Articles Posted in Medical Malpractice

A misdiagnosis can have many negative effects on a patient. One is a patient getting treatment for a condition they don’t actually have. Such unnecessary treatments can be problematic, particularly if they carry risks of severe side effects.

One medical condition that has treatments that can have major side effects is multiple sclerosis. So, avoiding MS misdiagnoses is very important. Unfortunately, this disease has certain aspects that can make it particularly prone to being diagnosed when it isn’t actually there.

For one, its symptoms can be similar to those of other conditions. Also, there currently aren’t objective biomarkers that can be tested for when it comes to this condition. So it could be easy, when proper care isn’t taken, for a doctor to mistake another condition for MS.

When receiving a treatment that a doctor recommended, patients generally trust that the treatment is one that actually has the potential to help them with their particular medical condition. Unnecessary treatments can have negative consequences for patients, as some treatments can have risks associated with them that patients would be needlessly exposed to if they were given the treatment when it was not likely to have a positive effect. So, one would generally hope doctors would be taking evidence of effectiveness into account when deciding what treatments to recommend.

However, a recent article on the Washington Post’s website indicates that some treatments have remained common despite the fact that recent research had pointed to them not being as effective in as wide of range of circumstances as was initially thought. The three common treatments that the article identified as being in this category were:

• Back pain injections.
• Arthroscopic knee surgery.
• Stents.

This does not mean that these treatments are never the right ones for a patient, rather it raises the possibility that they are perhaps being used more often than is needed. So, when it comes to recommending these types of treatments, or any type of treatment for that matter, one would hope doctors would carefully think about whether the treatment is likely to have a positive impact on the patient given available evidence and the patient’s unique circumstances, rather than just relying on things like the treatment being a relatively common one.

Last time, we began looking at the positive trend of increasing transparency in the delivery of health care. There are a variety of positive changes that will come about as the result of increased transparency in health care, particularly when medical error ends up harming a patient. Unfortunately, in many cases, patients receive poor communication from providers and hospitals and are left to fall back on the legal process to protect their rights.

As we noted, health care providers and systems are the primary holders of information when a medical error occurs. This isn’t to say that every case of medical error will be documented, because that isn’t true. In cases where medical error is reported and documented, though, it is up to the patient to make use of the legal process to obtain the information he or she needs to build a sound medical malpractice case. 

When parents begin to notice developmental issues related to cerebral palsy, speaking to a lawyer sooner is better than later to ensure that parents understand the extent of the injury and their options for seeking appropriate compensation. Parents who notice developmental issues can have a medical evaluation done to determine cause of the problems. Medical evaluation of an infant is based on the so-called Apgar test, which evaluates an infant’s appearance, pulse, grimace, activity and respiration.

We don’t need to debate the merits of a for-profit medical system today, other than to say that that’s exactly what we have in this country right now. As a result, the profit drives all of the decision making, and that can lead to some horrible mistakes or some sub-standard care for patients who are just innocently trying to take care of themselves.

Whether you approve of the current system or not isn’t the point. The point is that we all have an expectation that our doctors, hospitals and medical personnel will make the best decisions for us regarding our care and health. When a mistake is made or a medical error causes us harm, then we need to consider our next legal steps.

There are a lot of procedural elements that you need to follow in order to ensure you are doing things the right way prior to filing a medical malpractice lawsuit. You need to support your claims and get medical evidence that shows why someone provided substandard care to you, or why the medical error happened and how it caused you harm.

In our previous post, we looked at the VA’s recent admission that it failed to provide qualified professionals to conduct proper screening for traumatic brain injury on thousands of patients. As we noted, such a failure would ordinarily be considered grounds for liability were it not for the fact that medical professionals working for a government institution are immune from personal liability for negligence.

Under the Federal Tort Claims Act, federally supported health centers, their employees and eligible contractors are considered immune from lawsuits and the Federal government acts as their insurer. This means that those who are treated at health centers funded by the Health Center Program are unable to sue individual physicians and staff members, or the institutions, for medical malpractice or medical negligence. 

