Eric Parker was featured in the April 27, 2012 issue of the Boston Business Journal's "Viewpoint" section. In "Roadmap to Reform Needs New Direction," Parker gives his view on the Massachusetts Medical Society's recently announced plan to reform the State's medical liability system. Click here to read more.
The family of an 8 year old boy recently obtained a $4.6 million settlement with the maker of a clamp used during a botched circumcision, according to an article appearing in the Los Angeles Times.
The boy's penis was partially amputated when he was circumcised as an infant. The accident is one of many examples of injuries caused by circumcisions around the country.
Parker | Scheer LLP has handled numerous botched circumcision cases on behalf of children who suffered partial or total amputation of the distal penis following circumcisions, including one resulting in a $1.26 million structured settlement for the child.
In that case, a pediatrician who performed the circumcision inadvertently amputated a portion of the infant's glans penis. The doctor used sutures to repair the damage, leading to the loss of tissue. The pediatrician did not recommend surgical repair by a pediatric surgeon, which if it had been performed, would likely have improved the cosmetic result and reduced the degree of a condition involving the abnormal placement of the urethra opening on the penis.
The device used for the circumcision in the case we handled - the Mogen clamp - was also used on the boy in the recent case in California. The Mogen clamp was first invented in 1954 by a Brooklyn rabbi who wanted to standardize circumcision equipment. The Mogen clamp loosens the foreskin, then pulls it through the clamp and clips it with a single cut. Some think the Mogen clamp has a design flaw because it doesn't allow users to see what they're cutting.
The other two devices commonly used for circumcisions - the Gomco clamp and Plastibell circumcision instrument - are two-part systems designed to protect the tip of the penis during the procedure.
Approximately 56 percent of boys born in the U.S. are circumcised in hospitals, according to the Centers for Disease Control and Prevention. The CDC does not track the number of circumcisions performed in religious ceremonies, such as the Jewish bris .
Miltex, Inc., the defendant in the California botched circumcision case, stopped distributing the Mogen clamp in 1994. In 2000, the U.S. Food and Drug Administration issued a public health notice concerning the Mogen and Gomco clamps after receiving about 20 injury reports annually since 1996, including lacerations, hemorrhaging, amputations, and urethral damage. The FDA did not recall the clamps, but warned users on the proper use of the devices.
Despite continued reports of injuries involving the Mogen clamp, the device remains popular among physicians who perform circumcisions.
Continue reading "Botched circumcision leads to $ 4.6M settlement" »
According to a new study, one out of every three Americans will suffer injury during a hospital stay. The study, conducted by David Classen from the University of Utah, confirms that healthcare is subject to grossly inaccurate reports of errors and a shocking number of injuries caused by medical treatment.
The study found that older methods used for identifying medical malpractice provided a skewed version of data regarding the prevalence of medical error in hospitals. The study compared three different methods of tracking medical error among a pool of about 800 patients from three top American hospitals. These methods included two older error tracking methods: voluntary reporting in patients' medical records, and voluntary reporting to the Agency for Healthcare Research and Quality's Patient Safety Indicators. The third method is newer. Developed by the Institute for Healthcare Improvement in Cambridge, Massachusetts, the Global Trigger Tool method considers medical errors encompassing a wide variety of issues, ranging from bed sores, to foreign objects left in the body after surgery, to serious and life-threatening complications.
With the use of the Global Trigger Tool, the study identified a striking difference between the number of medical errors actually occurring in hospitals versus those that were ever reported. The two older methods missed over 90% of the injuries caused by medical treatment. Thus, the study found medical errors were ten times more prevalent than reported. This result emphasizes the need for a more accurate and effective reporting system for healthcare professionals to understand and curtail hospital errors that result in preventable injuries to patients.
For more information on this study, please click here to access the Health Affairs article.
Continue reading "Odds That You'll Encounter Medical Error at a Hospital? One in Three." »
We often hear that the American medical industry is among the best, if not the best, in the world. But for all the cures, medical advances, and lives saved, there still exists a darker side to the medical industry which we hear little about in the media. The understated risk of injury to a patient while in the care of a medical professional is something that is too often swept under the rug or minimized by the medical community. When the rug is lifted though, the reports show that in the United States alone, the number of patient deaths caused by medical error per year range from an estimated 98,000 to 250,000. Other statistics do not paint a much brighter picture. For example, studies suggest that one in seven Medicare patients are injured during medical treatment. Even the average patient will be subject to at least one medication error per day.
