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A recent BMJ (British Medical Journal) study listed medical errors as the third leading cause of death in the United States. The BMJ recommends that healthcare providers make prevention of patient harm the top healthcare priority and institute policy and procedure changes directed toward that objective.

The study points out that the medical cause of an injury or death on the death certificate doesn’t reflect that “communication breakdowns, diagnostic errors, poor judgment, and inadequate skill can directly result in patient harm and death.”

Continue Reading Preventing Harm to Patients should be Priority #1 for Healthcare Providers

For those unaware, a “hospitalist” is a physician who works exclusively in a hospital setting and specializes in Hospital Medicine. Most commonly, hospitalists undergo residency training in Internal Medicine or Family Medicine and, therefore, have education and training similar to doctors practicing as primary care physicians or family doctors.

However, some hospitalists have training in other medical specialties, and some hospitalists do undergo hospital-focused post-residency training, such as a fellowship in Hospital Medicine. Because they work in hospital settings, hospitalists frequently have to manage acutely ill and hospitalized patients. Often their role involves coordinating the treatment of the various physician specialists involved in a patient’s care while they are hospitalized. A hospitalist, in a sense, can serve as a patient’s primary care physician while the patient is in the hospital.

Continue Reading Understanding Hospitalist Malpractice Claims

The Pennsylvania Peer Review Protection Act, 63 P.S. § 425.1 et seq., is a statute that, among other things, prohibits the proceedings and records of an internal review committee convened to evaluate the quality of care provided by a health care provider(s) from disclosure. In essence, the purpose of this portion of the Act is to allow health care organizations to perform honest, critical analysis of their health care providers, without fear that the contents of their review will become public or be used against them in a medical malpractice lawsuit.

The confidentiality provision of the Peer Review Protection Act is frequently used by hospitals, physicians, and health care organizations to prevent internal records from disclosure in malpractice litigation. In practice, this confidentiality provision is often employed more broadly than the statute permits, and is used to justify the withholding of internal records and documents that were not truly created as part of any internal peer review process.

Continue Reading Peer Review Protection Act Does Not Shield All Internal Hospital Documents

Consider the following scenario: A patient is given pain medication in a hospital emergency room which impairs the ability to operate a motor vehicle. The doctor who administers the medication discharges the patient from the hospital without advising her not to drive while on the medication. On the way home from the hospital, the patient, still under the influence of the pain medication, veers into opposing traffic, causing an accident. Can an individual injured in that motor vehicle accident sue the doctor at the hospital who administered pain medication without informing the patient not to drive? The New York Court of Appeals recently said yes.

The above fact pattern is precisely what occurred in Davis v. South Nassau Communities Hospital. Lorraine Walsh presented to the South Nassau Communities Hospital emergency room on March 4, 2009 with stomach pain. A doctor there gave her a heavy pain medication, Dilaudid, and then discharged her home a short time later.

The doctor never warned Ms. Walsh that Dilaudid could impair her ability to drive. Ms. Walsh drove herself home from the hospital. On her way, she crossed into oncoming traffic, striking a vehicle being driven by Edward Davis. Mr. Davis suffered injuries in the accident. He then sued the hospital and physician for medical malpractice, alleging that the hospital and doctor were negligent in failing to warn Ms. Walsh of the danger involved in driving while under the influence of Dilaudid.

Continue Reading Can an Injured Third Party Sue a Hospital for Medical Malpractice?

According to the New York City Comptroller’s Office, the number of medical malpractice claims filed against City-owned hospitals increased in the 2015 fiscal year. This is a significant development. Available data shows that, until 2013, medical malpractice payouts had not increased nationally since 2003.

According to data compiled by Diederich Healthcare, a medical liability insurance and consulting company, which was based on records from the National Practitioner Data Bank, a clearinghouse of medical malpractice information, medical malpractice payouts rose nationally by 4.7% in 2013. This was the first time medical malpractice payouts had increased in 10 years. According to Diederich, total payout amounts again in increased in 2014 – by 4.4%. In 2014, more money was paid out on medical malpractice claims per capita in New York than any other state. This was followed by New Jersey and Pennsylvania.