Immunity only applies, though, when the employees are acting within the scope of their employment. The scope of employment rule would exclude actions taken by federal health care employees which are clearly not part of their job duties. Typically, though, this will not be a major issue in FTCA litigation.

In a prior post, we highlighted the prospective success of safe harbor provisions, which essentially protect physicians who want to give alternative recommendations when medical procedures don’t go as planned. These provisions are envisioned as a way to improve health care; which in turn, may limit medical malpractice lawsuits.

However, there are also apology laws that encourage physicians to express regret and sympathy when patients are injured due to medical errors. Aside from giving an avenue to humanize doctors, it also appears that apology laws may help to resolve medical malpractice cases. 

According to a study produced by the American Urological Association, the mean litigation length was just over three years in states that had apology laws compared to 5.6 years in states without such laws. The goal behind these laws is to encourage apologies without the threat of litigation, as a physician’s expressions of regret or sympathy could be used in future litigation in New York.

With 12 months in a year, it can be difficult to keep up with the numerous causes that monthly awareness campaigns bring forward. Awareness causes, however, provide crucial opportunities for communities to become informed and take steps that might save lives. 

The month of May boasts various awareness campaigns. This is one of two posts that will outline one of just a couple of health conditions that threaten the quality of life of so many people in New York and beyond. Let’s discuss mental health awareness.

The National Alliance of Mental Illness warns that mental illness can be hard to identify and, therefore, to diagnose. Medical care providers might not initiate conversations about mental health conditions unless a patient brings up their concerns. The following are some  symptoms that should prompt an important conversation with a doctor:

It may seem as though you have an obvious, “slam dunk” case when you are affected by a medical mistake, but even if you bring legal action against a doctor, institution or both, you will have to prove your case. And the doctor and/or institution will build their own defense to the case.

With that in mind, it is imperative to understand what kind of defense tactics the doctor and/or institution will utilize in a medical malpractice case.

First of all, every case is different, and every state is different. Understanding how the medical malpractice laws apply in your state is critical to building your case — and to prepare for the defense.

A new report released in the journal BMJ concludes two very frightening aspects of medical errors. The first is that there may be many more medical errors that actually occur then we are aware of. And the second is that the number of medical errors that occur in the United States ranks them as the third leading cause of death in the U.S. behind only heart disease and cancer.

The report went into a little more detail. The researchers estimated that more than 251,000 deaths per year in the U.S. are related to medical errors. That far exceeds an oft-cited study from 1999 which estimated that somewhere between 44,000-98,000 people die every year as a result of a medical error. Subsequent studies, though, have shown increasing predictions for the number of deaths related to medical errors.

The report also criticized death certificates because they don’t ask for enough data — and that, researchers believe, may be leading to fewer medical errors being reported than are actually occurring.

In our last post, we began looking at the issue of medication errors, particularly the fact that the electronic systems used by physicians in many hospitals allow a significant number of potentially harmful errors to go undetected. As we noted, not every medication error results in harm to a patient. In many cases, the error is inconsequential or has a minimal impact on the patient. In some cases, though, medication errors can have more serious consequences.

Medication errors can take various forms. An obvious mistake is for a provider to make an incorrect drug selection, but it can also occur that the drug is not administered at the correct time, is administered incorrectly, or that an expired drug is administered. Errors may also occur in reviewing a prescribed drug regimen for appropriateness. 

Depending on the type of error in question, there can be a variety of causes for medication errors. According to the American Society of Health-System Pharmacists, common causes of medication errors include poor physician handwriting, improper transcription of prescription, confusion about drug nomenclature, and inaccurate calculation of drug dosage. Failure of electronic health records systems can, as we’ve noted, also be a cause of medication errors as well. Physicians are not the only possible liable party, either. Other medical staff, including pharmacists, can make errors with medications which end up negatively impacting a patient.