So why does the medical industry tolerate such dismal statistics? The answer to this question was recently addressed in an article written by Marshall Allen titled "First Do No Harm." Allen addresses how hospitals and doctors attempt to keep medical error rates within the statistical national average, but do little to achieve a rate below that benchmark. This, Allen believes, creates an even larger problem. While a hospital may appear to have a good safety record, the data really only shows that the hospital has an error rate similar to that established as the national average. Allen argues that the medical industry should strive for an error rate of zero rather than a statistical average, thereby enforcing a zero tolerance policy for medical accidents. Any other goal is untenable for preventable injuries.
Allen also addresses the lack of an accurate reporting system of medical errors within the medical care industry. As the medical industry operates today, it lacks a reliable mechanism to show how safely doctors and hospitals are performing. Often, data concerning reported medical errors is inaccessible to the public. More importantly, the majority of medical mistakes go unreported. Systematically recording errors, Allen argues, would spur improvements in safety in the medical industry, and would drive the accepted standard for error from merely meeting the national average down to zero. The medical industry could police itself through a reporting mechanism, and patients could rely on that system to accurately select the medical professionals with the best reputation for safe practice.
Patients expect to receive safe medical treatment while in the care of medical professionals and do not expect to suffer further injury. No patient should pay escalating costs for injuries that are directly attributable to the hospital or doctor treating him or her. According to Allen, until hospitals strive for zero tolerance, Americans are subject to the possibility of suffering personal injury, or even death, as a result of preventable errors by medical professionals.
For more discussion of these issues, please see Marshall Allen's article, available here.
Recently proposed legislation in the state of New York would dramatically limit the amount of non-economic damages a victim could recover in a medical malpractice case to just $250,000. Non-economic damages consist of claims such as pain and suffering and loss of consortium. If approved, New York would join a number of states that have already imposed similar restrictions. In time, Massachusetts medical malpractice legislation could follow the trend.
Currently in Massachusetts, a victim of medical malpractice may be limited to recovering $500,000 in damages for pain and suffering. The defendant must invoke the relevant law at trial for it to influence the judgment, or the cap does not apply. Once invoked, a victim may be awarded more than $500,000 if special circumstances exist, such as loss of a bodily function or disfigurement. For example, John Smith undergoes an operation to repair his back by fusing two disks together. The surgeon fuses the wrong disks. This leads to numerous follow-up surgeries to correct both the old and new back problems.
Rehabilitation does not work for Mr. Smith. He still suffers from chronic back pain which prevents him from enjoying activities with his wife that they enjoyed before the accident. In addition, his wife is forced to take time off from work so that she can care for her husband. Mr. Smith sues the surgeon for pain and suffering, and his wife brings a claim for loss of consortium. Both Mr. and Mrs. Smith win their cases. The jury awards him $350,000 for pain and suffering, and she receives $100,000 for her loss of consortium claim. Under current Massachusetts law, the Smiths can recover the full amount of the damages awarded. This would not be the same result if the New York legislation were adopted by the Commonwealth.
New York's proposed medical malpractice reform would significantly limit the amount of compensation victims like the Smiths may recover for the damages suffered. Imagine the effects that this legislation would have on the case of Mr. Smith. He was awarded, and may recover, $350,000 under current Massachusetts law, but he would have been limited to recovering only $250,000 under the proposed New York legislation. Mrs. Smith, however, would still be able to recover her $100,000 under either current Massachusetts law or the proposed New York legislation, as it is an amount still within the $250,000 limit. The proposed New York legislation might also have the effect of restricting a judge's discretion to acknowledge special circumstances of a case that warrant an award greater than the $250,000 limit. Quite simply, the proposed New York legislation could represent an enormous barrier for victims of medical malpractice seeking to be made whole. If Massachusetts were to adopt similar legislation, its citizens could be burdened with the same limitations.
