Northern Virginia Personal Injury Lawyer - Medical Malpractice - Most Commented

The Reality of the High Cost of Defensive Medicine

Ben Glass — Sun, 13 Sep 2009 07:16:26 GMT

As the debate ramps up regarding health care reform/insurance reform, one of the subjects that is brought up more and more often is the notion that we need to change the medical malpractice laws, on a national level. Conservatives argue for it and even the President, in a recent address, suggested that aspects of tort reform were on the table in order to fight the high cost of medical care.

The Argument that Defensive Medicine Exists to Protect from Lawsuits

Supporters of malpractice reform argue for limiting the right to sue a doctor, nurse or hospital, either by imposing additional legal roadblocks (expert certification before suit, for example) or by creating artificial limits to monetary recovery, usually by capping compensation for pain and suffering. According to their argument in favor of reform of patient’s rights, health care providers routinely order extra, non-necessary tests, not because it is reasonable to do so but to prevent the physician from being sued later for “not performing every test.” There is a huge cost to society, the argument goes, to all of these extra medical tests being ordered. "The country could lower its cost of medicine,” proponents argue, if health care providers weren’t so afraid of being sued, and thus, didn’t have to order all of these unnecessary tests.

It sounds like a pretty argument when spoken, in part because it is so hard to come up with facts to argue against it. It almost sounds logical. But, in fact, whenever the argument made it is always begins this way: “the estimated cost of defensive medicine is….”

Why is It That They Always Talk About the Estimated Costs of Defensive Medicine?

I suggest that when someone makes an argument that tort reform is necessary to prevent the “huge expense” of so-called defensive medicine” that that we don't let them get away with the "soft facts" they tend to use. Because the practice of defensive medicine is contrary to existing, well-established practice and law, the burden should be on the proponents of the existence of “defensive medicine” to prove that it even exists.

ByLaw, All Doctors are Required to Practice According to the Standard of Care

First, medical malpractice law does not require perfection. The law only requires that a doctor practice in accord with the “standard of care.” The “standard of care” is simply that care that would be required by a “reasonably prudent health care provider acting in the same or similar circumstances.” It is that care that a consensus of “reasonably prudent doctors” would have engaged in with the information they had at the time the decision for care occurred. When a doctor does or fails to do something required by the standard of care, then he or she is negligent.

If harm results from that negligence, then he or she is responsible to the patient for that harm.

A Doctor is Required to Talk to the Patient About Risks and Benefits

By law, doctors and patients act as a team. The doctor does an assessment of the situation, takes into account the information reasonably available at the time, maked a working diagnosis and recommends a course of action. The standard of care requires that a doctor explain to the patient both the risks and the benefits of the proposed course of treatment. This is the law of "informed consent." Ultimately, it is the patient, being fully advised, who
makes the decision as to the course of treatment.

Listen Very Carefully When They Talk About the Cost of Defensive Medicine

Those who argue that defensive medicine drives up the cost of health care in America define the practice as a medical test or procedure that is ordered that has no reasonable basis for giving the physician-patient team information that would be useful to the decision making process of the patient-doctor team. It is ordered, they say, simply to protect the doctor.
In order to believe that there is a true, measureable, cost of so-called defensive medicine, one would first have to ask: how do we know it is actually happening? Those that are “reporting” that they engage in “defensive medicine” are the doctors who have a vested interest in the argument or their medical associations or lobbyists. They “report” practicing defensive medicine but how should a rational person actually measure this or test the assertion?

Are These Doctors Admitting That They Are Violating the Standard of Care?

Think about it. Anyone who says he or she routinely engages in defensive medicine is admitting that they practice outside the standard of care. They admit that they routinely engage in conduct that is, by definition in every state, medical malpractice. Indeed, they are admitting that in their discussion with the patient about the next step to take in their health care, they are lying when they disclose the risks and benefits of the proposed treatment.This is astonishing.

Are They Also Admitting to Insurance Fraud?

Second, any doctor who admits they engage in the practice of “defensive medicine” is saying they are engaging in outright insurance fraud. A health insurance company is generally bound by contract or plan language to pay only those claims that are reasonable and necessary to treat illness or injury. The practice of “defensive medicine” is, by definition, an admission that two people are being lied to and victimized by fraud: the patient and the insurance company. (Either that or the patient and doctor are conspiring to defraud the insurance company.)

Show Us the Records

The only objective, rational way to know whether “defensive medicine” is being practiced is to look at a patient’s actual medical records and have that care reviewed by other “reasonably prudent physicians.” This is never done by tort reform proponents. A doctor who says “I practice defensive medicine (i.e. I lie to the patients and defraud the insurance company) never says “and here are my records to prove it.” How could they? They would go to prison.

The next time you hear any doctor assert that he or she engages in the fraudulent, improper practice of “defensive medicine” ask him or her if they will produce the actual medical records (patient identifiers removed) to prove the claim. Have them tell us that they had a face to face conversation with the patient (as is required under the standard of care) and told the patient “the test I want to order has no reasonable value to the decision-making process in your care.”

