Articles Posted in Medical Malpractice

Indeed, physicians have difficult jobs where there may be times where they must make split second decisions that can have critical implications on patients’ lives. This is why they go through extensive training in order to properly diagnose illnesses and injuries and to make care recommendations accordingly. Despite the difficult nature of their profession, doctors must use reasonable care when performing their duties.

However, in situations where doctors are acting as Good Samaritans in emergency situations, should they be held to the same standards? More importantly, should a patient injured by a doctor in this position be able to initiate a malpractice suit?

This is an important question given that doctors may have an ethical duty to assist members of the public in the event of an emergency. Nevertheless, Good Samaritans are protected in a number of situations under New York law, including where:

There is a notion in the medical community that over-testing and over-treatment of patients (i.e. defensive medicine) is practiced in order to limit the risk of future medical malpractice cases. While there may be some truth to this notion, a recent publication in The BMJ suggests that the overall culture in the medical community, as well as the attitudes among physicians may be more of a reason for defensive medicine than the specter of a medical malpractice claim.

Essentially, the culture of intolerance towards uncertainty and error among physicians themselves is the driver of over-testing and over-treatment. Doctors appear to perpetuate a culture where uncertainty in treatments is unacceptable; almost as if they have to be perfect with every diagnosis and recommendation for treatment. Indeed, there is an obvious incentive in being accurate, but when it deteriorates into medicine that does not focus on the best treatment for the patient, the culture behind it should be changed.

Because of this, two highly regarded professors argue that professional and public attitudes towards medical errors must be changed. This goes beyond medical malpractice reform, as the financial incentives presented to doctors along with the persistent marketing efforts to physicians create an increasing demand for testing and treatment.

Nearly a year after DePuy Orthopaedics settled what was one of the largest hip replacement recall lawsuits, it appears that another similar settlement is in the works. According to a recent New York Times report, Stryker, a Michigan based artificial hip implant provider, will settle the lawsuit against it brought by thousands of hip replacement patients that have experienced complications after using Stryker products.

Many patients who used the all-metal implants, which had become popular because of how durable they reportedly were, found that metal debris would come from the device’s ball and cup as the parts wore out, which would irritate the tissue surrounding the replacement hip. 

Manufacturers have a legal duty to ensure that the products they put on the market are safe for a consumer’s intended use. If the product turns out to be defective (either through design or the means in which it was built), a manufacturer could be held liable for injuries to consumers. Before they were recalled, all-metal devices accounted for nearly one in three of the estimated 250,000 hip replacement procedures performed in the United States.

Like the saying, “the person who represents himself in court has a fool for a client,” physicians are not immune from the type of foolishness that comes with avoiding their own advice. According a recent Time.com report, doctors are notorious for being the worst patients.  Specifically, doctors are known for partaking in the very unhealthy habits that they advise patients not to indulge in.

For example, there are physicians who smoke despite knowing that lung cancer is directly attributable to this habit; physicians who frequently eat fast food despite the health warnings and levels of obesity, and doctors who continue to use tanning salons in light of the skin cancer risks that come with it.

According to the Time.com report, it appears that doctors adopt the same thinking that supports many dangerous habits: “it won’t happen to me.” And when doctors do become ill, there is an undercover culture of self-medicating that can lead to inaccurate advice to patients. For instance, if a doctor is struggling with high cholesterol, he or she may be less likely to counsel a patient on the best ways to address the problem. The same could be said about doctors who abuse painkillers or smoke cigarettes.

In a prior post, we highlighted a trend in Philadelphia and its suburban counties of fewer medical malpractice claims being brought to trial and even fewer verdicts in favor of injured plaintiffs. The trend in Pennsylvania is an example of an overall trend in New York and across the nation. A recent Philly.com report examined this phenomenon, which led to the question: Are innocent medical malpractice victims being left uncompensated?

Currently, medical malpractice claims and payments have dropped in 31 states, including New York. This is arguably a result of improvements in medical care, particularly communication between staff members, but it is also attributable to tort reform efforts raised by state legislators and physicians’ rights organizations. The various new laws have resulted in damage caps that may prevent an injured person from realizing the full amount that they are entitled to.