For the text of the proposed New York legislation, please click here.
Continue reading "New York Medical Malpractice Proposed Legislation: Could Massachusetts Be Next?" »
Civil litigation in Massachusetts moves slowly. So slowly in fact that clients routinely voice frustration to their personal injury attorneys over how long their cases take to resolve. This is particularly true in the area of medical malpractice litigation, where the life of an average case, from intake through trial, can easily take upwards of three or more years to complete. These days, medical malpractice cases seem to be taking even longer to resolve.
One reason for the snail's pace of medical malpractice litigation may have something to do with a "bone" the Massachusetts legislature threw to the medical malpractice insurers a few years back. I'll call it "the free ride" bone.
In almost any other category of claim for personal injury, for example,. auto-related injury or product liability, commenced in Massachusetts State court, the plaintiff is legally entitled to receive - on top of the amount ultimately awarded by the jury or judge - "pre-judgment interest" at the rate of 12% per year, calculated from the date of the filing of the civil complaint with the court (not the date of injury) through the date the court enters final judgment. So, by way of example, if a person is injured as a result of a car accident and files a law suit against the negligent driver on January 2, 2010, and the jury returns a verdict in favor of the plaintiff on January 2, 2013 in the amount of one million dollars, the plaintiff would be entitled to receive a total award of $1,360,000.00 (one million dollars plus $360,000 in pre-judgment interest).
The reasoning behind pre-judgment interest is to disincentive defendants (insurance companies for the most part) from dragging their feet and denying funds to which the plaintiff is legally entitled. The system works quite well. Insurance companies hate paying pre-judgment interest, and, in fact, have worked quite hard to convince Massachusetts law makers that the rate of 12% is excessive - particularly in today's low-interest rate environment.
Fortunately for plaintiffs, the Massachusetts legislature understands that pre-judgment interest has something more than an economic benefit in mind; it was designed to prevent insurance companies from sitting on their hands and doing nothing (something insurers would otherwise love to do in every case).
Enter the Massachusetts Medical Malpractice Insurance Lobby. In what should be regarded as nothing short of a coup, the insurance companies that insure doctors in Massachusetts successfully convinced the Massachusetts legislature to lower the pre-judgment interest rate in medical malpractice cases only, from the standard 12% annual rate, to a rate that is tied to United States Treasury rates - in short - just about 0% these days. The net effect of this coup was to provide the medical malpractice insurance companies with every reason in the world to work slooooowly. So slowly in fact that medical malpractice cases currently take longer than just about any category of injury-related litigation.
In a perfect world, members of the Massachusetts legislature would actually take notice of the monster they've created by virtually eliminating pre-judgment interest and the intended goal of the pre-judgment statute. But Massachusetts remains a long, long way from the perfect world, so don't count a change in the law any time soon.
An individual infected with a "superbug," an antibiotic-resistant bacteria, was treated in a Massachusetts hospital earlier this year, the Boston Globe reported on September 14, 2010. That patient, as well as the only other two United States patients with "superbug"-related infections, had been in India, and two out of those three underwent medical procedures while in India. In fact, the threat of infection from this organism is highest in hospitals. For example, a person is at risk while undergoing a surgery with many open wounds, according to that article.
While the "Superbug" article summarized above discusses the enormously rare cases of only three U.S. patients, it is illustrative of a far more common reality. Each year hundreds of thousands of adults and children are blindsided when even simple medical procedures cause complicated and serious injuries. When those injuries are caused by a doctor's negligence, the patients deserve recovery.
Parker Scheer lawyers have successfully represented scores adults and children injured or killed as a result of medical errors.
'Superbug' patient treated at MGH - The Boston Globe
Continue reading "Patient infected with "Super Bug" Treated at Massachusetts Hospital" »
Parker Scheer LLP recently secured a $1 million dollar settlement for a client in a Boston Medical Malpractice Case. This medical malpractice case involved the failure to diagnose Wilson's Disease. In January 2002, the plaintiff, a 20-year-old female college student, developed a rash on her back, prompting a consultation with a dermatologist who prescribed the prescription drug Minocycline.
Read full case report.
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