Attorney Blog

Are Short Doctors Unnecessarily Prescribing Growth Hormone to Children?

jfisher@protectingpatientrights.com (blog Author)38142 — Mon, 30 Aug 2010 08:00:00 EST

Is your child on the shorter side? Is his or her natural levels of growth hormone at a normal level? Has he or she still been prescribed a growth hormone to increase his or her size? It's a strong possibility that your doctor is prescribing your child the hormone unnecessarily due to his or her own personal attitudes concerning height. A new study, led by Dr. J. B. Silvers of Case Western Reserve University, showed that some doctors may be just as swayed by their own attitudes about being short as by data, suggests a new study. According to Silvers, doctors who believe that being taller is better for a child's emotional well-being treat shorter children with growth hormone despite the fact that the child produces normal levels of the hormone. The study found that doctors especially tended to over-prescribe the treatment with boys that tended to be on the shorter side. In fact, in some cases, the doctors' own attitudes concerning their own shorter statutes increased their probability of prescribing the treatment.

The researchers gathered their results by surveying 656 pediatric endocrinologists on how they would treat different hypothetical kids "who were very short but didn't have a deficiency in growth hormone or another clear medical condition". They gave the doctors different cases that would include extensive information on the child and his parents, such as the child's gender, current height, and projected adult height, and the child's parents desire on how badly they wanted their child to take grown hormone treatment. The doctors were then asked whether or not they would start that child on growth hormone.

The researchers then give the doctors one more piece information: they would tell them how one year later, the child grew, and how the family now feels about growth hormone. The doctors would then be asked: "Do you stop treatment, continue with the same treatment, or up the dose?"

The results of the study showed that when a child had barely grown after a year on growth hormone, many "rejected conventional recommendations, which say treatment should be stopped if a kid grows less than 2 centimeters a year". Furthermore, when the doctors were presented with a case of a kid who grew only 1 centimeter in a year on growth hormone, 60 percent of them recommended upping the dose. 14 percent thought it should be kept the same, and 26 percent voted for stopping treatment. In addition, doctors were more likely to keep kids on growth hormone when the kids had been shorter to begin with, when families still wanted treatment, and when they themselves believed that being very short takes an emotional toll on kids. The study also stated that 1 in 4 of the doctors responded that growth hormone has a positive impact on very short kids, even if it ends up having "no major effect on their adult heights".

Like many medical experts, I found the study's results disturbing. Doctors may be risking a normal child's health by administering large and unnecessary doses of growth hormone. Hormone growth therapy is still thought to be experimental and should therefore be used only when necessary and, the long-term effects of giving a child growth therapy when their own natural hormone levels are normal is unknown and could be potentially harmful. Furthermore, according to medical experts, hormone growth therapy may increase a child's risk of developing diabetes and cancer in the future. Additionally, researchers agree that administering larger dosages of growth hormone may cause joint swelling, joint pain, carpel tunnel syndrome, and sleep disorders.

However, I can also say that I do not find the study's results shocking, a legal assistant of mine who is on the shorter side (5 feet tall) told me that she was actually prescribed growth hormone over twenty years ago when she was a child. Although her parents opted to forgo the treatment, they did tell her later that almost all of the doctors that pushed for the treatment were on the shorter side, and that they seemed extremely concerned about how she would be treated by other children growing up rather than just her overall health.

Before you agree to put your child on hormone growth therapy, ask your doctor about whether or not his or her natural growth levels are normal. If they are, you may want to think about forgoing treatment, Furthermore, if your child was prescribed human growth hormone unnecessarily and then developed health problems, it could have been caused by the unnecessary dosage. You may be entitled to legal recourse and medical expenses. Consult an attorney as soon as possible!

Do Doctors' Religious Beliefs Color Their Medical Decisions?

jfisher@protectingpatientrights.com (blog Author)38039 — Fri, 27 Aug 2010 08:00:00 EST

Does your doctor's religious beliefs color his decisions when it comes to palliative and elder care? Unfortunately, new research indicates that it does. According to a new study, "The role of doctors' religious faith and ethnicity in taking ethically controversial decisions during end-of-life care", published yesterday online in the Journal of Medical Ethics, doctors who are atheist or agnostic are "twice as likely" to make medical choices that can end a terminally ill patient's life more quickly.

In order to complete the study, which was conducted by Clive Seale, a professor of medical sociology at the Centre for Health Sciences in Barts and The London School of Medicine and Dentistry at Queen Mary University of London, researchers analyzed 4,000 surveys given to British physicians between 2007 and 2008 that questioned their end-of-life care and religious beliefs. Specifically, the doctors were asked about their religious beliefs and background, their position on assisted suicide, and were asked to describe their most recent experience regarding a patient who died under their care. The doctors surveyed were from many different practice groups including neurology, family medicine, geriatrics and hospice.

According to Seale, his findings showed that a doctor's religious beliefs undoubtedly influence the care the they provide for dying patients. For example, Seale found that "religious doctors are less likely to report having taken decisions which they expected or partly intended to shorten patients' lives, such as withdrawing life-sustaining treatments...[and] in the few times they do take such decisions, they are less likely to say they discussed this with the patient." Seale also found that those doctors who focused on geriatrics were more likely to identify as Hindu or Muslim, while those in palliative care were identify themselves as Christian. Additionally, Seale found that a physician's ethnicity may play a part in their end of care treatment of patients.

In addition to these findings, the study also found that:

1. British general practitioners are less likely to hold strong religious beliefs in general. This finding contrasts to research that indicates that American general practitioners more likely to be religious.

2. White physicians were the least likely to describe themselves as having strong religious beliefs and the most likely to support assisted suicide

3. Non-white and non-Asian physicians were more likely to oppose to assisted suicide

4. Doctors who described themselves as "very or extremely" non-religious were more likely to use sedation when treating dying patients, and twice as likely as religious doctors "to have been involved in decisions intended to hasten the end of life".

5. Doctors in hospital specialties were "10 times more likely to say they had been involved in a decision that was expected to hasten the end of life than palliative care physicians were".