Because of this, medical malpractice law firms must scrutinize cases much closer and decline those that are too much of a risk that they will not make money for the firm; even if the case in fact has merit. The results are startling.

The death of comic icon Joan Rivers is a harsh and tragic reminder that every medical procedure, no matter how routine, comes with its share of complications. Rivers passed away on September 4 after she went into cardiac arrest during a procedure on her vocal cords on August 28. An investigation is ongoing into the circumstances that led to her demise, but preliminary reports indicate that her air supply may have been cut off during the procedure. 

More disturbing elements were recently revealed. According to CNN.com, Rivers was scheduled to undergo an endoscopy on her vocal cords, but apparently her personal ear, nose and throat doctor performed a biopsy (that Rivers reportedly did not give her consent for). Even more troubling, the physician reportedly took a selfie of himself and Rivers while she was under anesthesia.

The clinic where the biopsy was reportedly performed recently released a statement denying that the procedure took place. It also announced that the physician who completed the endoscopy had resigned from the clinic. While there have been no formal allegations of wrongdoing and no discipline has been meted out, the events touch upon the propriety that doctors must act with when performing procedures on patients.

If you have heard commercials asking for women who have been injured through vaginal mesh implants to come forward, you are not alone. A woman in Texas who was harmed by such an implant was reportedly awarded $73 million, which included $23 million in compensatory damages and $50 million in punitive damages. In fact, according to a recent Bloomberg.com report, Boston Scientific, the maker of the Obtryx sling, is facing more than 12,000 lawsuits where women who used the product have complained of severe organ damage as the slings eroded within their bodies.

The damages obviously would lead to severe pains and additional surgical procedures, and could further lead to limitations on performing normal life activities. 

The U.S. Food and Drug Administration reportedly ordered Boston Scientific and a number of vaginal implant makers to study the rates of organ damage attributable to such products two years ago.

TV dramas about hospitals and emergency rooms are arguably about art imitating life. This means that some of the scenarios that shock us (and gain our empathy) actually are lived by real people. This also means that doctors who make mistakes may do so in real life. While they may happen in limited instances, the patients that are treated by irresponsible doctors are still at risk.

For instance, one doctor who was addicted to pain killers for years…all while treating patients…was highlighted on NBC’s “Today” show. The physician indicated that his habit was nearly 100 pills of Vicodin at its worst. He said that he has been clean for 10 years, but his past still scares him.

But this doctor is certainly not alone. It is reported that 100,000 doctors, which equates to nearly 1 in 10 doctors, is addicted to drugs or alcohol and are still treating patients. An investigative reporter for Today even found that some doctors are performing surgeries while under the influence; which can lead to disastrous results for patients.

Anyone who tells you about finding a doctor who’s right for you knows how difficult it can be.  Indeed, doctors are qualified to practice their respective crafts, but they may not have the bedside manner or the natural empathy that makes patients feel secure with their advice.

Also, not all doctors have a way of making clients feel valued, and more importantly, not all physicians follow the standards set forth by state law and professional guidelines. Further, patients may not be able to find helpful information about the doctor they are considering. As such, we feel that providing some guidelines would be helpful. 

Your doctor should stay abreast of the latest research – It should not be lost on patients to ask whether their physician is on top of the latest research, trends and topics that matter to you. After all, you want your doctor to be knowledgeable and skilled.

There is no doubt that the practice of medicine is stressful. There is immense pressure on getting it right, because failure could mean serious injuries or death. The overwhelming majority of doctors in upstate New York do take this responsibility seriously, but there are some doctors who are reckless or who let the pressure get to them. For the patients of these doctors, there is a real risk of medical malpractice.

Take one out-of-state doctor as an example. His alleged dependence on alcohol and drugs has had serious consequences. A number of his patients have been paralyzed with both paraplegia and quadriplegia. Many of them must now use wheelchairs because they can no longer walk. One man has even said that part of his spinal cord was removed in what should have been a simple back surgery.

This does not even cover the two patients who died after the surgeon operated on them.