Recently in Medical Malpractice Category

May 27, 2014

SJC Revives Estate's Wrongful Death Lawsuit

In a recent medical malpractice and wrongful death case, the Massachusetts Supreme Judicial Court (SJC) examined the requirement of "presentment" under the Massachusetts Tort Claims Act (MTCA) - a statutory prerequisite to filing a lawsuit against a governmental entity - and how, under the facts of the case, that requirement reconciled with the requirement as to who is permitted to file an action under Massachusetts' wrongful death statute.

The MTCA makes a public employer liable for property loss, personal injury, or death caused by the negligence of a public employee who was acting within the scope of his or her employment. Under the MTCA, before filing a lawsuit, a person harmed by a public employee's negligence must first "present" his or her claim, in writing, to the executive officer of the public employer responsible, and must do so within two years after the date on which the negligence occurred. This "presentment" gives the public employer six months to investigate the claim, and either deny it or reach a settlement. If the employer does not respond at all, it is considered a denial. After the six-month period has passed, the claimant may file a lawsuit. However, if the claimant does not abide by this presentment procedure, he or she is barred from bringing an action.

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April 1, 2014

One in Three Patients Harmed in Nursing Homes

A government report released last month revealed that one third of patients in nursing facilities suffered a medication error, infection, or some other type of harm related to their treatment. The statistics highlight the ongoing issues with the standards of care at nursing facilities across the country. As discussed in a previous post, Massachusetts is actively raising the bar for treatment of nursing patients, but the concern remains widespread.

An article from Propublica discussed the government report in depth, emphasizing the fact that most of the injuries patients sustained while being treated were preventable. The report was produced following a study commissioned by the U.S. Department of Health and Human Services (HHS). The study focused on skilled nursing care and treatment provided in nursing homes to patients residing in the facility for over 35 days. The report solicited the opinions of physicians who reviewed the records of 653 nursing home patients from 600 facilities across the country.

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March 11, 2014

Disputed Facts as to Surgeon's Negligence are for Jury's Consideration

When a plaintiff's medical malpractice case was dismissed following a medical malpractice tribunal's conclusion that her offer of proof was "not sufficient to raise a legitimate question of liability appropriate for judicial inquiry," the plaintiff appealed. The Massachusetts Appeals Court vacated the dismissal, finding that the plaintiff's proffered evidence, though disputed by the defendant surgeon, was sufficient for a jury's consideration.

In Abrea-Riley v. Lerner, the 44-year-old plaintiff presented to her gynecologist complaining of chronic pelvic pain. Her doctor recommended an operative laparoscopy to evaluate the pelvis, to possibly free up scar tissue and to potentially remove the plaintiff's ovaries. The plaintiff provided informed consent to the recommended procedure.

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March 4, 2014

Death of Toddler Raises National Concerns About Pediatric Dentistry Practices

Millions of Americans visit their dentists routinely for check-ups and teeth cleanings. Typically, such visits are without complications, but occasionally, serious issues with treatment may lead to claims of malpractice. One incident garnered national attention when a three-year-old died after visiting her dentist. According to an article from the Huffington Post, the family of the deceased child is now suing the dentist office for improperly administering anesthesia that resulted in serious brain damage and death to the child. This incident has sparked a national discourse analyzing pediatric dentistry practices and the precautions that dental professionals should take with young patients.

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February 11, 2014

Doctors Concerned About Cancerous Effect of Uterine Surgical Procedure

A recent article from the New York Times has highlighted the medical concerns associated with "morcellation," a surgical procedure designed to remove fibroid tumors from the uterus or to remove the entire uterus as part of a hysterectomy. The procedure involves minimally invasive techniques to cut uterine tissue into small pieces to be removed through small incisions. While the procedure is lauded for its short recovery time and reduced risk of blood loss and infection, many doctors are becoming increasingly concerned that morcellation may have serious consequences for their female patients.

Two articles recently published in the Journal of the American Medical Association (JAMA) suggest that the morcellation procedure can cause irregular growths on internal organs. The rotating blade often used in the technique sprays fibroid and uterine tissue around the site of the operation, spreading tissue debris throughout the abdomen. The fragments of tissue act like seeds when in they come in contact with other internal organs, taking hold and growing on various organs in a patient's body. The growths can cause tremendous internal pain and may result in infection and bowel obstruction. These complications often require additional surgery, and may have much more drastic consequences.