The study's findings are actually quite surprising to me. I would have thought that doctors that were atheist or agnostic would actually try to lengthen their patient's lives as they typically do not believe in any sort of afterlife, while those doctors that were religious would tend to try and hasten their patient's lives if they were suffering. I personally believe that a doctor's religion and ethnic background should play no part in the type of care that they give, and that the only time that religion should be a consideration is when it is at the patient's request. I think that this study should serve as a wakeup call to doctors, both British and American, that their beliefs and background may be coloring their decisions and that they should alter their behavior accordingly. Doctors should be given more training to inform them of how their religion may be playing a part in their decisions, and trained to try and not let it dictate what care should be given to terminally-ill patients. Medical decisions should be made with the best interest of the patient in mind, and not by what makes the doctor most comfortable personally. If you would like to read all of Seale's findings that I may not have included in this blog, you can read his complete study at:

http://jme.bmj.com/content/early/2010/07/22/jme.2010.036194.full?sid=05d59dc1-3775-482f-aac0-0ded2b883d8b.

Is Settlement Enough In Local Autism Abuse Case?

jfisher@protectingpatientrights.com (blog Author)37944 — Thu, 26 Aug 2010 08:00:00 EST

According to a report in The Times Union, Michael and Lisa Carey, the parents of a 13-year-old autistic boy who died while in state care, have recently settled the lawsuit they had filed against a private facility the child had previously attended. The suit was brought against the Anderson Center for Autism, located in Staatsburg, Dutchess County, after the child's parents learned that health care workers had withheld food from their son, Jonathan, and discovered him naked in his room, covered in bruises and no longer toilet-trained. They immediately removed him from the Center.

However, Jonathan's nightmare was not over yet. After Jonathan's parents withdrew him from Anderson, he was place in O.D. Heck Center, a state-run facility located in Niskayuna, New York. In February 2007, Jonathan died after suffocation while being restrained by a staff member during a trip off of the premises.

According to the Times Union, O.D. Heck Center is operated by New York State's Office for People with Developmental Disabilities. O.D. Heck Center has no affiliation with the Anderson facility. One of the O.D. Heck Center staff members pleaded guilty to criminally negligent homicide and another was convicted of manslaughter.

The Careys, whose activism following their son's death resulted in the passage of enhanced state disclosure laws regarding the disabled, are also suing O.D. Heck for their son's death.

I am glad that The Carey's activism resulted in enhanced disclosure laws for the disabled, however I am still concerned for those patients that continue to work at both facilities. I do not think that the reaching of a settlement solves any of the problems that the facility obviously has. According to an article published in The Times Union, many of the staffers who were at Anderson during Jonathan's stay are still employed. Additionally, Anderson was licensed by New York State's Office for People with Developmental Disabilities, the same agency that operated O.D. Heck. I am concerned that these state agencies are not providing the amount of oversight and training required to ensure that this tragedy never happens again.

An Innovative Way to Cut Down On Emergency Room Waiting Time

jfisher@protectingpatientrights.com (blog Author)37885 — Wed, 25 Aug 2010 08:00:00 EST

Have a sprained ankle, need stitches, or feel a cold coming on? Don't want to wait for hours in the emergency room? You may not have to thanks to new systems being put in place by some area hospitals. Hospitals all over the country are now starting to use billboards, text messaging, and other types of technology to inform patients of the amount of time they will have to wait to be seen once in the ER. According to an article published in the Associated Press this week, this tactic is becoming a growing trend as ERs are getting busier and waits are growing longer. Hospital officials hope that posting wait times will decrease overall patient volumes, improve customer satisfaction, and decrease the amount of time that patients that need urgent care are required to wait for beds.

According to the Centers for Disease Control and Prevention, ER visits have been at their highest with 123 million patients being seen in 2008. This is up from the 117 million patients seen only a year earlier. Furthermore, according to the Associated Press, last year Congress' investigative arm reported that patients who should have been seen immediately waited almost a half hour and that trips to the ER lasted an average of at least three or four hours.

It is unclear how many emergency rooms have systems in place that allow patients to check average wait times. However, Dr. Nick Jouriles, the emergency medicine chief of Akron General, a hospital in Ohio, is implementing a study that will measure whether posting wait times will make a difference in customer satisfaction, patient volume, and the average wait times.

Medical experts and hospital officials stress that wait time technology should only be used by potential patients with non-life-threatening conditions, such as those with a sprain and a cold. In the case of a serious injuries or medical problem, patients should go directly to the emergency room to be seen right away.

I think that it is fantastic that hospitals are using technology to cut down on wait times, and I hope that the implementation of such systems will decrease the time that patients with life-threatening conditions will need to wait to be seen by a physician. Right now, there are patients that urgently need to be seen by a physician that are forced to wait in emergency rooms for hours and are not given the prompt medical attention needed. These delays can result in unnecessary complications or even death. Although I tried to find wait times for local hospitals, I could only find two that posted any type of information pertaining to wait times. I think our local hospitals need to get with the program and start using post time technology!

Click to Learn About a Scam Nursing Home Residents Must Watch Out For!

jfisher@protectingpatientrights.com (blog Author)37820 — Tue, 24 Aug 2010 08:00:00 EST

The majority of nursing home residents are vulnerable to abuse due to either their weakened physical or mental health. The abuse can manifest itself in various forms: physical abuse, sexual abuse, emotional abuse, and now...financial abuse.

Last week, insurance agent, Kimberly Bisslessi Eddins, pleaded not guilty in Mobile, Alabama's federal court to allegations that she involuntarily enrolled nursing home patients in insurance plans to obtain commissions from her employer. According to the indictment, from December 2008 through June 2009, Eddins enrolled residents of the Citronelle Convalescent Center in an insurance plan provided by her employer, Coventry Health Care by using their names, dates of birth and Social Security numbers. By signing up the residents, Eddins received commissions on the sales that totaled around $3,800. Eddins' actions cost the residents hundreds of dollars in premium fees. The indictment does not disclose how Eddins' obtained the residents' personal information, although some suspect that Eddins' may have had help from someone inside the nursing home.

