avoidability" -- not negligence -- is the standard patients must meet in making claims against health-care providers.

* Damage schedules specify value ranges for specific kinds of injuries, much like those employed by state workers' compensation panels.

"There's a potential with this new approach to enhance patient safety, to be more predictable for health-care providers and patients alike, and to be more efficient in how resources are allocated," said Paul J. Barringer III, general counsel for Common Good, the bipartisan legal reform group that is a primary backer of the legislation.

"Also, we believe it will put more money in the pockets of patients," he said.

Common Good was founded by New York City lawyer Phillip Howard, best known as the author of "The Death of Common Sense." Its membership spans the political spectrum from Bill Bradley to Newt Gingrich.

The identical bills, known as the Fair and Reliable Medical Justice Act, were introduced in Congress in May and both have bipartisan sponsorship.

But health courts have also drawn criticism on constitutional grounds.

"The Bill of Rights includes specific, articulated rights for citizens to have their disputes resolved in court," said Cheryl Niro, executive director of the Illinois Supreme Court's Commission on Professionalism and a member of the American Bar Association's Standing Committee on Medical Professional Liability. "What this bill does is create an alternative to the court."

Barringer said that health-court legislation has been introduced in Maryland, Massachusetts, New York and Pennsylvania. There is also interest percolating in several other states, including Colorado, Wisconsin, Wyoming -- and South Carolina.

Do Modifications Go Far Enough?

Similar bills were introduced in 2006 but were modified and reintroduced this year following intense scrutiny during Congressional hearings. Niro testified at those hearings and believes that the criticisms improved the current version.

"Some of the most onerous aspects of the last proposal have been softened," she said, noting the previous version's "no-sue" requirement has been replaced by an opt-out clause stating that patients may "voluntarily withdraw from participating" in the program.

Even so, Niro argues that the opt-out clause doesn't go far enough because it makes no mention of the right to a trial by jury.

Michael S. Greco, immediate past president of the ABA, criticized the 2006 version on constitutional grounds and said his opinion remains unchanged.

"Essentially, what I said then still holds," he said. "Even if it's voluntary, there are still problems. We're talking about [patients] who, without a lawyer, aren't sophisticated enough to know they're giving up their rights. And for more sophisticated people, there's pressure to give up their rights."

Another modification in the current bill is an expansion of the review panel membership. In the old version, the review panel was made up entirely of health-care professionals. The current bill calls for the panel to include lawyers with experience representing patients and health-care providers, patient advocates, medical-malpractice insurers, state officials and patient safety experts.

The old version prohibited the use of experts by patients and, although that prohibition is absent in the new bill, it does not specify that such experts are allowed.

Building A 'Safety Culture'

The bills are intended to address two problems -- medical malpractice insurance rates for doctors and escalating health care costs due to the practice of "defensive medicine."

"Physicians are ordering tests or even procedures that are not medically necessary or appropriate because they don't want to sit in court two years from now and answer 'Why didn't you give the MRI?'" said Dr. Alan C. Woodward, who practices at Emerson Hospital in Concord, Mass.

Last year, the Harvard School of Public Health issued a report concluding that health courts are worth a try -- at least on a pilot basis. The report -- Health Courts and Accountability for Patient Safety -- was published in the Milbank Quarterly.

"Plaintiffs' attorneys wonder whether the tort system's corrective-justice function can be served equally well by an alternative that does not lay blame and shame on individual physicians," wrote Harvard professor Michelle M. Mello, chief author of the article.

Supporters say health courts would boost patient safety efforts and prevent injuries by removing the threat of litigation and opening the door for doctors to talk honestly about what went wrong. They contend that if the courts track medical errors, the medical community could evaluate new preventive measures.

"I think patient safety would be a good driver for this system," said Allen Kachalia, an internist at Brigham & Women's Hospital in Boston and one of the authors of the Harvard study. "If it makes it easier for the patient to file claims, then we can do a better job of reporting injuries, [and with that] we can build a database and then learn where errors are occurring."

