Transforming Medical Malpractice With Technological Discovery

The Legal Intelligencer
April 11, 2017

Medical malpractice cases need to be investigated like a medical examination; one that includes the taking of current complaints, a medical history, a physical examination and a differential diagnosis. Since the medical field is in flux, the attorney must appreciate that medicine is changing through technological innovation, instant communication and electronic health record implementation.

For the start of our legal examination, we must understand the current complaint: medical errors. Medical error is the third leading cause of death in the United States. Deaths from medical errors are almost eight times greater than deaths from firearms. This numeric does not even include catastrophic injuries or life-long debilitations. Errors occur despite significant technological advancements; such as: robotic surgery, drug interaction websites, journal article search engines, electronic health recording systems, uniform DICOM viewers, mobile access and remote surgeries. It seems that these advancements have led to a decrease in communication among medical providers, an increase in active cases assigned to busy practitioners and an over-reliance on technology to solve problems.

Taking a case’s history requires knowing the laws requiring electronic health records and their mandatory recording of events. When the Health Information Technology for Economic and Clinical Health Act (HITECH), within the larger American Recovery and Reinvestment Act of 2009 (ARRA), and the Patient Protection and Affordable Care Act (PPACA) were placed into effect, it led to the implementation of electronic health records (EHR) across the country. Further, medical software began to hold strict legal requirements. And their implementation was expedited. The HITECH Act set 2014 as the date when an electronic health records would be created for each person in the United States. That time has passed and the clear majority of medical practices have been transitioned to the new world of electronic documentation.

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GOP Again Proposes Malpractice Tort Reform, With a Twist

February 28, 2017

Over the past 20 years, House Republicans repeatedly have passed malpractice tort reform that caps noneconomic damages at $250,000, only to be stymied by Senate Democrats who view such measures as an intrusion on a plaintiff’s right to his or her day in court.

Today, the Republican-controlled House Judiciary Committee narrowly approved another such medical liability bill, but one with a twist. The reforms would apply to malpractice suits in which the plaintiff received healthcare covered through a federal program, subsidy, or tax benefit. In other words, healthcare provided under Medicare, Medicaid, or private health plans subsidized by the Affordable Care Act.

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Florida Justices Rule Medical Documents Must Be Disclosed

The Ledger
January 31, 2017

In a ruling that could have implications for medical-malpractice cases across the state, the Florida Supreme Court on Tuesday said a Jacksonville hospital system was required to provide records to a patient’s family because of a 2004 constitutional amendment.

The 5-2 ruling overturned a decision by the 1st District Court of Appeal, which said a federal patient-safety law shielded the hospital system from having to turn over some documents in a malpractice lawsuit. The ruling stemmed from a voter-approved ballot initiative, known as Amendment 7, that was designed to expand access to records in malpractice cases.

“The federal act was intended by Congress to improve the overall health care in this system, not to act as a shield to providers, thereby dismantling an important right afforded to Florida citizens through Amendment 7,” said the majority opinion, written by Justice Barbara Pariente and joined by Chief Justice Jorge Labarga, justices R. Fred Lewis and Peggy Quince and Senior Justice James E.C. Perry. “Moreover, health care providers should not be able to unilaterally decide which documents will be discoverable and which will not in medical malpractice cases.”

But Justice Charles Canady, in a dissenting opinion joined by Justice Ricky Polston, wrote that the Supreme Court should not have ruled in the case. That is because the family of patient Marie Charles and Southern Baptist Hospital of Florida, Inc., which does business as the Baptist Health hospitals, reached a settlement on the eve of Supreme Court arguments in October.

“The decision of the majority here, which can have no impact on this settled case, is a purely advisory opinion,” Canady wrote. “Our job is to decide live controversies presented by the parties to a case that is before us. It is not to opine on the issues in a case that has been settled and that the parties have agreed should be dismissed.”

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Stronger Malpractice Laws May Not Prevent Surgical Complications

January 17, 2017

More aggressive malpractice climates don’t necessarily protect patients from surgical complications, a new study suggests

Supporters of medical malpractice laws that make it easier for patients to sue doctors say these protections are necessary to improve care. But in the current study, the risk of litigation didn’t translate into better outcomes, said study leader Dr. Karl Bilimoria, director of the Surgical Outcomes and Quality Improvement Center at Northwestern University’s Feinberg School of Medicine in Chicago.

“It doesn’t really work – malpractice environment doesn’t influence doctors to provide better care,” Bilimoria said by email. “Rather, it may lead to defensive medicine practices where more tests and treatments are ordered unnecessarily just to try to minimize malpractice risk.”