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January 28, 2014

NPR Examines How 'Alarm Fatigue' in Hospitals Threatens Patient Care

We like to believe that today's hospitals always strive to have state-of-the-art facilities in order to provide the best care to patients. But, as hospitals modernize by adopting new technologies, sometimes such innovation actually hinders the performance of doctors, nurses and other hospital staff. As recently discussed by NPR, one such technology is the coded alarm system that is used at most top tier hospitals across the country. Although meant to serve as a notification system for hospital staff, the constant alarm noise often desensitizes caregivers to the coded messages and causes them to miss patient emergencies. The problem is termed "alarm fatigue," and it has been blamed for hundreds of injuries and deaths annually across the nation.

To the untrained ear, the constant beeps and buzzes emitted by various hospital systems can seem meaningless. However, hospital equipment is strategically placed throughout hallways and waiting areas as a coordinated notification system designed to alert doctors and nurses to patient emergencies. For example, a three-beep burst is a crisis alarm notifying attending hospital staff of a patient emergency, while two long beeps is a warning to staff that a patient may have malfunctioning equipment. A patient may be hooked up to various monitors that send different messages to coordinated machines, which then convey the coded messages to staff. Such automatic alarms may convey something as innocuous as a dying battery in a specific piece of equipment, or it may signify a life-or-death-type emergency that requires immediate attention.

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November 5, 2013

Medical Malpractice Claims of Misdiagnosis

Massachusetts is home to some of the most prestigious, most technologically advanced, and highest quality hospitals in the country. Many of the nation's best trained doctors staff these hospitals and practice medicine in Massachusetts. While the quality of medical care in Massachusetts remains at a very high level, there has been a persistent rise in the number of malpractice suits filed in our courts. Most of these claims are filed against primary care physicians and the overwhelmingly majority of them are rooted in allegations of misdiagnosis.

The Boston Globe recently reported on the most common medical malpractice complaints. The article discusses a new study where the most common bases for malpractice suits were found to include accusations of diagnostic mistakes, alleged errors where a physician failed to make a proper referral to a specialist, rushed physical exams, and patient neglect. The Brigham and Women's Hospital study found that 72 percent of malpractice suits focused on these types of alleged medical misconduct.

A potential malpractice claim may arise from the treatment rendered to a patient by a primary care physician where the physician has no specific specialty, but has the duty to know when to make a referral to a specialist. The study leader offered that diagnostic mistakes are the worst problem. The doctors who conducted the study examined the records of 550 malpractice lawsuits involving primary care physicians dating back to 2005. Of those lawsuits, 190 alleged the misdiagnosis of cancer, and 108 of them claimed the doctor failed to make appropriate diagnoses of heart disease, blood vessel diseases, infections, and strokes.

The rising number of complaints of misdiagnosis by doctors of patients' physical ailments is mirrored by the rise in patients' complaints against doctors over-diagnosing mental illness and blithely prescribing powerful behavior altering prescription drugs, apparently in an effort to sedate and control behavior. A bill presently before the state legislature focuses on the over prescription of psychotic drugs in nursing homes. And while the problem is more acute for the elderly, it is also clearly more widespread than that; affecting and threatening all Massachusetts residents.

The bill before the legislature is focused on the potential for abuse in assisted living facilities designed for elderly patients. The bill aims to require that prescribing care givers must receive informed consent from patients or their responsible family members before they may administer powerful drugs that present particularly high risks of injury or death to older patients. Requiring informed consent is essential to making our nursing homes safer for our elderly loved ones, just as properly diagnosing medical issues and making appropriate referrals must be prioritized and made achievable goals for Massachusetts doctors and hospitals.

September 30, 2013

Misdiagnosis is most common Primary Care Medical Malpractice Claim

A recent study conducted by Gordon Schiff, M.D. with his colleagues from the Harvard Medical School and Brigham and Women's Hospital, found that most medical malpractice primary claims in Massachusetts center around alleged misdiagnoses.

In recent years, the focus in the medical field has been on make improvements for patient safety. Efforts to decrease the number of medical malpractice efforts have focused more on outpatient care.

The study focused on the types, causes and eventual outcomes of the primary care medical malpractice claims that had been made. Using claims that had already been closed from two of the top health insurance providers in Massachusetts between 2005 and 2009, the researches were able to use a total of 7,224 cases for the study.