Barringer, of Common Good, argues that there's already evidence that health courts work.

"We know, for example, in the Scandinavian systems, that the administrative compensation systems typically compensate patients in well under a year," he said.

Niro counters that America and Scandinavia is an apples-to-oranges comparison "because those nations have health and welfare benefits that are paid for by their governments before consideration of the injury claim takes place."

Greco, a partner in the Boston firm K&L Gates, said the quick payouts may come at the expense of a fair resolution.

"One of the carrots here is the claim that there's a quick path to getting an award," he said. "But that's at the expense of the integrity of the award. It's like saying, 'We're giving you peanuts, but you'll be getting them fast.'"

Unfounded Fears?

One of the prime arguments in favor of health courts is that juries lack the knowledge needed to resolve medical negligence claims fairly.

Philip G. Peters Jr., a professor at the University of Missouri School of Law, recently completed a study that refutes this contention. After examining three decades of studies on jury decisions in medical malpractice cases, he concluded that juries actually perform very well. Reporting his findings in a recent issue of the Michigan Law Review, Peters found that in cases with weak evidence -- the category that most worries critics of malpractice litigation -- juries agreed with the assessments of expert reviewers nearly 90 percent of the time. He also found that juries overwhelmingly favor defendant doctors, even in cases where the evidence against them is strong.

"Doctors simply don't trust lay people deciding their fate," he said. "They want peer review. In addition, they don't trust any outcome produced by the adversarial process, which they see as a search for angles, rather than a search for the truth."

Although doctors have legitimate concerns about skyrocketing malpractice insurance premiums, the focus of their dissatisfaction is misplaced, according to Robert L. Sachs Jr., a plaintiff's med-mal lawyer in Philadelphia.

"Filings [of med-mal suits] have been down for years," he said. "You'd think that would reflect itself in lower premiums, but it hasn't."

In fact, direct losses paid per doctor dropped 30 percent from 2000 to 2005, while insurance premiums per doctor rose 32 percent, according to an analysis performed by Americans for Insurance Reform released this spring.

"The question remains: Why health courts?" Greco said. "What's the point? Are we saying that courts are bungling this? I doubt it. I think it's more likely that some interest groups are trying to limit people's rights for their own gain."

Niro agrees.

"There's no question that the current system has issues that make us question whether it's working as well as it could," she said. "But there are sound constitutional alternatives that exist now: arbitration, mediation, and settlement conferences, all of which are appropriate means of alternative dispute resolution."

Editor's note: Freelance writer Amy Johnson Conner contributed to this article.

For more information on this subject matter, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ric Davis

Diabetes Drug Avandia Linked to Increased Risk of Heart Attack

Harold Christian — Mon, 09 Jul 2007 13:42:57 GMT

A new study links the Type II Diabetes drug Avandia with a 43% increase in the risk of a heart attack, but the manufacturer of Avandia, Glaxo Smith Klein, continue to deny such claim and claim that such statements are "false and misleading". However, it appears that Avandia, much like Vioxx, was placed on the market without proper warnings for risk of harm to the patient, even though the studies performed indicated that there was an increased risk of harm, particularly related to cardiovascular disease.

Glaxo Smith Klein spent large amounts of money promoting Avandia, direct to consumers. This is an effort to get patients to ask for Avandia when they visit their physicians. However, what is not disclosed, is that there is an increased risk of heart attacks for those patients. It is also true that these drugs are prescribed, in general, to patient poplulations that are more vulnerable and already have an increased risk of heart attacks.

Dr. Steven Nissen, a cardiologist at the Cleveland Clinic, conducted an analysis, evaluating the results of 42 previous studies of Avandia. His study was published in the New England Journal of Medicine on May 21, 2007, and the study concluded that Avandia increases a patient's risk of heart attack by 43% and the risk of death from cardiovascular causes by 64%. FDA Commissioner Andrew Van Eschembac testified before a Senate hearing and announced the agency's request that Glaxo Smith Klein include a "black box" warning to the label of Avandia. However, that warning request is somewhat misplaced because it is set to address an increased risk of heart failure, not heart attacks. Not surprisingly, at that same hearing, Glaxo Smith Klein and the FDA, both defended their action with respect to the drug Avandia.

