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

In 2013, the Pennsylvania legislature passed “The Benevolent Gesture Medical Professional Liability Act”, which is colloquially referred to as “The Apology Law”.  This statute allows a health care provider to apologize to a patient for a mistake or perceived mistake, or a bad outcome, without fear that the apology will be used against the health care provider in a medical malpractice lawsuit.  As long as the apology or benevolent gesture is not made after the lawsuit has been filed, or the apology is not also a statement of negligence or fault, it cannot be later used against the health care provider, in a court of law.

One of the intended results of the law was to lower the number of medical malpractice lawsuits filed, however, it has had little or any effect with regard to this statistic so far.

Not every complication which occurs during or as a result of surgery is actionable under the law.  Some complications are foreseeable and a risk of certain procedures. In addition, just because a surgery is unsuccessful does not mean that a surgeon was negligent.  However, many complications are the result of a preventable mistake, and if the patient has a complicated or prolonged recovery and requires subsequent surgeries to correct the mistake, that person may have a viable medical malpractice case.

Here are a few surgical errors that may be considered malpractice and should be investigated by a lawyer specializing in medical malpractice litigation.

  • Surgical Equipment Left Behind:  If a surgeon leaves behind a clip, a clamp, a needle, or even something larger, such as a hemostat or tweezers, that surgeon has been negligent.  If an infection results and/or subsequent surgery must be performed to remove the object, and there are sufficient damages, it may be worth investigating this claim.
  • Wrong Organ Removed:  If, for whatever reason, a surgeon removes the wrong organ or limb from the wrong side of the body, this is clearly negligence which should be investigated.
  • Organ and/or Tissue Damage:  Some tissue damage during surgery may be acceptable or necessary but if a surgeon accidentally cuts or damages an organ, or tissue, or a nerve, and this mistake results in substantial impairment to the patient, the surgery should be investigated

If you or a loved one has been injured due to a complication or mistake, contact Stark & Stark today for a free consultation.

A new Massachusetts law has created a procedure designed to encourage early resolution of medical malpractice claims and avoid litigation.  For the most part, in Pennsylvania and elsewhere, medical malpractice claims are adjudicated through the courts.  Unlike other types of personal injury claims, where a significant percentage of cases settle before a lawsuit is actually filed, nearly all medical malpractice cases end up in litigation.  Under the new Massachusetts law, anyone who intends to sue a healthcare provider must give the provider six months notice of their intuition to file a lawsuit.  The idea is that this six-month period allows the healthcare provider the opportunity to investigate the claim and, if it has merit, negotiate a resolution.

In addition to the six-month waiting period, the law requires healthcare providers to inform patients when medical mistakes are made, and also incorporates an “apology law” which is similar to the Pennsylvania Benevolent Gesture Law that was recently signed into law.  Like the Pennsylvania statute, the apology law allows healthcare providers to apologize for medical mistakes without having their words used against them in a subsequently medical malpractice case.

As I have discussed often in this space, states have taken a number of different approaches to limit, if not eliminate, the filing of frivolous medical malpractice claims and/to encourage the early resolution of such claims.  The recent trend seems to be some variation of the waiting period Massachusetts has decided to employ.  For example, in Oregon, the legislature has created a forum in which healthcare providers and patients can attempt to amicably resolve medical malpractice claims outside of the court system.  Under that program, when a patient believes they have been the victim of medical malpractice, they have the option of holding a discussion with the doctor or other healthcare provider they believe has injured them.  The conversation is completely confidential, and the parties have the option of having a mediator present.  As with the Massachusetts law, the goal is to encourage early resolution of claims outside of the court system.

While Pennsylvania has enacted certain procedural mechanisms that have been very effective at limiting the filing of frivolous medical malpractice claims, they have yet to adopt any sort of formal program that would facilitate pre-suit settlement of such claims.  However, at least in my own practice, I have seen an increase in the desire of healthcare providers and their liability insurance carriers to discuss pre-suit settlement.  Perhaps Pennsylvania, like other states, will at some point take the step of endorsing and formalizing this process.

 

Generally, physicians and their liability insurance carriers are required to report all medical malpractice payments to the National Practitioner Data Bank.  Due to a legal loophole that exists in certain states, however, doctors and their insurance companies have be able to avoid reporting medical malpractice settlements that result from a mediation process.  In effort to close this loophole, U.S. Department of Health and Human Services Secretary Kathleen Sebelius recently signed a decision memorandum requiring doctors and medical liability insurance companies to report all medical malpractice payments made by or on behalf health care providers if even they are the result of a state-approved mediation process.

If you believe that you or a loved one has been the victim of medical malpractice, contact the experienced medical malpractice attorneys at Stark & Stark for a free consultation.

Before a doctor performs any type of medical procedure, they must obtain the patient’s “informed consent” to do so.  In general, this means that the patient must be provided with all potential risks, side effects and alternatives to the procedure, so that they can make an educated decision about whether or not to go through with the procedure.  Pennsylvania courts have long recognized this requirement and have even held that a physician’s failure to obtain a patient’s informed consent before performing a surgery or procedure may amount not only to negligence, but to a battery. 