Now, based on information provided by the New York City Comptroller’s Office, the number of medical malpractice claims filed against City-owned hospitals increased in fiscal year 2015, from 495 in fiscal year 2013, to 521 in fiscal year 2015. New York City has 11 public hospitals, which are operated by the City Health and Hospitals Corporation. It is the largest municipal healthcare system in the country. Because of its sheer size, and the number of patients it serves, an increase in the number of medical malpractice claims filed against its hospitals is an important statistic.

Continue Reading Med Mal Claims at NYC-owned Hospitals Increase

For those unaware, hospital “privileges” permit a doctor, who is not an employee of the hospital in question, to practice medicine within that hospital. Depending on the specific nature of the privileges, a doctor may be permitted to admit patients to the hospital, to see and treat patients in the hospital, or to perform surgery at the hospital.

A doctor seeking privileges at a particular hospital must first go through a credentialing process before any privileges are granted. The process typically involves the hospital reviewing and verifying the doctor’s credentials and competence. In addition, the hospital may look at a doctor’s education, training, license, board certification, work history, malpractice history, and/or criminal background before finally granting any privileges.

One topic that has arisen across the country concerns the question of whether a hospital can be sued for negligently granting privileges. Often referred to as a “negligent credentialing” claim, this cause of action essentially alleges that the hospital was negligent in granting privileges to a doctor who should not have been privileged in the first place, because of a lack of competence, training, or some other factor. In Pennsylvania, this legal theory falls under the hospital Corporate Negligence Doctrine.

Continue Reading Can Hospitals Be Sued for Negligently Granted Privileges?

In Georgia, by statute, a plaintiff must prove gross negligence, rather than just ordinary negligence, in order to prevail in a medical malpractice case alleging negligence in a hospital Emergency Room. Gross negligence is a higher standard than ordinary medical negligence, making it more difficult for a plaintiff to establish and, therefore, prevail in their case.

In Pennsylvania, medical negligence is established where a medical professional has deviated from or breached the applicable medical standard of care. The standard of care that applies to a particular medical decision or procedure must be established by experts who practice in the applicable medical specialty. For example, if the claim is that a radiologist delayed the diagnosis and treatment of a patient’s cancer by failing to properly interpret a finding on a CT scan, the plaintiff must present testimony from an expert radiologist as to what the standard of care required of the defendant radiologist under the circumstances. If the defendant radiologist failed to meet, or deviated from, that standard of care, he would have committed medical malpractice and will be liable to the plaintiff if it is proven that his medical negligence caused, or increased the risk of, harm to the plaintiff.

Gross negligence, on the other hand, requires something more; the plaintiff must prove that the defendant grossly deviated from the applicable standard of care. Again, this is a much higher burden for the plaintiff.

The George ER law states that the gross negligence standard applies to “emergency medical care in a hospital emergency department.” Therefore, the fact that the care occurred in the ER alone, does not trigger the use of the higher standard – the care must also be of an emergent nature. In other words, non emergency care that happens to occur in the ER, would not be subject to the gross negligence standard. If you presented to a Georgia ER with common-cold like symptoms that did not require emergency treatment, any care you received in that ER would not be subject to the gross negligence standard.

Recently, the Georgia Supreme Court unanimously decided that, when determining whether “emergency medical care” was involved, and therefore the ER gross negligence standard applies, an objective test must be applied. This means, simply, that it does not matter what the medical providers involved were thinking or intending at the time the treatment was rendered; their subjective belief about the kind of care they were providing is irrelevant. What matters, the Georgia Supreme Court explained, is the patient’s medical symptoms and whether they warranted emergency services.

The question of whether a slip and fall that occurs within a hospital constitutes medical malpractice, rather than ordinary negligence, has been a much debated topic and one I have written about in depth before (See Professional vs. Ordinary Negligence in the Health Care Setting: Is It Time for a Bright Line Test? Medical Malpractice Law & Strategy. July, 2011). The distinction is important because, in Pennsylvania and other states, there are a number of procedural hurdles—which do not apply to an ordinary negligence case—a plaintiff must first tackle in order to successfully file and pursue a medical malpractice case. Whether a case is classified as medical malpractice or general negligence can have a substantial impact on the cost of litigation and strategy needed.