Dr. John Buse, a diabetes expert, also testified. He stated that when he mentioned a concern about an increased risk of heart attacks from Avandia in 1999, that the drug manufacturer utilized intimidation tactics and characterized him as a liar. The tactics are typical of the bullying tactics used by large drug companies.

For more information on this subject, please refer to our section on Drugs, Medical Devices, and Implants.

Originally posted at InjuryBoard by Harold Christian

Health Care Lobby Contests Ability of Jurors to Make Decisions in Medical Malpractice Cases

Harold Christian — Mon, 02 Jul 2007 13:38:54 GMT

Even though jurors sit everyday and make decisions on criminal cases on the guilt and innocence of people, deciding who will go to jail and who will remain free, and even make decisions on who will receive a death penalty or be permitted to live, medical malpractice insurance companies do not believe that these same jurors are competent to receive testimony and evidence of medical malpractice trials and make decisions about whether or not medical malpractice has been committed. Oddly enough, they consider these jurors competent to receive complex testimony in criminal cases, but not competent enough to receive testimony and evidence in medical malpractice cases and make a fair decision. These lobbyists are attempting to take away the rights of those who are harmed, injured and suffer wrongful death due to medical malpractice, by taking away their right to a trial by a jury of their peers.

A Scranton Pennsylvania newspaper has published on their electronic edition reports that medical and insurance lobbies are pushing a proposal that would move decision making in medical malpractice cases from courts and juries to specialized "health courts". These same lobbyists have pushed for years to take away the rights of those who have suffered debilitating injuries and wrongful death at the hands of the negligence of hospitals and physicians by placing artificial limitations known as "caps" and other restrictions, that are making it virtually impossible for injured victims to have justice and bring about accountability in these settings.

There is presently legislation pending before congress to set up pilot programs in ten states which would divert all medical malpractice cases to special courts. These health courts, of course, grant special privileges to health care providers that the rest of us do not enjoy. These cases would allow doctors and hospitals to be judged by "medical experts" and other medical professionals, thereby stacking the deck against injured patients. Statistically physicians already win 3 out of every 4 court cases that appear before a jury of our peers. However, this is not sufficient, and these lobbyists are pushing for greater restrictions. In cases where a patient has been injured or killed by a medical error, the case would first have to be heard by a panel of "medical experts" chosen by the hospital in which the alleged malpractice occurred. If the patient, or their family, for wrongful death claims, are unsatisfied with the result, they can take their case to a special court where it will be heard by a "medical exert" judge.

This arrangement presumes that jurors or judges are not smart enough or experienced enough to understand medical malpractice cases and cannot be trusted to award fair and appropriate sums of money. Such components are also recommending certain preset amounts depending upon the injury. Unfortunately, this fails to take into consideration the specific facts and aspects of each case.

Physicians and hospitals already enjoy special privileges in that virtually every state, has a special peer review privilege statute. What this means is that when an error is recognized within the profession the information involved in the investigation is privileged and confidential and not available to the public. These rules exist under the ruse that allows a more full exploration since information may not be fully disclosed if it was going to be made public. I believe that this simply means that the public does not get good information about bad conduct and medical errors and is left in the dark.

The Christian and Davis Law Firm does not believe in frivolous lawsuits. However, we do believe in accountability, and believe that accountability and responsibility are cornerstones of our American way of life. Accountability and responsibility requires that victims be allowed to come to a level playing field where they can address a jury of their peers and receive fair and just results for grievance and serious personal injury and wrongful death which is due to the fault of others.