Although Eddins' crime took place in Alabama, it serves to highlight how vulnerable nursing home residents are to financial abuse. The prevalence of financial abuse within nursing homes is sometimes forgotten as news stories of physical and emotion abuse often take priority over those pertaining to financial abuse. However, financial abuse can be devastating to a resident, and it often takes years to sort out.

Nursing home staff or family members can financially abuse a resident in numerous ways by:

1. Stealing personal information to obtain credit
cards, to sign them up for unwanted programs, or to drain their bank account
2. Stealing personal property
3. Preying on their weakened mental state and persuading them to change a will, trust, or
deed in their favor.
4. Withholding payment for needed residential services or by being late in payments (pertains to
family members only)

You can be on the look-out for signs of financial abuse. If you have access to your loved ones' financial records, be vigilant of any sudden financial changes and monitor any unusual fluctuations in your loved ones' bank account. Watch out for frequent payment to unknown insurance companies or telemarketing promotions and keep an eye out for missing personal property in their room. If you are a caregiver at a nursing home, look for signs of financial abuse by family members, such as a resident frequently writing out checks written to cash for large sums of money (usually to a family member), or a resident frequently having insufficient funds for needed personal items and services.

Feeding Tube Mistakes During Pregnancy Lead to Death and Despair

jfisher@protectingpatientrights.com (blog Author)37745 — Mon, 23 Aug 2010 08:00:00 EST

The misuse and poor design of feeding tubes is leading to countless deaths, including those of pregnant women, unborn children, and infants. However, both the Food and Drug Administration and the manufacturers of the tubes are dragging their feet when it comes to removing them from circulation. This week, The New York Times reported on how feeding tube "mix-ups" most likely occur in about 16% of hospitals each year. This mistake may occurs when liquid-food bags are connected to a tube entering a patient's veins instead of to their stomachs. According to experts putting food directly into the bloodstream "is like pouring concrete down a drain". Such mistakes can result in serious injuries, and death.

The New York Times told the stories of two patients that had been victims of this mistake: Chloe Black, a premature infant who was being fed breast milk through feeding tube to help her gain weight and Robin Rodgers, a pregnant woman whose doctors chose to hospitalize her and have her fed through a tube in her stomach until her baby's birth because she was vomiting and losing weight. A nurse mistakenly connected a bag of breast milk to an intravenous tube connected to Chloe's veins instead of to her stomach feeding tube which led to the formation of blood clots throughout her body, profuse bleeding and seizures. Robin's nurse connected a liquid-food bag to a tube entering Robin's vein instead of snaking he tube through her nose and into her stomach. Due to the mistake, Robin's baby died shortly after the misconnection, and Robin died in agony soon after.

Tubing mistakes may also occur when tubes intended to inflate blood-pressure cuffs are connected to intravenous lines or intravenous fluids are connected to tubes intended to deliver oxygen. The mix-up of feeding tubes has been a problem for decades. Hospitalized patients have a number of tubes connected to their bodies that may deliver medicine, food, blood, and fluids to numerous veins, organs, and arteries. The fact that most tubing is interchangeable makes it easy for mix-ups to occur.

Although advocates have pushed for increased regulation by the FDA, and new designs that would make tubing unique to its particular usage, change has been slow. In 2008, legislation was passed in California that would have mandated that feeding tubes no longer be compatible with tubes that go into the skin or veins However, tubing manufacturers have been able to delay the bill's effects. Furthermore, the FDA's approval process is flawed It requires "only that the manufacturer prove that a new product works just like an old one, whether the old one is safe or not". According to the New York Times, no clinical testing or proof of safety is usually needed. Although the FDA has now started a reassessment of its device approval process, it will take quite awhile before the tubing can be taken off of the market.

I hope that the FDA and tubing manufacturer’s decide to take charge of this problem immediately. Tubing mistakes have been occurring for far too long. I hope that nurses are being educated about how easily mix-ups can occur and how vigilant they must be when connecting intravenous bags and liquid-food bags. I am appalled that this mistake has been occurring for as long as it has especially since it can have such dire consequences. The FDA must take action immediately, and manufacturers should start thinking about the lives of future patients instead of their bottom line.

Discover Why A Doctor's Apology Is Worth A Thousand Words

jfisher@protectingpatientrights.com (blog Author)37567 — Thu, 19 Aug 2010 08:00:00 EST

Apologizing for a medical mistake may save doctors thousands of dollars and the stress of a malpractice lawsuit. According to a new study, recently published in The Annals of Internal Medicine and conducted by researchers at the University of Michigan Health System and Brigham and Women's Hospital, doctors that admit a medical error, apologize, and offer compensation are less likely to be sued by their patients.

In 2001, University of Michigan Health System officials launched a program aimed at encouraging healthcare professionals to report their medical mistakes. The program created procedures for healthcare professionals to follow after a mistake had been made including: "telling patients about errors; explaining who made the error, how it occurred and what steps were taken to prevent a similar mistake in the future; making a sincere apology to the patient or their family; and offering fair compensation for harm when at fault".

According to the researchers, an analysis of records pertaining to 1,131 malpractice claims filed against healthcare professionals employed at the hospitals between 1995 and 2007 (both before and after the new procedure was put in place), showed that the new procedures resulted in a large reduction in the number of lawsuits, lower legal costs, and faster dispute resolution.

Their findings showed that after health care providers began admitting mistakes, apologizing and offering compensation, the monthly rate for new claims fell from "just over seven per 100,000 patient encounters to 4.52 per 100,000, or 36 percent". Furthermore, the average monthly rate of malpractice lawsuits filed against the hospital "fell by more than half, from 2.13 per 100,000 patient encounters to 0.75 per 100,000". Lastly, the median time it took to resolve claims dropped by several months, while the mean costs for liability, fell by 60 percent and the average cost for lawsuits that were filed decreased, from about $406,000 to $228,000.