Recently, the Pennsylvania Supreme Court agreed to consider whether the fact that a physician obtained informed consent may be used by that physician as a defense to a medical malpractice claim.  In Brady v. Urbas, the plaintiff underwent surgery on a toe which, she alleged, failed to correct her problem and required her to undergo multiple subsequent surgeries.  As part of his defense, the doctor in essence sought to argue that the plaintiff was aware of the risks associated with the surgery, and the fact that the surgery did not provide the desired outcome did not mean the doctor was necessarily negligent.  The trial court allowed this evidence.  The court permitted the defendant to reference the plaintiff’s knowledge of the risks of the procedure at trial, and also allowed informed consent forms signed by the plaintiff to be examined by the jury.  The jury returned a verdict in favor of the defendant doctor.  On appeal, the Superior Court overturned that verdict, concluding that informed consent evidence is irrelevant in a medical malpractice case.  The Supreme Court has now agreed to review the case to determine whether evidence of a patient’s informed consent should be permitted in medical malpractice cases moving forward.

Regardless of how the court comes down on this question, the fact remains that a doctor is required to obtain a patient’s informed consent before performing any medical or surgical procedure.  When a doctor fails to do so, and the patient suffers an adverse outcome as a result, the patient may be able to bring claims against that doctor.  It is important to know that, simply because you may have signed an informed consent form prior to undergoing a procedure, does not automatically mean you provided informed consent under the law.  If you believe that you or a loved one has suffered a bad outcome from a medical procedure for which they did not provide informed consent, contact the experienced medical malpractice attorneys at Stark & Stark today for a free consultation.

The Medical Care Availability and Reduction of Error (or “MCARE”) Act Statute of Repose is a topic that has been previously discussed in this space. Statutes of Repose are similar to statutes of limitations. They provide a date or time frame by which a lawsuit must be filed. However, they are stricter than statutes of limitations. Once a statute of repose has expired, the legal cause of action actually ceases to exist. The MCARE Statue of Repose, which applies to medical malpractice cases, provides:

1. Unless the claim relates to leaving a foreign object inside an individual’s body, no claim for medical malpractice may be filed after 7 years from the date of the alleged negligence.

2. No claim for medical malpractice on behalf of a minor may be filed after 7 years from the date of the alleged negligence or after the minor reaches 20 years of age, whichever is later.

3. A claim for wrongful death or survival (claims brought on behalf of a deceased person) must be filed within two years of the deceased person’s death unless the cause of death was fraudulently concealed.

Recently, the Pennsylvania Superior Court clarified that the MCARE Statute of Repose does not act to bar a plaintiff’s medical malpractice claim where the claim arose prior to the statute’s 2002 effective date.

If you believe that you or a loved one has been the victim of medical malpractice, contact the medical malpractice attorney at Stark & Stark for a free consultation.
 

<span
lang=EN-CA style=' Statutes of Repose are similar to statutes of
limitations.  They provide a date or time
frame by which a lawsuit must be filed. 
However, they are stricter than statutes of limitations.  Once a statute of repose has expired, the
legal cause of action actually ceases to exist. 
The MCARE Statue of Repose, which applies to medical malpractice cases,
provides:

            1.         Unless
the claim relates to leaving a foreign object inside an individual’s body, no
claim for medical malpractice may be filed after 7 years from the date of the
alleged negligence.

            2.         No
claim for medical malpractice on behalf of a minor may be filed after 7 years
from the date of the alleged negligence or after the minor reaches 20 years of
age, whichever is later.

3.         A claim for wrongful death or survival
(claims brought on behalf of a deceased person) must be filed within two years
of the deceased person’s death unless the cause of death was fraudulently
concealed.

Recently, the Pennsylvania Superior Court clarified that the
MCARE Statute of Repose does not act to bar a plaintiff’s medical malpractice
claim where the claim arose prior to the statute’s 2002 effective date. 

If you believe that you or a loved one has been the victim
of medical malpractice, contact the medical malpractice attorney at Stark &
Stark for a free consultation.

–>

<span
lang=EN-CA style=' Statutes of Repose are similar to statutes of
limitations.  They provide a date or time
frame by which a lawsuit must be filed. 
However, they are stricter than statutes of limitations.  Once a statute of repose has expired, the
legal cause of action actually ceases to exist. 
The MCARE Statue of Repose, which applies to medical malpractice cases,
provides:

            1.         Unless
the claim relates to leaving a foreign object inside an individual’s body, no
claim for medical malpractice may be filed after 7 years from the date of the
alleged negligence.

            2.         No
claim for medical malpractice on behalf of a minor may be filed after 7 years
from the date of the alleged negligence or after the minor reaches 20 years of
age, whichever is later.