For more information on this subject, please refer to our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Harold Christian

Medical Malpractice Crisis about the Operating Room and the Board Room, Not the Courtroom

Ric Davis — Wed, 27 Jun 2007 06:05:00 GMT

Study after study confirms that the medical malpractice "crisis" has its roots in the operating room, not the courtroom. A study released by HealthGrades, a consumer advocacy group that rates health care providers, found that an astonishing 1.2 million Medicare patients suffered "adverse safety incidents" in American hospitals over the two-year period, 2002-2004. Of those million-plus injured patients, more than 250,000 died preventable deaths, according to HealthGrades. The others were left to recuperate from their injuries, which ranged from unexplained post-operative fractures to surgical foreign objects being left in their bodies.

As if the medical data alone wasn't enough cause for concern, HealthGrades also determined that the financial cost of medical negligence suffered by Medicare patients is staggering. From 2002 to 2004, the taxpayers paid nearly $9.3 billion to cover expenses related to the medical errors HealthGrades uncovered.

With HealthGrades' study as a backdrop, it is incredible that some elected officials are still trying to shield healthcare providers from any liability for the injuries and deaths that they cause. Apparently, a nearly $5 billion annual subsidy from Medicare to cover the costs of botched care isn't enough. Health care providers and their insurance carriers are demanding reforms that amount to blanket immunity.

There is no more vulnerable group of Americans than our elderly population. We must be fervent about protecting the lives and dignity of our elders. A vital tool in the protection of dignity of elderly people, and ensuring that their lives are deemed to have value, is giving them and their representatives the ability to seek redress for the harms that they suffer. But in the commotion surrounding the tort reform debate, the rights of the elderly are often ignored, even though (as HealthGrades showed so vividly), they are among the chief victims of medical negligence.

Rather than trying to prevent injured Medicare patients from coming into our courtrooms, policy makers should focus on ending taxpayer subsidies for substandard care. The 1.2 million Medicare patients who biannually are the victims of medical negligence should know that the pro-life community is standing with them.

In the aftermath of the HealthGrades study, we all have good reason to oppose tort reform proposals that would trample on injured patients' rights. The same forces who propose tort reform support initiatives to eliminate rights for those injured on the job, injured in nursing homes and injured in automobile collisions. Coincidentally, it is big business, big insurance companies and their owned interests in Columbia and Washington who seek to eliminate our right to access our judicial system to seek justice from wrongdoers.

For more information on this subject, please refer to our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ric Davis

Medical Malpractice Could Be Reduced If New System Adopted

Matt Christian — Sat, 23 Jun 2007 18:42:42 GMT

A new electronic system developed which could allow doctors to send prescriptions to pharmacies electronically could reduce medical errors and medical negligence. One study suggests that as much as 20% of the 550,000 physicians practicing could use this system but only about 5% are actually employing it.

The system would allow doctors to use mobile phones or computers to send the prescriptions. The hope is that it would reduce errors and warn of potential drug interactions.

Beyond conveying prescriptions, systems can alert doctors to potential drug interactions or dosing problems, eliminate handwriting errors, automate the time-consuming renewal process, provide data on a patient's drug plan, and potentially cut thousands of pharmacy calls to doctors. Hospitals, insurers, technology companies, regional collaboratives and pharmacies have been working to advance adoption of e-prescribing.

E-prescribing proponents, including the U.S. Department of Health and Human Services, point to a study that estimates adoption of e-prescribing technology could save $27 billion in U.S. health care costs by reducing adverse drug events and improving work flow.

For more information on this subject, please refer to our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Matt Christian

Plastic Surgery Medical Malpractice Lawsuit Settled

Harold Christian — Tue, 29 May 2007 15:26:06 GMT

A woman who suffered from an infection after liposuction surgery has settled a medical malpractice lawsuit against the physician. Dr. Andrew Chontos performed the surgery on Julie Hays in 2003. This is the third malpractice suit settled against the former surgeon,

The lawsuit says on Sept. 18, 2003, Chontos drained fluid from Julie Hays' abdomen. The fluid was infected, according to the suit.
The lawsuit said Chontos then removed fat from her lower abdomen, which created a large wound, exposing Hays to ongoing infection, which eventually led to further surgery to remove the infected mesh.
Immediately following surgery, Hays suffered complications, which left her with a large amount of blood in her abdomen.