Bilimoria and colleagues examined state-specific data on medical malpractice insurance premiums, average award size and the number of claims for every 100 physicians in each state as of 2010.

They also examined 2010 data on the odds of death, complications or repeat operations within 30 days surgery for patients insured by fee-for-service Medicare, the U.S. health program for the elderly and disabled.

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Malpractice cases against evil Detroit doc settled for $8M

Insurance Journal, July 22, 2016

Patients who filed medical malpractice claims against Detroit-area oncologist Farid Fata and three Michigan hospitals will receive settlements totaling $8 million.

The settlements were approved July 20 in Oakland County Circuit Court. They will be distributed by an arbitrator later this year to about 40 people.

Fata is serving a 45-year federal prison sentence for intentionally misdiagnosing or mistreating patients. Many patients were told they had cancer and went through excessive chemotherapy. He was paid millions of dollars by insurance companies.

Fata pleaded guilty in 2014 to fraud, money laundering and conspiracy. His assets were to be liquidated.

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Malpractice laws in Wisconsin make things even harder for victims

TMJ4, July 9, 2016

Seven hundred deaths a day from medical mistakes. New research shows that’s how many Americans are dying due to medical errors.  The I-Team looked into malpractice deaths in Wisconsin and talked to victims who say state laws make it nearly impossible to right the wrongdoing.

According to new research led by Johns Hopkins, medical errors claim more than 251,000 lives a year, making it the third leading cause of death behind heart disease and cancer.  And if medical malpractice happens in Wisconsin, many people affected are blocked from seeking justice because of laws and court rulings.

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Military courts provide little help to medical malpractice victims

Military Times, July 10, 2016

Rebekah Moani Daniel arrived at Naval Hospital Bremerton in Washington state with her husband, Walter Daniel, on March 8, 2013, to bring the couple’s new baby into the world. And at 3:38 p.m. the following day, she did just that, giving birth to a healthy daughter, Victoria, in what seemed to be a nearly textbook delivery.

A labor and delivery nurse at Bremerton, Daniel was surrounded by trusted co-workers, so when she began bleeding profusely, her cadre jumped to, immediately administering drugs to stanch the flow.

But the postpartum hemorrhaging didn’t ebb. And from there, the response devolved. According to court documents, stronger drugs were administered but failed. A balloon device that could have halted the bleeding was employed too late. Within two hours of giving birth, Daniel had lost about 1-1/2 quarts of blood — three times the average during birth and about one-third the body’s volume.

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PA mom sues hospital over son’s brain injury

Times Leader, July 5, 2016

An Avoca mother will take to trial next week a lawsuit alleging a local hospital and its staff in 1997 failed to diagnose symptoms that led her 10-month-old son to suffer permanent brain damage.

Due to the alleged negligence, Christopher Hufford, now 20, developed meningitis and suffered “catastrophic” injuries that rendered him the neurological equivalent of a 5-year-old, according to the complaint, filed in 2013 by Hufford’s mother, Jackie Hufford, of Davidson Street.

The lawsuit seeks unspecified monetary damages.

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Joan Rivers daughter discusses mother’s death, malpractice case

Fox News Business, June 28, 2016

Rivers’ family filed a medical malpractice lawsuit against Yorkville Endoscopy and the assorted doctors and corporate entities associated with the outpatient clinic.

An investigation revealed substantial violations and the case was settled out of court, with the doctors not disputing the findings.

“I feel that’s about as close as I’m going to get to [them] accepting responsibility for their behavior,” Rivers said.

She added that following her mother’s death, she is advocating for “Joan’s Law,” proposed legislation that would mean stricter regulation and oversight for clinic…

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NY legislature again fails to help victims of medical malpractice, June 20, 2016

The New York state Senate and Assembly brought their current legislative sessions to an end early Saturday morning. There was at least one piece of proposed legislation that wasn’t taken to a vote, making it the second year in a row that this particular bill has died in the state legislature. The bill, known as Lavern’s Law, would change the way medical malpractice cases are handled. Instead, NY once again turned its back on medical malpractice victims.

The bill in question is known as Lavern’s Law, so named after Lavern Wilkinson. Ms. Wilkinson died in 2013 at 41. The Brooklyn-based mother left her then-15-year-old daughter, an autistic girl needing 24/7 care, without a parent. Micalia, Ms. Wilkinson’s daughter is now 18 and is cared for by her aunt, Gloria O’Connor. Ms. Wilkinson died from a curable type of lung cancer due to a misdiagnosis by doctors at Kings County Hospital.

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