3.         A claim for wrongful death or survival
(claims brought on behalf of a deceased person) must be filed within two years
of the deceased person’s death unless the cause of death was fraudulently
concealed.

Recently, the Pennsylvania Superior Court clarified that the
MCARE Statute of Repose does not act to bar a plaintiff’s medical malpractice
claim where the claim arose prior to the statute’s 2002 effective date. 

If you believe that you or a loved one has been the victim
of medical malpractice, contact the medical malpractice attorney at Stark &
Stark for a free consultation.

–>

The Pennsylvania Supreme Court reviewed a jury instruction in a medical malpractice trial and concluded that the trial judge improperly advised the jury regarding the standard to apply for a doctor whose alleged negligence led to the death of the plaintiffs’ child. 
 
During trial regarding the actions of Dr. Rowena Grumbine, the judge issued a set of jury instructions that included the following: "Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it’s proven that an error of judgment was the result of negligence.”
 
The Supreme Court ruled, citing a lower court’s review of records that the phrase "errors of judgment" is needlessly confusing, especially considering alternatives that are based on the key issue of whether or not a doctor or other medical professional provided the standard of care that a reasonable practitioner in the same field would use in treating a patient.
 
Further, the majority opinion noted that the Error of Judgment Rule "wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment. This is simply untrue,  and it wrongly injects a subjective element into the jury’s deliberations. The standard of care for physicians in Pennsylvania is objective in nature, as it centers on the knowledge, skill, and care normally possessed and exercised in the medical profession."
 
If the Error of Judgment Rule charge is given to the jury, the jury would likely focus on the state of mind of the doctor which is was irrelevant to the issue of negligent care. 
 
You can find the Supreme Court opinion here.
 

A two Judge Panel of the Appellate Division on November 27, 2013 found that the Trial Court erred by disallowing plaintiff’s request to name a doctor as an additional party beyond the Statute of Limitations.   The Court followed the analysis of Lopez and its five factors and determined that in totality there was basis for the relief sought and plaintiff must be able to join this additional party.  

This matter involved the plaintiff claiming that she was not able to identify a particular doctor who participated in her hysterectomy procedure because the doctor was not specifically named on the Operative report and she had never received any billing/invoicing from this doctor and no other physician including the lead surgeon, Robert F. Mohr, M.D. advised plaintiff that this additional doctor was involved in providing her care and treatment.   Given the complications from the surgery and the ultimate claims against Dr. Mohr and others, it was learned through the discovery process that another physician took part in the surgery whose negligence may have been a substantial factor or contributed to the alleged malpractice and ensuing injuries.    The Trial Judge had acknowledged that when the Complaint was filed there was no indication there was an unidentifiable physician who may have had something to do with the case, but determined that the plaintiff, or her lawyers before the two year statute expired, could have looked further into the nursing entries which in passing only, mentioned this additional doctor.   A crux to the argument was that the Operative report’s omission of this doctor’s identity violated N.J.A.C. 13:35-6.5 and thus plaintiff was permitted to reasonably rely on the Operative Report as identifying those who were involved in the surgical procedures.  

This Panel of the Appellate Division reiterated the relevant factors for equitable tolling as set forth in the Lopez decision which include (1) the nature of the alleged injury; (2) the availability of witnesses and written evidence; (3) the length of time that has elapsed since the alleged wrongdoing; (4) whether the delay has been to any extent deliberate or intentional; and (5) whether the delay may be said to peculiarly or unusually prejudice the defendant.   See, Lopez v. Swyer, 62 N.J. 267 (1973).    

It was also determined to be significant that during the litigation itself the defendants had provided the plaintiff with Interrogatory answers that “masked the [third-party doctor’s] involvement”.   The Appellate Division was satisfied that the plaintiff and counsel acted with “prudence and reasonable diligence in pursuing a potential claim against the [third-party doctor] once it was learned of his involvement in the surgery at a 2012 deposition of Dr. Mohr.    The Appellate Division confirmed that plaintiff’s delay was neither deliberate nor intentional, but resulted from the highly unusual circumstances that were, in this instance, created solely by others.   

Diederich Healthcare, a medical liability insurance and consulting company, has performed a comprehensive analysis of medical malpractice payouts in 2013 based on records from the National Practitioner Data Bank.  The National Practitioner Data Bank is a clearinghouse of information regarding medical malpractice payments and other adverse actions taken against medical professionals.  According to Diederich, there was a 4.7% increase in malpractice payouts nationwide in 2013.  This is the first time medical malpractice payouts have increased since 2003.  Moreover, the total amount of malpractice payouts in 2013 was the highest it has been since 2009.  A total of $3,733,678,100 was paid out on medical malpractice claims in 2013.  This was $168 million more than was paid out in 2012.  In Pennsylvania specifically, there was an increase of $43 million in 2013, as compared to total malpractice payouts in 2012.  Also noteworthy, the number of payouts that resulted from judgments, as opposed to settlements, was down in 2013.  Only 3% percent of payouts were by way of judgment.  This was down from 5% in 2012.