Northern Virginia Personal Injury Lawyer - Medical Malpractice

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

More Than Half of the Injuries Caused During Medical Treatment are from Preventable Errors

Ben Glass — Mon, 03 Nov 2008 19:28:00 GMT

Medical malpractice takes place when a patient suffers injuries due to negligent care or preventable errors during the course of receiving medical treatment. A doctor, nurse, or someone else in the medical or healthcare profession can cause medical malpractice.

If a patient receives treatment for an injury, but it never heals, that is not medical malpractice. Healthcare providers are not liable for treatment that simply doesn’t work because they are unable to guarantee success. Similarly, doctors are not liable for all errors that occur during complicated medical procedures such as surgery. Only the errors that could have been easily prevented or were caused by negligence are a basis for a medical malpractice claim.

However, this does not mean that medical malpractice is a rare occurrence. One Harvard Medical Practice Study says that more than half of the injuries caused during medical treatment are because of preventable errors and another 25 percent are due to negligent care. That means that more than 75 percent of the time a patient sustains an injury from medical management, there is a case for medical malpractice.

Medical malpractice can take place at any point during treatment. In past cases, 80 percent of malpractice occurred at a hospital, with 20 percent taking place at a doctor’s office or other non-hospital setting.

Originally posted at InjuryBoard by Ben Glass

What is "informed consent"?

Ben Glass — Sat, 23 Aug 2008 05:17:00 GMT

Informed consent is a concept in the law that says that before rendering treatment a physician must use reasonable care to properly utilize you of both the risks and the benefits of the treatment. If a physician fails to advise you of both the risks and benefits of the treatment he may be liable to you for any damages caused by the treatment if you can convince the jury that had you known the full risks and benefits of treatment you would not have undergone the treatment.

Informed consent cases are usually pretty tough. Many times you are handed a form just before surgery that appears to be an "informed consent" form. Whether or not this form is adequate (and usually it's not) is up to a jury. In almost all cases the doctor will testify that he or she did have a full discussion with you of the risks and benefits of the proposed treatment. Therefore it becomes an "he said/she said" situation and these types of cases are almost always one by the doctor.

Only an experienced medical malpractice attorney in your area can help you determine whether you have a medical malpractice case paste on a claimed lack of "informed consent."

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

Is a misdiagnosis malpractice?

Ben Glass — Thu, 21 Aug 2008 05:14:03 GMT

What happens when you learn that the first diagnosis that your doctor made is wrong? What if you took medication that has been harmful to you that you didn't need to take because the diagnosis was missed? What if they delay in making the correct diagnosis has cost you the chance of a cure?

While all of these situations may seem to have an obvious answer they're not necessarily medical malpractice. Doctors are judged by the "standard of care" and that means that their decisions are deemed to be malpractice only if they fell outside of the range of decisions that a reasonably prudent physician in a similar situation and similarly trained would have made.

Generally, you are medical malpractice attorney must find an experienced physician in the same or similar specialty as the doctor who made the misdiagnosis who will examine the medical records and render an opinion as to whether the first doctor's care fell outside the "standard of care." Only when it does to you potentially have a medical malpractice claim.

Remember, each case is different and must be examined on its own merits.

Originally posted at InjuryBoard by Ben Glass

What damages are generally paid by a settlement or verdict for a Virginia Medical malpractice case?

Ben Glass — Mon, 11 Aug 2008 06:07:01 GMT

In a medical malpractice case in Virginia, if the defendant is liable to you for injury, then a jury may consider any of the following which it believes were actually caused by the defendant's negligence.

1. Medical expenses.

2. Loss of wages.

3. Loss of earning capacity.

4. Pain and suffering.

5. Bodily injury and their effects on the person.

6 Any scarring or disfigurement

7 Inconvenience.

The jury cannot award any money for damages that are only "possible" or that are speculative. For future damages (bill, wages, future surgery, etc) you have to show that it is more likely than not that the future damage will actually take place.

The jury cannot award damages for things that MIGHT have happened if left undiscovered. For example, the pharmacist fills the wrong medication. If you had taken it you would have become very ill or died. You didn't take it. The jury cannot award you damages for the fact that IF you had taken the wrong pills it would have been very harmful to you.

Virginia currently caps all damages in medical malpractice cases at two million dollars or less, depending on when the malpractice occurred.

Originally posted at InjuryBoard by Ben Glass

Keeping Up With Doctors Who Move From State To State

Ben Glass — Tue, 22 Jul 2008 13:28:34 GMT

In 2004, Dr. Enrique Tomeu abruptly closed his obstetrics practice in Virginia Beach and left the area after multiple medical malpractice suits were filed against him for allegedly injuring babies during delivery. It now seems that the worst may have been yet to come.