This research flies in the face of what most physicians and healthcare workers are typically told to do in the case of a medical mistake. Healthcare professionals are usually encouraged not to apologize, as that could be the equivalent of admitting fault, and could essentially open them up to a meritorious lawsuit. According to an article on the topic in Bloomberg Businessweek, most doctors fear that "admitting fault invites lawsuits and amounts to handing over a 'blank check' to attorneys". While that may be true in some cases, the University of Michigan Health System's research shows that is hardly always the case, and that apologizing may be the way to go.

It is refreshing to hear that doctors are owning up to mistakes and apologizing instead of simply hiding behind hospital officials and lawyers. I would be very interested to see this procedure implemented in other hospitals, and whether the results are similar. I am curious to see whether certain variables play a part in the success of apologies, such as the type of mistake, the location of the hospital, and the type of doctor giving the apology. The University may be onto something if their research results can be duplicated in other hospitals.

Doctors Still Able to Obtain Liability Insurance After Being Sanctioned Multiple Times

jfisher@protectingpatientrights.com (blog Author)37394 — Tue, 17 Aug 2010 08:00:00 EST

Have you always thought that a doctor would go out of business after being sued a number of times? Or that he would lose his license or ability to get insurance if he'd been sanctioned more than once by The State's Medical Board? Well that just isn't the case. Many of these doctors can still obtain insurance and stay in business. Though it does come with a high price.

The Medical Malpractice Insurance Pool of New York State (MMIP) affords insurance to those doctors that are the worst of the worst in New York State and don't qualify for traditional medical liability insurance. These doctors can't obtain regular malpractice insurance because they have either been sued numerous times, been sanctioned multiple times by the Medical Board, or have lost their hospital privileges temporarily in the past due to negligence. The MMIP supplies insurance to approximately 585 physicians each year with rates that are about 200% higher than those with traditional insurance.

According to the State of New York Insurance Department, MMIP was created pursuant to N.Y. Ins. Law § 5502(c)(2)(D) and N.Y. Comp. Codes R. & Regs. tit. 11, Part 430 (Regulation 170), as an "assigned risk mechanism" for providing medical malpractice insurance to all eligible health care providers who are unable to secure coverage in the voluntary market. According to the department, participation by insurance companies in the Pool is determined annually on the basis of "net direct premiums written during the preceding calendar year" An insurer that writes 0.01% or more of its medical malpractice net premiums in New York is required to participate in the Pool; insurers that do not write 0.01%, do not have to participate.

However, local insurance experts assert that MMIP is actually a little known subsection of the Medical Liability Mutual Insurance Company (MLMIC), which is the largest insurer of physicians in New York State. I am puzzled by the conflicting information. Perhaps MLMIC is the only company that writes 0.01% of its net profits in New York. Or perhaps it voluntarily chooses to insure these individuals and be part of the pool. There is a dearth of information on MMIP, perhaps because the legislature doesn't want it getting out that it passed legislation that to help negligent doctors obtain insurance.

Either way, I was extremely surprised to find out that MLMIC participates in MMIP. MLMIC, which was created in the
1970’s by the Medical Society of the State of New York to replace private carriers that had fled the costly medical insurance business, was always a name that I had always felt was somewhat responsible when it came to choosing which doctors to it would insure. I always assumed that MLMIC would never insure the types of doctors that are being afforded insurance through the MMIP Program. All I can hope is that MLMIC is required to participate through the afore mentioned legislation, Unfortunately, there is no way to find out who is actually insured through MMIP. Although information on whether a doctor has been sued, sanctioned, or had hospital privileges revoked is public, it can sometimes be a hassle to figure it out. I think it would just be easier if the public could know who was had to obtain MMIP insurance so that they could easily steer clear of them if they so choose.

Make Sure You're Strapped In For This!

jfisher@protectingpatientrights.com (blog Author)37328 — Mon, 16 Aug 2010 08:00:00 EST

You wear a seat belt when you're in a car. You harness yourself in for an amusement park ride. But does your doctor strap you in when you're on the operating table? Will your local EMTs strap you on to the stretcher if you're being taken to the hospital in an emergency? You'd better hope so, otherwise you might end up plummeting head-first into the ground.

It's not uncommon for patients being operated on, taken to the hospital on a stretcher, or just being examined in a doctor's office to fall and injure themselves. Many of these patients are on the heavier side, weighing in at 300 pounds or more. However, you don't have to be overweight to fall during an exam or operation. Medical professionals are filled with anecdotes of times when patients of all sizes have rolled off an exam table and broken their arm, fell off of EMT stretchers and cut their forehead, or rolled off of a hospital bed fracturing their skulls.

These injuries are typically caused by the negligence of a host of health care professionals, including attending physicians, surgeons, anesthesiologists, residents, emergency medical technicians, and nurses. In some cases, patients have even died due to injuries sustained after falls during surgery. For example, a Minnesota family has filed a medical malpractice lawsuit against a local hospital after their father rolled off of an operating table while under anesthesia. The man had just suffered a stroke and was undergoing a lumbar drain. Part of his skull had been removed, and he hit the exposed part of his brain on the floor. Although the hospital performed additional surgeries on the man to correct the damage caused by the fall, he never recovered from the incident and died of a massive stroke a month later.

The lawsuit alleges that the hospital failed to use proper safeguards to prevent the fall. Although the man was strapped in by velcro straps, he weighed around 300 pounds and the straps were not strong enough to support his weight. According to the suit, the man was well "within the weight parameters of many of the patients the hospital would have to deal with, especially among stroke victims who are often overweight". A lack of straps may not be the only reason why a patient falls during surgery. The patient may also be given improper dosages of anesthesia causing them to move or twitch during the operation, or they may be improperly positioned or moved during the procedure.

Hospitals and doctors offices are required to have proper safeguards in place to ensure that their patients don't fall during an exam or surgery. Although many doctors and hospital officals try to exuse these falls as not being their fault and argue that the patient was just too large to handle, with the majority of Americans being overweight, I believe that hospitals and medical care professionals must be prepared to handle persons of all sizes. It's time for all hospitals to become equipped to handle patients of all sizes, and to ensure that their tables and medical transport devices are fitted with straps, safety bars, and other safeguards to ensure that patients remain safe at all times.