It simply doesn’t happen.

Every Patient Needs to Take Responsibility for Their Own Care and Ask This Question

I suggest that in truth, there is very, very little so-called “defensive medicine” actually practiced in the United States. When sent off for testing a patient should always ask and demand an answer for this question: “doctor, what is the scientific and medical basis for this test? What are the odds that something important will be missed if I don’t have this test?”

Originally posted at InjuryBoard by Ben Glass

Jurors Sometimes Ask

Ben Glass — Sun, 02 Apr 2006 06:36:31 GMT

Here is a question we sometimes here from juries:

I was on a medical malpractice jury recently. Although we wanted to find for the plaintiff we were afraid that our verdict would destroy the doctor financially. His wife was sitting in the courtroom during closing arguments and we really felt sorry for them. Will a doctor be destroyed by a medical malpractice verdict?

We often see the doctor's spouse at trial. Particularly during closing arguments. Insurance companies will try any trick to swing things in their favor (as if they didn't already have most of the advantages!)

Rest assured that 99.9% of all health care providers (and automobile drivers) are covered in some way by insurance. The lawyers defending in medical malpractice and personal injury cases are paid by the hour by insurance companies and the jury's verdicts are covered by insurance companies. A single adverse verdict will not hurt a doctor's career. What you may not know (because the law does not allow you to know) is that the doctor may be a repeat offender. Thus jury verdicts serve a very important purpose in helping the Board of Medicine identify and weed out bad doctors. It is a sad fiction of our law that we do not let juries know the whole truth during trials.

Originally posted at InjuryBoard by Ben Glass

Live Baby Left in Trash from Botched Abortion

Ben Glass — Wed, 27 May 2009 08:13:00 GMT

A doctor’s license has been revoked after he was accused of medical malpractice after a botched abortion which authorities say involved a live baby being placed in the trash.

On February 6, the Florida Board of Medicine found Dr. Pierre Jean-Jacque Renelique to be guilty of medical malpractice and delegation of responsibility to unlicensed personnel.

According to an administrative complaint, Renelique was scheduled to perform an abortion on a teenager who was 23 weeks pregnant.

The complaint says that Sycloria Williams gave birth at the clinic after waiting hours for Renelique’s arrival. An owner of the clinic placed the baby in the trash. The decomposing remains were recovered a week later by police.

Originally posted at InjuryBoard by Ben Glass

Emergency Room Medical Malpractice

Ben Glass — Tue, 30 Dec 2008 12:09:00 GMT

Emergency rooms are typically the places in hospitals which are the most crowded, but drastically understaffed. This can lead to instances of medical malpractice due to any of the following:

· Patients not being properly monitored

· Diagnoses that are incorrect

· Diagnoses that are too late

· Incorrect or inappropriate treatment

· Inappropriate doses administered

· Errors in lab tests

· Over dosage

Approximately 50 percent of all cases of negligence in emergency rooms end up as cases of medical malpractice. Every patient who ends up with major health issues through medical negligence deserves rightful compensation.

Originally posted at InjuryBoard by Ben Glass

Q & A - Can a Pregnant Woman File Suit?

Ben Glass — Mon, 29 Dec 2008 12:08:00 GMT

Q. A pregnant woman became concerned that her fetus was not moving and left several messages for her vacationing obstetrician. Because the woman’s calls were not answered, she eventually decided to personally go to the doctor’s office. If the baby was injured, would she be able to file suit?

A. In order for her suit to be successful, she would be required to prove that under the same circumstances, the average qualified physician would have handled the situation in a different manner, like having someone return her calls more promptly, preventing the injuries to the baby. Unlike criminal cases in which it is necessary for the prosecution to prove guilty “beyond a reasonable doubt,” in a civil suit, a person is only required to prove that the actions the defendant took were more likely than not to be the cause.

Originally posted at InjuryBoard by Ben Glass

Staten Island Man Receives Settlement

Ben Glass — Tue, 23 Dec 2008 12:00:00 GMT

A settlement has been reached in a medical malpractice case involving a man from Staten Island, New York who alleged that a doctor failed to remove all of a tumor, resulting in additional, more extensive surgery being necessary several months later.

Evan Perez was only 16-years-old when a lesion on one of his ribs was discovered by doctors in March of 2001.

Brian Gilchrist, the attending pediatric surgeon at Staten Island University Hospital removed the tumor in April of 2001, but according to Perez’s attorney, he failed to remove the entire tumor.

Perez’s attorney said that in spite of assurances otherwise, the tissue was discovered to be cancerous and spread to three other ribs.

Nine months later, Perez was required to undergo an additional surgical procedure, this time at Manhattan, New York’s Memorial Sloan-Kettering Cancer Center, to remove the growth in addition to four ribs on the right side of his body.