Tomeu practiced in New Zealand for a year when he was found at least partly responsible for the death of a baby by a coroner. After being relieved of his duties, he turned up in North Carolina, continuing to practice medicine.

This case newly illustrates that despite recent reforms, it is possible for a doctor to remain ahead of their medical malpractice records by moving.

Virginia Beach Circuit Court records show that Tomeu had been named as a defendant in seven malpractice suits over a 10 year period. Three of the cases resulted in payments to the plaintiffs on two settlements and one jury verdict. The three cases totaled over $500,000.

In each case, the circumstances were similar. In each, the babies Tomeu delivered allegedly suffered shoulder dystocia, which occurs when the baby’s shoulder is caught behind the pelvic bone of the mother during delivery. In that position, the nerves connecting the shoulder, arm, and hand of the baby to the spinal cord can be stretched, torn, or pulled from the spinal column.

The injury is the most common among deliveries of large babies and can cause the condition of Erb’s palsy, which is a form of paralysis that leaves the shoulder, arm, and hand permanently disabled.

Originally posted at InjuryBoard by Ben Glass

Nurse Arrested After Infecting Patients

Ben Glass — Sat, 29 Mar 2008 09:59:21 GMT

In an unfortunate case of medical malpractice, a nurse suspected of theft of painkillers during surgical procedures is believed to have infected at least 15 members of military service or their relatives with hepatitis.

The nurse, retired Army captain Jon Dale Jones, was placed under arrest in Miami, Florida earlier in March and charged with assault of three of those patients and possession of a controlled substance through fraud.

According to federal prosecutors, Jones is believed to have spread the disease in 2004 during surgical procedures at a military hospital in El Paso, Texas by diverting fentanyl, a powerful painkiller often used as an anesthetic, from patients to himself.

The outbreak, followed by a criminal investigation that lasted nearly three years, apparently did not prevent Jones from continuing to work as a nurse in Texas in addition to at least two other states and Washington, D.C. Jones, 45, pled not guilty and has been released on bond.

It is unclear how Jones allegedly transmitted the potentially fatal illness to patients, nor is it clear how he was able to obtain the drugs intended for the patients during surgery. He has denied having used dirty needles.

According to court records, the alleged victims included the son of a former commanding general of Fort Bliss, an active-duty soldier, a retired Marine Corps gunnery sergeant's wife, and a retired Army chief warrant officer.

Michael Volk, an attorney representing eight infected patients has filed suits against Jones and the nursing agency which employed him at the Army hospital. The suit claims the infections resulted in irreparable harm and forced the patients to undergo extensive, aggressive medical treatments.

Originally posted at InjuryBoard by Ben Glass

Should a Nursing Home Be Required to Carry Insurance

Ben Glass — Fri, 28 Mar 2008 06:00:00 GMT

Every so often we see debates in the media about whether hospitals, doctor, even lawyers, should be required to carry insurance. Required, that is, by law.

Here's whats brewing in Oklahoma

According to a consumer group based out of Tulsa, Oklahoma, many of the nursing homes in the state appear to be under operation without insurance for medical malpractice.

According to Hugh M. Robert, the executive director of the Oklahoma Center for Consumer & Patient Safety, the lack of insurance for the homes often leaves families with no legal recourse if a patient of one of the nursing home suffers serious neglect or abuse. He says that some of those nursing homes are being operated by shell companies which have no assets and no insurance.

Robert has called for the enactment of a Senate-passed bill that would require insurance to be carried by the nursing homes.

According to Becky Moore, executive director of the Oklahoma Association of Health Care providers, a "blizzard" of lawsuits has resulted in a fivefold increase over recent years in the rates of insurance.
According to Moore, the company that supplied a majority of the nursing homes in the state with insurance went into bankruptcy.

Originally posted at InjuryBoard by Ben Glass

Those Darn Frivolous Malpractice Cases

Ben Glass — Thu, 27 Mar 2008 09:51:27 GMT

Every medical malpractice case is frivolous, right?

Some folks can't utter the words "malpractice lawsuit" in a sentence that doesn't include the word "frivolous."

How much is this one worth?

A retired woman from Germany has filed a medical malpractice suit against a hospital after she went in to undergo a surgical procedure on her leg, but instead was surgically given a new anus, according to U.K. newspaper the Daily Telegraph.

The woman woke up after the surgery to discover that there had been a mix-up between her and a patient who had been suffering from incontinence and was to undergo a surgical procedure on her sphincter.

The surgical team that performed the procedure has since been suspended by the clinic in Hochfranken, Bavaria.
The woman now plans on filing a malpractice suit against the hospital. She still requires the surgical procedure on her leg that she initially went to the clinic for. She is currently searching for another hospital to perform the procedure.

Originally posted at InjuryBoard by Ben Glass