Your Rights Under the HIPAA Privacy Rule

jfisher@protectingpatientrights.com (blog Author)37248 — Fri, 13 Aug 2010 08:00:00 EST

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and New York laws give you rights to your medical records. The HIPAA Privacy Rule establishes standards that apply to records held by health care providers across the nation, and New York law sets standards for records maintained by health care providers within the state. Health care providders in New York must follow both the HIPAA Privacy Rule and New York law.

HIPAA is intended not only to protect your medical information from unwarranted disclosure, but also to protect your rights as a patient. Here's how you can exercise those rights:

Conditions: If you are a patient in a hospital, people who call to obtain a condition report will be given a one or two word summary, such as "serious" or "critical". If you don't want that summary given, you have the right to request non-disclosure.

Observers: If you are being examined by a physician and your treatment is being observed by others who aren't participating in your care, such as sales representatives, consultants, or office administrators, you can ask them to leave the room.

Forms: Read carefully any privacy forms you are asked to sign. Some forms that at first appear only to be an acknowledgment of your rights also provide authorization for sharing of information for marketing purposes, which is allowed under HIPAA. You should not be required to sign any disclosure-consent forms as a condition of treatment.

Surveys: Customer-satisfaction survey are given to patient by many clinics and hospital. You are not required to complete them, but they can help providers improve patient care. Be wary of questions about your age, income level, buying habits, and ZIP code. They're more likely to be used for marketing purposes.

Policies: You should obtain copies of your care provider's "notice of privacy practices" and the name and phone number of the provider's privacy officer.

Database: You can access some of your medical information at no charge each year from the Medical Information Bureau.

Your medical records may be disclosed without asking or even notifying you. Hospitals will hand over information regarding your treatment to other doctors, and they will readily share those details with insurance companies for payment purposes. Roughly millions of entities that are loosely involved in the health care system have access to your health care information.

The Medical Information Bureau (MIB) is a cental database of medical information shared by insurance companies. Approximately 15 million Americans and Canadians are on file in the MIB's computers. Insurance companies report information to the MIB, such as codes for specific medical conditions and lifestyle choices, i.e. hypertension, asthma, diabetes, or depression.

The MIB does not have a file on everyone. But if you have a MIB file, you will want to be sure it's correct. You can obtain a copy for free once a year by calling (866)692-6901 or by visiting the MIB's website, www.mib.com. You can also contact the MIB at the Medical Information Bureau, P.O. Box 105, Essex Station, Boston, Massachusetts 02112, or by sending an email to infoline@mib.com.

Disclosures: If you suspect your medical records have been improperly shared, you can ask providers for an accounting of all disclosures. Under HIPAA, you have the right to receive an accounting of disclosures that a "covered entity", i.e., physician or hospital, make of your medical records is the six-year period preceding the date on which the accounting is requested.

Enforcing HIPAA: Civil enforcement of HIPAA, which can lead to fines, is left to the Office of Civil Rights within the U.S. Department of Health and Human Services. Criminal enforcement, which can include fines and prison terms, is handled by the U.S. Department of Justice.

Case: Of 38,000 HIPAA complaints made across the nation in the past five years, the Office for Civil Rights has referred 437 cases to the Department of Justice for criminal prosecution.

Outcome: Nationally, fewer than a half-dozen cases have been prosecuted. No civil fines have been imposed, but one case recently led to a $100,000 settlement. So far, prosecutors have focused almost exclusively on the few people who have gained access to patient information with the intent of selling it or using it as part of some other crime, such as identity theft. Health care workers who have obtained medical information improperly and then shared it, free of charge with friends and neighbors, have not been prosecuted.

Sexual Abuse Not Uncommon Within Nursing Homes

jfisher@protectingpatientrights.com (blog Author)37079 — Wed, 11 Aug 2010 08:00:00 EST

A rash of nursing home sexual abuse allegations has been sweeping the country. One only has to read the extensive blogs, news articles, and first hand accounts to see that the number of cases is rising. According to expert research, sexual abuse accounts for about 2% of nursing home abuse cases. Unfortunately, only about half of all instances of sexual abuse within a nursing home come to light; in many cases, nursing home officials either brush aside allegations of abuse or try to cover-up evidence of the abuse to avoid legal sanctions.

Sexual abuse within a nursing home can present in many forms. Typically however, the abuse is perpetrated either by one resident against another or by a staff member against a resident. Abuse can happen at any nursing home that is not well monitored, or whose staff has not been well trained or subjected to background checks. In fact, it is not uncommon for the nursing home within which sexual abuse is occurring to be a hot-bed to other types of neglect and abuse. For example, just a few months ago, I blogged about Robert Gunderson, a certified nursing aid at Northwoods Rehabilitation Center of Troy, New York. Gunderson was sentenced to ten years probation and required to register as a level two sex offender after he sexually abused an elderly resident. Northwoods was later the subject of an intense investigation where 14 nurses, nurses aides were charged with endangering the welfare of elderly residents and felony falsification of nursing home records after extensive abuse and neglect of its residents was caught on camera.

There are a number of tell-tale signs of sexual trauma that an abused resident might display. They include: depression, fear of certain residents or staff, difficulty walking or standing, bleeding, bruising or pain in the genital or anal region, increased discussion of sexual activity, discovery of sexually transmitted diseases, or changes in behavior. In New York State, a nursing home can be held both criminally and civilly liable for failing to prevent sexual abuse from occurring within their facility. It can also be held liable for failing to report abuse, trying to cover up evidence of sexual abuse, and failing to adequately investigate allegations of sexual abuse. If you think that a loved one has been the subject of sexual abuse in a nursing home, contact your local law enforcement, and consult with an attorney as soon as possible. While you may not be able to turn back the clock and prevent the abuse that already occurred from happening, you can prevent it from happening again.