Of the 7,224 cases that were studied, 551 came from primary care practices. Of these, a whopping 397, or 72.1%, had allegations about diagnosis. Most frequently this pertained to either a failure to diagnosis or a delay in the diagnosis of cancer. Another 12.3% of cases had to do with issues relating to medication, while 7.4% concerned other forms of medical treatments, 2.7% pertained to communication, 2% had to do with the rights of the patients, and 1.5% had to do with the safety of the patients. Overall, the researches discovered that the primary care medical malpractice cases were in general more likely to end up with either a verdict or settlement that favored the patients when compared with other medical malpractice claims.

September 25, 2013

New Study on Preventable Deaths in Hospitals Shows Higher Numbers

Back in 1999, approximately 98,000 Americans were dying each year due to preventable errors made in hospitals. At the time, the news made plenty of headlines and people called for new policies and action to decrease that number.

However, just the opposite has happened. A new study released by the Journal of Patient Safety found that over four times that number of patients, or up to 440,000, now die from preventable medical hospitals.

Part of the reason for the finding lies in the new research methods used to find errors and cause of death. New innovations from Dr. David Classen and the Institute for Healthcare Improvement among others allow us to find out more about these errors.

With this new information, medical errors more up to the third leading cause of death in the United States, leaping over car accidents and only behind cancer and heart disease. Leaders in the field of patient safety believe that this number is closer to reality than the smaller number from 1999, and should be treated as the best estimate.

When a patient dies due to a medical error, it means that they are not dying from the ailment that caused them to seek treatment initially. Rather, the pateints are dying from causes that proper treatment while in the hospital could have prevented. These errors vary greatly, and can be anything from improper dosage of medication to sponges left inside of patients during surgery to infections cause by the use of contaminated equipment. Over one thousand of Americans are dying each day due to these simple mistakes.

Compounding the problem, the costs of these mistakes are paid for by the taxpayers. When a hospital makes a mistake, the extra cost associated with it is shifted onto the taxpayers or businesses that pay for their healthcare. The Journal of the American Medical Association conducted a study on these costs and found that for every employee who had an infection following surgery the employer paid $39,000 extra.

Of course, leaders in the hospital injury say that it is very hard to reduce the number of medical errors due to the complexity of their operations. The best way to prevent errors is to have every employee of the hospital strictly abide by the rules, and to have all systems function correctly.

And, the leaders are right. However, that does not excuse the high number of errors that occur due to negligence. Many studies have been conducted, and findings have shown there are many strategies that could go a long way toward reducing this number. It has also been found that when hospitals make safety a priority and use these strategies, medical errors decrease. The opposite has found to be true as well. There is no excuse for this high number of medical errors to still be occurring.

If you or a loved one has been a victim of a medical error or other medical malpractice it is important to speak with an experienced personal injury attorney. Contact Parker Scheer LLP at 886-414-0400 today.

August 5, 2013

Massachusetts Appeals Court Vacates Medical Malpractice Tribunal's Dismissal of Claim

On June 7, 2013 the Massachusetts Appeals Court vacated a medical malpractice tribunal's dismissal of a medical malpractice claim, where a defendant doctor had allegedly improperly discharged a patient with a prescription for Ativan (a potent antianxiety and sedative drug), who then walked in front of a train and was killed the day after his release. The tribunal's dismissal was found to be improper as (1) the plaintiff had produced sufficient evidence to show the defendant's treatment had fallen below the requisite standard of care, and (2) there was adequate proof to find a causal relationship between the defendant's alleged negligence and the harm that occurred.

As to falling below the standard of care, Plaintiff's expert witness testified that there was clear evidence the defendant had not read the deceased's full medical record prior to releasing him; that the defendant had instead relied upon the recommendation of a mental health clinician who himself had failed to read the deceased's full medical record and that the defendant did not consult the deceased's personal psychiatrist. Further, Plaintiff's expert asserted that had the defendant read the record, he would have appreciated his patient's capacity for regression and acute suicidal tendencies.

As to causation, Plaintiff maintained that the deceased died as a direct result of his having been negligently discharged by the defendant doctor. Plaintiff argued that the defendant allowed his patient, who was regressing, to regress further; that commitment would have been preferable to release; and that releasing the patient without a discharge plan with a prescription for Ativan was negligent and improper. The Appeals Court found that the proof presented on these allegations was sufficient to find a causal relationship between the doctor's actions and his patient's death.

The Appeals Court remanded the case to the Superior Court for trial.