There are still two cosmetic surgery malpractice suits pending against Dr. Chontos.

Originally posted at InjuryBoard by Harold Christian

Medical Malpractice Crisis Found to be Fiction

Harold Christian — Wed, 16 May 2007 10:55:41 GMT

A recent article in the WashingtonPost.com site confirms that victims of medical malpractice often suffer without fair and just compensation. The article further establishes that empirical evidence runs contrary to those who contend that we have a medical malpractice crisis in our nation, and would not support the contentions of those such as President Bush who maintain that medical malpractice reform is necessary.

A study performed by a law professor at the University of Missouri at Columbia examined three decades of research and concludes that jurors tend to sympathize with doctors being sued rather than patients who have been victimized by malpractice and are suing the physician for their damages. The Bush Administration contends there there is an epidemic of frivolous malpractice cases and run away jury verdicts and claim that doctors are being forced out of practice. As a result medical malpractice reform became a major political topic in the 2004 presidential campaign, as well as many other political campaigns across the nation. The contention has long been that doctors were being forced out of their profession, that run away juries were awarding compensation when none was deserved, and that medical malpractice claims were driving up the cost of medical care.

Recently Phillip G. Peters, Jr., writing in the May edition of the Michigan Law Review, finds that if anything, the jury system appears to be biased against the patient and in favor of the doctor. Peters finds that, overall, injured patients win only about 27% of all cases that go to trial. This means that medical malpractice cases have the lowest win rate of any category of tort litigation. A study finds that there are several reasons for the bias which tends to favor the doctors when they are being sued. Among the areas that give the Defendant doctors an advantage, include their superior economic resources, the social standing of the doctors, the jurors willingness to give a doctor the benefit of the doubt if the evidence is confusing or complicated, and what is now known as the cultural prohibition against the idea of benefiting or profiting from an injury.

Indeed, a juries' lack of medical expertise tends to favor the doctor and not the patient. A study found that juries rule in favor of doctors more frequently than do independent medical reviews, which provided a very surprising result. Typically doctors are very reluctant to allege that another physician's care is negligent, or below the accepted standard of care.

Christian and Davis believes that the greatest cost of medical malpractice is the harm that is done to patients who suffer injury from negligent care at the hands of doctors and hospitals and other medical providers. The Christian and Davis Law Firm in Greenville, South Carolina carefully analyzes potential medical malpractice and nursing home negligence cases to determine if there is a meritorious claim. Christian and Davis has a full time registered nurse on staff acting as a legal nurse consultant who meets with and discusses claims with clients, and to assist the attorneys in reviewing cases. Christian and Davis believes that we all need to be advocates for competent medical care and to take legal action only when appropriate to hold the medical professional accountable where serious personal injury has been caused due to substandard or negligent care. We suggest that you inform your United States representatives to oppose legislation that caps or limits recoveries to seriously injured victims and reduces accountability of negligent wrong doing.

Originally posted at InjuryBoard by Harold Christian

Douglas County Sued for Not Serving Medical Malpractice Papers

Shannon Weidemann — Wed, 02 May 2007 14:58:48 GMT

A county in Nebraska has been sued for not serving a doctor with medical malpractice papers. A woman is suing Douglas County for damages that she was not able to claim when her medical malpractice case was thrown out of court. The county sent her attorney paperwork saying the papers had been served within the statute of limitations. The doctor testified in court that he was not served.

Records showed that the physician was out of his office on the day the server claimed to have given him the papers, and Judge Patricia Lamberty ruled in his favor.
By then, it was too late for Blakeman to have the lawsuit served again.

The plantiff's original case stemmed from pain and suffering she endured after having gastric bypass surgery in 2003.

Originally posted at InjuryBoard by Shannon Weidemann