Though it is currently unknown whether or not Perez is medically in the clear, his legal ordeal that stemmed from the episode has ended.

Perez received a settlement totaling $1.9 million from Gilchrist and SIUH. The agreement was reached after the jury had been selected before Justice Joseph J. Maltese at the Stapleton home port annex of state Supreme Court, St. George.

Perez, who now resides in new Jersey, has also undergone radiation treatment. According to his attorney, he says he feels better, but his medical prognosis is still unclear.

According to Perez’s attorney, Gilchrist’s insurer will pay $1.75 million and SIUH will pay $150,000.

Originally posted at InjuryBoard by Ben Glass

Botched Surgical Procedure for a Couple from Hurricane, West Virginia

Ben Glass — Sun, 21 Dec 2008 11:56:00 GMT

A couple from Hurricane, West Virginia has filed a medical malpractice suit against a doctor who allegedly botched a surgical procedure to remove a thymus gland on the wife.

The suit was filed by Danielle and Jason Fields against Dr. Rebecca Wolfer and University Physicians and Surgeons Inc. in the Putnam County, West Virginia Circuit Court in June.

According to the suit, on April 26, 2006 Wolfer performed the procedure and closed the incision in Fields’ sternum with sternal wires.

According to Fields, she began experiencing pain following the procedure. According to the suit, the pain continued for a period of several months and was “often severe and debilitating.”

According to Field, she told Wolfer of the pain while still in the hospital, but Wolfer did nothing but give her pain medication. The suit claims Wolfer even accused her once of claiming to be in pain for medication.

Fields says she eventually got a second opinion in September of 2006 from Dr. Matthew Harris, who performed radiographic tests. The suit says that the test revealed the cause to have been a medical mistake from Wolfer misplacing sternal wires.

The suit says that the CT scan revealed that two sternal wires projected directly into Fields’ subcutaneous tissue, with one stopping just beneath the surface of her skin.

Fields said Dr. John Howington at the University of Cincinnati performed corrective treatment on October 18, 2006, which resolved the pain.

The Fields’ seek compensatory damages in addition to costs of suit.

Originally posted at InjuryBoard by Ben Glass

Emergency Room Deaths Caused by Medical Malpractice

Ben Glass — Sat, 29 Nov 2008 08:32:00 GMT

According to a 2007 statistic released by the Centers for Disease Control and Prevention (CDC), 115 million Americans receive treatment in emergency rooms each year. According to a report from the Journal of the American Medical Association, more than 225,000 people die each year as a result of medical malpractice. Nearly half of those deaths are because of emergency room errors.

According to the report, the emergency rooms’ hectic, stressful environment in combination with long work hours for medical professionals can lead to a wide variety of medical errors that can lead to medical malpractice. Errors such as incorrect diagnosis or lack of diagnosis for serious, life-threatening diseases or infections, delay of vital treatment because of overcrowding, dosage errors for prescriptions or medications, diagnostic test omissions, and/or failure to consult specialists.

A Health Grades, Inc. study reported that health professionals misdiagnosed 20-40 percent of emergency room patients. Mistakes like these can result in further injury and wrongful death.

Originally posted at InjuryBoard by Ben Glass

Can you sue for what might have happened?

Ben Glass — Fri, 22 Aug 2008 05:14:00 GMT

Sometimes potential clients call us and complained that "if they had taken the medication that the pharmacist incorrectly gave them they would have become very sick." Since they did not take the medication because they noticed that it was the wrong pill, they did not get sick. They want to sue the pharmacist for what "might have happened." Is this a case?

The law demands compensation for careless acts that lead to real injury. A jury is not allowed to consider what "might have happened" but can only consider in their verdict damages that they believe actually flowed from the alleged negligence and damages that expert testimony establishes will probably happen in the future. It simply does not matter what "might have happened" had you not been smart enough to figure out that the pharmacist had filled the wrong medication.

Originally posted at InjuryBoard by Ben Glass

Doctor Suspended after Removing the Wrong Lung

Ben Glass — Wed, 09 Jul 2008 15:17:00 GMT

The medical license of a surgeon in New Jersey has been suspended after it was discovered by state regulators that he had removed the wrong lung from a patient and then attempted to conceal his error.

According to the state Attorney General’s Office, Dr. Santusht Perera was found by the State Board of Medical Examiners to have removed a portion of the right lung of the patient, when he was supposed to be removing a tumor from the left lung.

According to the board, Perera then informed the patient that there had been a life-threatening tumor within the right lung, despite no such growth existing. He also altered the records of the patient in order to show that he had intended to operate on the right lung.

Perera’s actions were determined by the board to constitute gross negligence.

The board said that if Perera had taken "the most basic and minimal of actions that should be taken by a surgeon in advance of surgery," then the “tragic error” could have been avoided.

In addition to the suspension of his license, Perera, a practitioner at the Hoboken University Medical Center , was assessed fines and reimbursement costs of $81,000.

Originally posted at InjuryBoard by Ben Glass