The issue of potential liability for improperly prescribing prescription drugs is not novel; rather it is an issue that has become pervasive in both the Massachusetts civil and criminal courts. Recently, a Massachusetts Superior Court judge found a defendant not guilty of motor vehicle homicide in a criminal trial. The defendant driver was operating under the influence of the sleep-aid Ambien when he struck and killed a man in front of his wife and child as the he changed a flat tire on Interstate 93. State Troopers found 26 ½ pills in the car following the tragedy, while the investigatory reports adduced that the defendant had picked up his prescription for 30 Ambien pills earlier that day. The defendant admitted having taken a pill a few hours before the crash, and was described as confused and disoriented by the State Troopers at the scene immediately after the accident. The Food and Drug Administration has since changed the labeling of Ambien to note its side effects.

While that defendant was acquitted of criminal motor vehicle homicide, the victim's family still planned to pursue a civil action. They hope to prevail at trial in a civil suit, where the standards of proof are different from those in a criminal case, and the plaintiff need only prove that the defendant driver negligently caused these horrible injuries. If you or a family member has suffered from a similar tragedy, please contact Parker | Scheer LLP for a free consultation with one of our experienced Personal Injury Lawyers.

January 7, 2013

Changes to Massachusetts Liability Law Regarding Medical Malpractice Could be Game Changers

"Recent changes to Massachusetts' medical liability laws could be major game changers for those pursuing medical malpractice cases in the state," according to Eric J. Parker, managing partner of Parker Scheer, LLP, a Boston law firm that represents victims of medical negligence.

The Massachusetts legislature recently enacted St. 2012, Chapter 224, which resulted in the following changes:

Admissible Apologies: Under Massachusetts law, G.L. c. 233, §23D, a statement of sympathy, regret, etc., as it relates to a non-intentional harm or accident, is not admissible. Chapter 224 allows these types of statements to be admitted to impeach a contradictory statement made by a medical provider under oath. However, Chapter 224 provides no definition of what testimony is deemed a "contradictory statement."

Disclosure of Unintended Outcomes: Chapter 224 now mandates that a healthcare provider or facility, or an employee or agent of a healthcare provider or facility, fully disclose to a patient any unanticipated outcome with significant medical complications that results from the fault of the healthcare provider or facility, or an employee or agent of a healthcare provider or facility. Under G.L..c. 223 §79L(a), an "unanticipated outcome" occurs when "the outcome of a medical treatment or procedure, whether or not resulting from an intentional act, that differs from an intended result of such medical treatment or procedure." Chapter 224 does not clarify what constitutes "medical treatment or procedure" or what liability will incur if a full disclosure is not made. However, it is likely that failing to make a full disclosure could support the argument that the statute of limitations "tolled" until the unanticipated outcome was disclosed.

Notice to File Lawsuit: A patient [or his attorney] is now required to notify a healthcare provider of any impending lawsuit. The notice must be in writing and delivered at least 182 days before the lawsuit is filed. A healthcare provider has 150 days to respond, in writing, to the notice. Claims nearing the end of their statute of limitations are exempt from the notice provision.

If you have been injured by a healthcare provider or an employee or agent of a healthcare provider in Massachusetts, and think you may have a medical malpractice case, please contact Parker | Scheer LLP for a free consultation with one of our experienced Personal Injury Law and Business Litigation Lawyers.

November 30, 2012

District Court Rules Meningitis Suits against New England Compounding Can Proceed

The US District Court, District of Massachusetts (Boston), has ruled to allow the meningitis cases against the New England Compounding Pharmacy to proceed. These cases are about the fungal meningitis outbreak that has been linked to the company's injectable steroids. In the ruling, the judge also stated that evidence for the cases must be preserved.

New England Compounding Pharmacy had asked to delay a dozen filed lawsuits filed in the Massachusetts Federal Courts pending a decision in 2013 by the Judicial Panel on Multidistrict Litigation, which would decide the court that would hear the hundred of cases from the entire country.

In addition, the meningitis cases will be consolidated, a measure that is being supported by the plaintiffs as well as New England Compounding Pharmacy. According to the Centers for Disease Control and Prevention, the outbreak caused more than 30 wrongful deaths and 490 injuries across the US.

Sometime during the next few weeks, a magistrate judge will be holding hearing about the procedures that experts can use to gather evidence during their inspections of the New England Compounding's facilities, located in Framingham, Massachusetts.

The reason for concern over the evidence is that the longer experts have to wait, the greater the chance evidence could be compromised. The attorneys representing New England Compounding feel that the MDL panel should decide the cases, and are fine with the decision to coordinate the cases. A decision by the MDL is expected to come after January 2013. Until that time, parties can continue to prepare and service the intial disclosures.