Did You Know that the Doctor Treating You May Not Have Slept in Over 30 Hours?

jfisher@protectingpatientrights.com (blog Author)37004 — Tue, 10 Aug 2010 08:00:00 EST

For decades, hospital residents have been forced to tend to patients with little to no sleep under their belts. Up until 2003, medical school graduates performing their hospital residencies were forced to work more than 100 hours a week with hardly any time off to sleep. It wasn't uncommon for a resident to stay up for over 36 hours without getting any rest. Medical experts and empirical evidence shows that overworking the resident staff results in increased numbers medical mistakes, and opens up hospitals to numerous medical malpractice suits as a result of mistakes made by exhausted residents.

In 2003, the Accreditation Council for Graduate Medical Education adopted guidelines to limit the amount of hours that residents could be required to work. The guidelines stated that residents could work no more than 80 hours a week with no more than 30 hours of consecutive work. The Institute of Medicine (IOM) has recently moved to further alter these guidelines and asserts that while the 80 hour limit should be maintained, residents should be provided with at least 5 hours of uninterrupted sleep per every 16 hour shift. Other groups advocating for a reduction in hours argue that further guidelines should be put in place that further reduce the 80 hour week to a 60 hour week and that residents are still too tired to do their jobs properly.

Doctors fear that increased work caps may hinder residents' ability to see enough patients and practice enough procedures to become competent doctors. They also worry that patients will suffer as they are passed back and forth between different residents everytime a shift ends. Doctors assert that this "baton-passing" may lead to increased mistakes as one resident may not have all the information needed to properly care for the patient. Furthermore, for the first time ever, residents are actually sneaking around so that they can stay after their shift is over to watch procedures that they find interesting fearing that they will get in trouble if they go over the work cap.

However, these doctors and residents should fear not. Residents may continue to be overworked to save hospitals money. A new report published in the New England Journal of Medicine, "Cost Implications of Reduced Work Hours and Workloads for Resident Physicians", argues as determined that it will be more profitable for hospitals to continue overworking residents than to hire the extra staff of nurses and doctors they would need with reduced resident hours. The study, initiated in response to the IOM's recommendations, the new guidelines would cost teaching hospitals upwards of $1.7 billion dollars extra in labor costs to comply with the IOM guidelines. The study also estimated that teaching hospitals would have to employ an additional 7,600 specialty residents per year to cover their needs.

I am personally torn between the need for residents to get the required hours needed to learn the procedures and techniques required and the need for residents to get enough rest to be able to perform their duties properly. However, I support any new guidelines that will make the practice of medicine safer. I do not think working residents to the bone is the solution to safer medicine. I think that if residents are careful when they "pass the baton" to another resident, there won't be many mistakes made. I also think that if residents are forced to stay up for 30 hours just so that the patient just has one physician, I think that serious medical mistakes will continue to happen. I think that the medical community should really think about new guidelines that will ensure that residents get the training they need, but aren't sleep deprived during the process. Although I don't have all the answers, I am confident that with some brain power, a solution could be reached. Unfortunately, the new study in the New England Journal may slow any progress being made towards reducing resident hours or issuing any new guidelines as hospitals may use any pull they have to stop reforms from being made.

When you are at the hospital, as your attending physician whether he is a resident and how long he has been up for. If you are not confident that he is aware and awake enough to properly attend to you, you have the right to request another doctor. You have the right to proper care, and do not have to be treated by a doctor that can hardly stay awake. Perhaps if enough patients request well rested residents, the medical community will continue to find ways to train residents while also getting them the sleep they need.

John H. Fisher Starts New Website to Educate Public

blog@www.protectingpatientrights.com (news Author)16856 — Mon, 09 Aug 2010 08:00:00 EST

A companion site, www.protectingpatientrights.weebly.com, was created by John H. Fisher to continue to educate the public about medical malpractice, nursing home negligence, and birth injuries. Check it out to find new blog entries, helpful links, and other resources.

State and Federal Legal Action Taken Against Western New York Nursing Homes

jfisher@protectingpatientrights.com (blog Author)36782 — Thu, 05 Aug 2010 08:00:00 EST

Four Western New York nursing homes, Fairport Baptist Homes, The Brightonian, Park Ridge Nursing Home and Wayne Health Care, have been punished with Federal and State civil and/or criminal legal sanctions in the past 6 months.

First, according to the Long Term Care Community Coalition, Fairport Baptist Homes nurse, Glenda Crawford was sentenced to a one-year condition discharge and thirty-two hours of community service after "slapping a 90-year-old wheelchair-bound woman who had dementia and then [wheeling] the woman into an activities room and [barricading] the door". Crawford was sentenced after a jury convicted her of willful violation of health laws and endangering the welfare of an incompetent or physically disabled person. Fairport Baptist Homes is located in Fairport, New York.

Second, The Brightonian, a nursing home in Buffalo, New York, was fined $3,250 for "a pattern of substandard quality of care that could result in immediate jeopardy in providing care/services for highest well being" after a survery of the home's care was conducted by the New York Deparment of Health. The survey also found that The Brightonian facility failed to have systems in place "to ensure that advance directives were in accordance with the wishes for 24 of 48 residents reviewed". Park Ridge Nursing Home, of Greece, New York, was fined $9,360 after the same survey found the same pattern of substandard quality present at The Brightonian. Park Ridge failed to have advance directives that satisfied more than 12 of its 22 of residents.

Lastly, Wayne Health Care of Newark, New York, was fined $3,250 after the New York Department of Health survey found a "pattern of substandard quality of care resulting in immediate jeopardy of in regard to accident hazards". These hazards included "excessively hot water temperature and lack of individual assessments for need for side rails".

I think that it is troubling that four western New York hospitals have been found to have substandard (or downright criminal) care within only six months of each other. It should send a message to the Department of Health that many New York nursing homes are severely lacking in adequate facilities, staff, and care for their residents. I hope that the fines, and criminal sanctions will serve as a warning to other area nursing homes that substandard care will not be tolerated, and that real changes must be made in the way that these facilities are run. I hope that the Deparrtment of Health continues to survey New York State nursing homes and sanctions those homes and staff that could be hurting its residents.

To find reports on other New York nursing homes, go to nursinghomes.nyhealth.gov.

