Currently in Pennsylvania, a medical malpractice lawsuit may only be filed in the county where the alleged malpractice occurred. This more restrictive than the venue rule for other types of civil cases, which provides more flexibility and gives plaintiffs more control over where their lawsuit is filed.
The June 2017 issue of the American Journal of Infection Control included a report from the Children’s Hospital of Philadelphia (CHOP) which described 23 infants in their intensive care unit (ICU) who contracted eye infections after eye examinations. In the report, CHOP attributed the cause of the outbreak to some medical staff not wearing gloves, and a “lack of standard cleaning practices” of equipment used in the exams.
This outbreak occurred in August 2016, and a recent lawsuit has been filed on behalf of a family who alleges their premature baby died as a result of her contracted infection at CHOP in September 2016. The premature infant had been transferred to CHOP in July, and by mid-August had tested positive for infection with an adenovirus and was suffering from respiratory symptoms. She eventually developed a bacterial infection on top of the viral illness, and died on September 11, 2016.
“Telemedicine” or “Telehealth” are the terms most often used when referring to clinical diagnosis and monitoring that is delivered by technology. Telemedicine encompasses healthcare provided via real time two-way video conferencing; file sharing, including transmission of health history, x-rays, films, or photos; remote patient monitoring; and consumer mobile health apps on smart phones, tablets, and devices that collect data and transmit it to a healthcare provider. Telemedicine is increasingly being used for everything from diagnosing common viruses to monitoring patients with serious long-term health issues.
The American Telemedicine Association reports that majority of hospitals now use some form of telemedicine. Two years ago, there were approximately 20 million telemedicine video consultations; that number is expected to increase to about 160 million by 2020. An estimated one-third of employer group plans already cover some type of telehealth.
Vehicle Safety Recalls Are Often Ignored
A recent study by Carfax indicated that more than 63 million vehicles in the United States (one in four vehicles on the road) are being driven with unfixed safety recalls. J.D. Power and Associates estimated the number to be 45 million vehicles, while acknowledging the total could be higher due to older recalls that are difficult to track.
Why Are Vehicle Safety Recalls Often Ignored?
When vehicle safety recalls are delivered, many people put off addressing the issue or ignore it altogether due to inconvenience, lack of time, or perhaps not realizing the danger associated with some recalls. If they don’t own the car anymore, some prior owners just discard the notice.
In the 1980s, journalists used the Freedom of Information Act to obtain data on individual cardiac surgeons’ surgical outcomes from the New York State Department of Health. A recent JAMA article discusses that type of data and takes the position that despite its limitations, the data should be publicly reported.
Debate Surrounding Reporting of Individual Surgeons’ Outcomes
The debate centers on whether data should be reported on the hospital level only or also reported as to individual surgeons.
According to the article, several objections to reporting data relating to individual surgeons have been raised.
First, an individual surgeon may perform a low number of procedures, possibly leading to an unreliable measure of performance. However, the author notes that performance can be aggregated across multiple years or a surgeon’s performance across a range of procedures can be used. Also, the data can be presented in a way that highlights the statistical limitations.
A recent New Jersey case addressed a statute of limitations issue pertaining to claims arising from a physician’s disclosure of a patient’s HIV-positive status to a third party without his consent.
Plaintiff was a patient of the defendant physician, a board-certified nephrologist. He was being treated for acute kidney failure. During an emergency consultation in plaintiff’s private hospital room, defendant discussed his medical condition and disclosed plaintiff’s HIV-positive status in the presence of a third party without plaintiff’s consent.
Generally, after an examination for a medical problem, a doctor will sit down with a patient and explain what the issue is and offer treatment advice and alternatives. Often, the patient goes home afterward and then and can’t remember exactly what the doctor said. Was it ice, then heat – or heat, then ice? Do you take the new prescription before or after eating? How long should you wait before resuming normal activity? What were the risks and benefits of each treatment option?
What did the Doctor Say?
Anxiety, confusion, or the medical issue itself may affect a person’s ability to remember and understand what transpired during a doctor’s appointment. This is especially true if the medical condition being discussed is complex and/or many treatment options are offered.