This case is Cole v. New England Compounding Pharmacy, 12- 12066, U.S. District Court, District of Massachusetts (Boston).

"If you or a family member have been injured or suffered wrongful death from the meningitis outbreak, it is important to contact an experienced personal injury lawyer quickly. Please contact Parker | Scheer LLP for a free consultation with one of our experienced Personal Injury Lawyers."

October 7, 2012

Meningitis Outbreak Tied to Framingham Massachusetts Pharmacy

iStock_000020900352_ExtraSmall.jpgA total of 52 people have now been identified as being infected with fungal meningitis after receiving injectable steroids (methylprednisolone acetate) prepared by New England Compounding Center Inc. in Framingham, Massachusetts. The newest count brings to eight, the number of states reporting infections tied to the tainted medications, which has already claimed five lives.

To date, more than 950 people have been identified as receiving the tainted medication from the Framingham pharmacy. Those infected reported symptoms including headache and fever, and traces of meningitis were found in the patient's spinal fluid. Meningitis, which can be either viral or bacterial in nature, is an inflammation of the membranes covering the brain ("meninges") and can be fatal. A list of health care facilities and dispensaries believed to have received tainted lots can be found at http://www.cdc.gov/HAI/outbreaks/meningitis.html

Parker Scheer LLP is closely following the ongoing investigation of the Framingham, Massachusetts pharmacy. If you or someone you know has suffered an infection thought to be caused by tainted medication, call us. There is never a charge to discuss your potential case and all information shared will be maintained in strict confidence. Parker Scheer attorneys are available to speak with you seven (7) days at 866-414-0400.

July 18, 2012

Medical Malpractice Payments and Values in Decline

On July 12, the group, Public Citizen, published a study stating that for the eighth consecutive year, the number and total value of malpractice payments made on behalf of physicians declined in 2011. Information for the study was provided by the National Practitioner Data Bank, (NPDB), a federal clearinghouse for medical malpractice payments. Public Citizen said that the downward trend in payments discredits the argument made by organized medicine and Republican politicians that "medical malpractice litigation is responsible for rising healthcare costs." Also discredited is the push by GOP members of Congress to enact tort reform measures, such as a cap on non-economic damages, which Public Citizen says is an unnecessary restriction on patients' legal rights. As a result, tort reform advocates say the annual Public Citizen data is misleading because malpractice payments on behalf of physicians frequently go unreported.

In 2011, the total value of payments was roughly $3.2 billion dollars. The payments, which made up .12% of total healthcare costs, were an all-time low. According to Public Citizen, the trends do not support the notion that physicians widely practice defensive medicine to avoid malpractice litigation. When the risk of litigation is in decline, "such a conclusion does not stand to reason". Eighty percent of total medical malpractice payments were made for death, a major or significant permanent injury, quadriplegia, brain damage, or other conditions requiring life-long care, "disproving the claim that medical malpractice litigation is frivolous," said Public Citizen.

Arguing against these reports, critics of Public Citizen have long called the National Practitioner Data Base a poor source of information about malpractice litigation because payments made on behalf of hospitals do not have to be reported to the NPDB. Many payments on behalf of physicians never make it into the system due to the fact that when someone sues both a hospital and a physician, often times the physician is dropped as a defendant before a final settlement or jury award, making the hospital the only responsible party.

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June 26, 2012

New Hampshire Governor Vetoes Medical Malpractice Reform Bill

A New Hampshire bill, aimed at reforming medical malpractice law suits, was vetoed by Governor John Lynch on June 20th. If approved, the bill would have established a voluntary program in which patients injured by medical providers, would agree not to file suit in exchange for compensation of medical expenses and lost wages. Governor Lynch claimed that while the bill had some compelling features, on balance, the interests of the public and the medical profession were not evenly served.

Lynch pointed specifically to the bills' requirement that would have required patients to decide whether or not to litigate their case within five days of meeting with a "case advisor." Lynch also stated that the bill needed more work in order to adequately protect the interests of injured patients. Additionally, patients who accepted an early offer would not receive compensation for lost wages, pain and suffering, or other otherwise compensable damages. Finally, victims who declined early offers would also be required to pay the legal fees of the health care providers they sued if they were not awarded substantially more by a jury than by the health care provider's early offer.

If passed, this legislation would have made New Hampshire the first State to allow health care providers to extend a cash settlement offer to victims in order to avoid litigation and trial. Many hospital lobbyists and executives were strongly in favor of the bill. For more on this topic, see Roadmap to Reform Needs New Direction, written by Eric J. Parker.