Despite New Law, Midwives May Still Need Practice Orders to Practice Safe Medicine

jfisher@protectingpatientrights.com (blog Author)36645 — Wed, 04 Aug 2010 08:00:00 EST

The Midwifery Modernization Act has now become law as of last Friday. Although many previously thought that it would give midwives an increased ability to independently practice, it may not do anything at all unless midwives open their own independent practices. The law abolishes the previous requirement that midwives obtain a written practice agreement to operate independently without the need to have an obstetrician's or a hospital's signature. While the passage of the law was heralded by midwives, as they believed that it would allow them more control over their practices, local hospitals and practices have now indicated that they will not change their requirements that all midwives obtain practice orders. This will prove an obstacle to midwives that may need to utilize hospital facilities.

For example, according to The Glens Falls Hospital by-laws, midwives must be employed by a physician practice to be granted hospital privileges. There is no indication that the hospital will change their by-laws unless absolutely required by law. This is unlikely, as the law only abolishes practice orders as a legal requirement; it does not state that they are prohibited completely. Dr. Douglas Provost, of Glens Falls Obstetrics & Gynecology Center, who has indicated his opposition to the law, stated that the passage of the law will not change the Center's requirement that midwives employed there obtain a practice order. According to Provost, the new law now states that midwives "can be independent, but they don't have to be independent".

Many obstetricians opposed the act because of the concern that when complications during birth arise, midwives will need the help of physicians, yet be without medical malpractice insurance. The new law will now cause problems of what midwives will do with expectant mothers that are in emergency need of a Ceasarean Section, but do not have a practice order to work along side a doctor at the local hospital. Some hospital officals say that midwives may need to just drop off their patient at the emergency room and hope for the best in times of emergency.

As I wrote in an earlier blog, the new law is much to do about nothing for midwives that do not intend to go into private practice. Midwives that are employed by local hospitals or wish to have hospital privileges will still need to obtain practice orders, and midwives that have never even heard of practice orders and have never needed to obtain them can go on about business as usual. However, problems may arise in emergency situations where expectant mothers need the help of a physician, but the midwife has not made any arrangement to obtain a practice order from a hospital that requires it. Therefore, the only people that this new law really may affect is those patients that choose to go to a midwife in private practice that has not prepared for worse-case scenerios and made arrangements with the local hospital. My hopes are that although many midwives think that this new law gives them more power, they will take extra steps to safeguard their patients, swallow their pride, and still obtain practice orders in anticipation of any emergencies to ensure that there will be no problems if hospital services are needed.

Lifesaving Diagnostic Test May Lead To Serious Health Problems

jfisher@protectingpatientrights.com (blog Author)36402 — Mon, 02 Aug 2010 08:00:00 EST

A potentially lifesaving diagnostic test is leading to serious health problems throughout hospitals in New York and across the country. In recent months, patients that have been administered CT brain perfusion scans, also known as "Stroke Scans", are experiencing hair loss, confusion, memory loss, and headaches as a result of massive radiation overdoses. So far, more than 400 patients have been administered overdoses of radiation while being scanned; some being given up to 13 times the accepted amount. CT brain perfusion scans are used to ascertain information pertaining to blood flow in the brain following a stroke or brain hemorrhage.

According to the Food and Drug Administration (FDA), knowledge of the radiation overdoses came to the FDA's attention late last summer. Since then, the FDA has launched an investigation into their cause, but has yet to release any report on their findings. The New York Times started their own investigation into the matter and has found that "radiation overdoses were more widespread than previously known" and that patients have been reporting symptoms as serious as cancer and brain damage.

Furthermore, the New Times reported last week that their own review has lead them to believe that the overdoses may be the result of both technician and manufacturer error. According to The Times, the technicians administering the tests may be poorly trained in how to properly administer the test, and the manufacturers of the scanners, such as General Electric, are negligently putting too much trust into the technician by failing to create mechanical safeguards that would prevent the technicians from administering too much radiation. According to medical experts, some hospitals officials are likely instructing their technicians to intentionally use higher amount of radiation in order to get clearer images.

The FDA has issued a nationwide alert instructing all hospitals to check the radiation output levels on the test, though research by the FDA and independent researches, such as The New York Times, has shown that many hospitals have failed to head their warnings, and the number of overdoses continues to rise.

I think that the FDA should speed up their investigation and make sure that they find out the cause and extent of these overdoses as soon as possible. The manufacturers of these machines should immediately get to work redesigning their machines so that the machines will prevent radiation from being administered at dangerous levels.Radiation overdoses caused by CT scanners usually lead to a distinctive pattern of hair loss. A patient that has received an overdose will typically loss their hair in a way that results in a bald band like shape encircling their head. For pictures, check out: http://www.nytimes.com/2010/08/01/health/01radiation.html?pagewanted=1&_r=1&emc=eta1. If you have had a CT scan and suspect a radiation overdose, consult your doctor immediately. You should also consult an attorney to find out your rights, and to make sure that hospital officials are notified that their machines may be causing patients health problems.

Doctors Don't Always Have To Take Pre-med Classes to Get Into Medical School

jfisher@protectingpatientrights.com (blog Author)36273 — Fri, 30 Jul 2010 08:00:00 EST

You probably always thought that your doctor had to take a bunch of pre-med classes to be admitted into medical school. However, Mount Sinai Medical School accept approximately thirty-five students a year who have not taken pre-medical school course work into their medical program. This unorthodox practice is part of their special program known as "HuMed". The HuMed Program admits humanities students into medical school that have not taken any science classes.

Traditionally,all medical students are required to complete core undergraduate classes such as biology, organic chemistry, and physics. However, Mount Sinai Medical School, admits students that have majored in subjects like Humanities, and never opened a science text book. Furthermore, all students admitted into medical school are traditionally required to take the Medical College Admission Test (MCAT). The MCAT tests the applicant's knowledge of scientific concepts, logical thinking skills, and writing skills. It is used to help weed out students that just aren't cut out for medical school from those that will excel in medical school. However, HuMed students are not even required to take the MCAT.