There has been some inconsistency in determinations among Pennsylvania courts, as well as courts in other states, on this issue. This makes it very difficult to determine or predict whether a hospital fall case will be deemed a medical malpractice and, therefore, subject to the medical malpractice procedural requirements.

In Texas, which has tough medical malpractice requirements similar to those in Pennsylvania, doctors and hospitals have historically tried to use those requirements to have premises liability—otherwise referred to as “slip and fall”—cases which occurred in hospitals dismissed on procedural grounds. Recently, however, the Texas Supreme Court effectively put a stop to this.

Continue Reading Do Hospital Falls Equal Medical Malpractice?

UPDATE – Since I originally wrote this piece, the defendant in this case filed a motion for reconsideration and, in June, the Court granted that motion, ultimately reversing the previous decision regarding the sentinel event report. Continue to visit our blog for further updates on the developing law regarding the discoverability of JCHAO sentinel event reports, as well as other issues in Pennsylvania medical malpractice law.

In a case of first impression, the Lackawanna County Court of Common Pleas has ruled that a hospital’s Sentinel Event Report to the Joint Commission on Hospital Accreditation (JACHO) is not privileged and must be produced in litigation.

JACHO is a private, independent, non-profit organization that evaluates and accredits hospitals and healthcare organizations throughout the country. One of the things JACHO does is investigate and analyze “sentinel events.” Sentinel events are incidents involving patients, unrelated to the patient’s normal hospital course and treatment, which result in death or serious harm to the patient. Some of the more common “sentinel events” are surgical materials or devices retained or left behind inside patients, falls that occur at hospitals and hospital-acquired infections. When sentinel events occur, JACHO-accredited hospitals report them to JACHO by way of a Sentinel Event Report. JACHO analyzes the events and then works with the hospital to help them learn from the events and improve patient safety moving forward.

Continue Reading Court Rules that Sentinel Event Report to JCHAO is not Privileged

In my blog post from January, I discussed the surgical “black box,” a device developed by researchers at the University of Toronto that would track a surgeon’s actions during surgery and record any errors. The purpose of the device would be to collect data during surgery that could later help shed light on why a patient had a poor surgical outcome and allow researchers to analyze why surgical errors occur in an effort to prevent future mistakes.

In this same vein, a lawmaker in Wisconsin, Rep. Christine Sinicki (D-Milwaukee), has now introduced legislation that would permit patients to have their surgeries audiovisually recorded. According to an article from the Milwaukee-Wisconsin Journal Sentinel, if passed, the bill would require healthcare facilities to give surgical patients the option of having their surgery videotaped.

The bill would also allow patients to execute advance directives indicating that they wished to have all of their surgeries recorded. The law would be named for Julie Ayer Ribenzer, a 38-year-old woman who died after receiving too much of the anesthetic propofol during a breast implant surgery. The Wisconsin bill is similar to a proposed New York bill, “Raina’s Law”, named for 19-year old Raina Ferraro who went into cardiac and respiratory arrest due to negligent anesthesia administration during surgery, which sought to require cameras in all operating rooms.

Surgical errors are all too common. Often times, these errors lead to catastrophic injuries and even death. Surgical black boxes, and the proposed Wisconsin and New York laws, may reflect a growing public concern that surgical errors are not being disclosed and that doctors and hospitals are not taking responsibility when errors occur. Sometimes, however, it simply may not be clear why a patient had a poor surgical outcome.

It would seem that allowing audiovisual recording in operating rooms would, if nothing else, provide additional data to help medical providers, as well as patients and their families, understand why something went wrong. But, doctors and hospitals don’t seem to agree. The Wisconsin Hospital Association and Wisconsin Medical Society have both indicated that they would be opposed to Rep. Sinicki’s bill. Some doctors have also shown resistance to bringing black boxes into operating rooms, out of concern that the recordings and data could later be used against them in a legal matter.

The topic of recording surgery is becoming ever more common. It may very well be the case that this is the future of medical malpractice investigation and medical error prevention.