Patients may turn to recording their conversations during doctor visits, either to listen to the recording later to clarify what was said or to share with family members who can help them make an informed healthcare decision.
What Does the Law Say About Recording Doctors? Wiretapping Statutes
Researchers from The Dartmouth Institute for Health Policy and Clinical Practice’s Open Recordings Project recently published an article in the Journal of the American Medical Association (JAMA) that discusses the legality of recording medical visits as well as other related issues.
State wiretapping statutes apply when patients’ conversations with physicians are recorded. The key factor in state wiretapping laws involves consent – that is which parties to the conversation need to consent to the recording. In states where all parties need to consent, recordings made without such consent violate the law. In states where only one party needs to consent, a patient can record a conversation with a doctor during an appointment without the doctor’s consent.
Pennsylvania requires the consent of all parties to the conversation before recording. In Pennsylvania, the patient needs the doctor’s consent before recording a conversation taking place during an appointment.
New Jersey requires only the consent of one party to the conversation. In New Jersey, a patient can record conversations during his or her appointment without the doctor’s consent.
The Health Insurance Portability and Accountability Act does not apply to recordings made by patients unless they provide that recording to a health care plan or health care practitioner.
Guidelines for Patients Recording Doctor Visits
Because patients are recording their doctor visits more frequently with technology such as smart phones, one of the Open Recordings Project authors, Glyn Elwyn, M.D., stated that it may be time for medical professionals to develop guidelines to protect confidentiality and privacy. Clear guidelines would promote responsible, positive use of open recordings. Guidelines could also address issues such as sharing recordings on social media or with other healthcare providers.
A recent study by a team of vehicle experts at the U.S. Department of Transportation’s Volpe Center found that pedestrian crash avoidance/mitigation (PCAM) systems can potentially reduce up to 5,000 vehicle-pedestrian crashes and 810 fatal vehicle-pedestrian crashes each year. Even if a crash is unavoidable, PCAM systems may reduce the resulting number of injured pedestrians by lowering the speed of the vehicle prior to impact.
It only takes a momentary distraction to cause a motor vehicle/pedestrian collision. That distraction may be on the part of the driver of the vehicle or the pedestrian, or a combination of the two. A driver may be distracted by children in the car or a ringing cell phone, or by changing the music that is playing. A pedestrian may be looking at his or her cell phone, talking to others, or even reading while walking. But whatever the cause or causes, the pedestrian is by far the most likely to be injured or killed as a result of the impact.
In Pennsylvania, a medical malpractice lawsuit must be filed in the county where the alleged malpractice occurred.
The Superior Court in Pennsylvania recently reversed a trial court decision in a medical malpractice case that transferred venue from Philadelphia County to Berks County, sending the case back to Philadelphia County.
The case involved a premature infant who was being treated in the neonatal intensive care unit in a Berks County hospital. The infant underwent a transthoracic echocardiogram in Berks County, which was interpreted by a pediatric cardiologist working in a hospital in Philadelphia County. The Philadelphia cardiologist wrote a report of her findings, including her diagnosis and treatment plan. The diagnosis of the Philadelphia doctor was pulmonary hypertension requiring immediate treatment or intervention, which was to be forwarded to plaintiff’s treating providers in Berks County.
A physician cannot perform a surgery or other medical procedure on a patient without first obtaining the patient’s informed consent. Informed consent means that the patient was advised of the risks, benefits, and alternatives to the procedure and, knowing these, made the decision to undergo the procedure. A physician can be legally liable where he or she fails to obtain a patient’s informed consent before performing a medical procedure.
In a recent medical malpractice action, the Pennsylvania Supreme Court held that a physician’s duty to provide information to a patient sufficient to obtain her informed consent is non-delegable. Thus, conversations between the patient and members of the physician’s staff will not suffice. The duty to obtain a patient’s informed consent for a major medical procedure belongs to the physician, who must inform the patient about the risks, benefits, likelihood of success, and alternatives.