While Mount Sinai asserts that HuMed students do as well as traditional medical students, data suggests otherwise. HuMed students tend to have lower test scores on the first step of The Board, and tend to take more non-scholarly leaves of absence. According to experts, non-scholarly leaves of absence may suggest that these students are questioning their career choice.

The fact that Mount Sinai Medical School accepts students that haven't taken the MCAT or even any science classes makes me extremely nervous. I think that this practice sets a dangerous precedent of lowering the standards of those accepted into medical school, and those trained to practice medicine. There is a common saying:" What do you call a medical student that finishes last in their class? Doctor." One might think that even if the students that haven't taken the MCAT or any science classes, they can still excel in medical school and do well. However, these students may just be sliding through medical school, barely passing the Boards, and becoming doctors. It is a scary proposition that the safeguards, such as the MCAT, that prevent those unsure that they want to go into the medical field or that are unable to handle the material, may soon become obsolete.

Nursing Homes Using Tax Dollars to Restrain Residents

jfisher@protectingpatientrights.com (blog Author)36013 — Wed, 28 Jul 2010 08:00:00 EST

Your tax dollars may be going to your local nursing home to help them improperly restrain their patients. There have been a number of complaints around the country that nursing homes are improperly using what is known as "chemical restraints" to keep residents immobile and that residents are being killed through their use. "Chemical restraint" is when a person is force-fed powerful psychotropic drugs to control their behavior. They are only legal for a nursing home to use if they are needed to keep a resident from harming himself or others. Overdosage of these drugs can result in death or severe neurological damage. Research has shown that up to 15,000 nursing home patients die each year from the improper use of these drugs. Tax-payers foot the bill for these drugs in most cases.

According to the Senate Special Committee on Aging, the usage rate of chemical restraints in nursing homes has been rapidly increasing since 1995. According to the Department of Health & Human Services, eight percent of residents are improperly given chemical restraints each year. Furthermore, the use of chemical restraints is responsible for one percent of all nursing home complaints.

Chemical restraints may be misused in a number of ways. The dosage of the drugs may be too high, the duration of their usage may be improper, residents may not be monitored properly when restrained, or they may be used when there are no symptoms present in the resident to indicate that they need them to keep themselves from harming themselves or others.

The improper use of chemical restraints will continue to plague nursing homes residents if action isn't taken. I believe that action should be taken by state and federal legislatures to ensure that nursing homes properly monitor patients using these drugs, or even ban the usage of these drugs completely unless a resident has gone through rigorous examination to establish that they are absolutely necessary. If you suspect that a loved one is improperly given chemical restraints, file a complaint against the nursing home, and if possible, move them to a different facilitiy. If you suspect that a loved one died due to the improper usage of chemical restraints, consult an attorney immediately to find out whether criminal or civil action should be taken against the nursing facility.

Are New Yorkers Being Pushed To Have Invasive Cardiac Procedures?

jfisher@protectingpatientrights.com (blog Author)35808 — Mon, 26 Jul 2010 08:00:00 EST

If you have heart disease and live in New York, your doctor may not be telling you all of your treatment options. According to new research by Edward L. Hannan, the Dean of the University at Albany's School of Public Health, Hannan argues that "while medication or open heart surgery may be as effective or better for many patients", financial incentives for the hospitals cause New Yorks "to be pushed to have invasive cardiac procedures such as angioplasty and stenting procedures" instead. According to Hannan, "Invasive cardiac procedures are attractive to U.S. hospitals because they are highly profitable and generate considerable revenue for hospitals".

Medical research shows that patients that have open-heart surgery live longer than those that have PCI procedures. PCI procedures, while they may alleviate symptoms of heart disease, may not lengthen life expectancy. Even so, earlier research by Hannan suggests that procedures such as angioplasty and stenting procedures (procedures also known as percutaneous coronary interventions (PCI))are grossly overused. According to his research, 93% of patients who would have benefitted from either open heart surgery or PCI were recommended for PCI. 34% of patients whose condition suggested that surgery was the best option, "were steered toward" PCI, while 53 percent were told to get the surgery.In fact, according to Hannan, New Yorkers have twice the number of angioplasty and stenting procedures than those from Ontario, despite the fact that there is no difference in the rate of heart disease within each city.

If Hannan's assertions are true, I am alarmed by the fact that hospitals and doctors would have such disregard for their patients' well-being. While non-PCI procedures such as open heart surgery can be more time consuming, and require more recovery time, I do not think that cardiologists should suggest PCI procedures to patients that need surgical procedures just because of some financial incentives. Furthermore, I am concerned by the fact that PCI is utilized so frequently since medical research suggests that other types of surgery are more likely to lengthen patients' lives. I hope that cardiologists and other doctors become more aware of the benefits of non-PCI procedures and do not allow themselves to be swayed by financial incentives.

If you are a patient with heart diesase, research both PCI and open-heart surgery. If your condition warrants surgery, do not be swayed to undergo PCI solely because it seems easier. It may not lengthen your life; it may only lessen your symptoms.

Nursing Home Fails to Seek Emergency Care For Resident

jfisher@protectingpatientrights.com (blog Author)35809 — Mon, 26 Jul 2010 08:00:00 EST

A lawsuit was recently filed against the Sunrise Assisted Living Facility, a nursing home in Rochester, New York for the 2007 death of resident, Donald R. Salli. In August 2007, Salli was severely beaten by another resident who was suffering from dementia. According to the suit, although Salli required immediate medical attention, the staff delayed having him examined by a licensed nurse for seven hours due to their fear that they would be held liable for failing to prevent or stop the attack. Salli was eventually transported to an emergency room the following night with a fractured skull, bleeding in the brain, and multiple rib fractures. After spending a week in the ICU, he was released to a hospice and died 2 months later from his injuries. The suit alleges that the nursing home was negligent in both failing to adequately supervise its residents, and for failing to provide Mr. Salli with necessary medical treatment after he was attacked.

This case is a sad reminder of the types of negligence that can occur within a nursing home facility. Although the facts are not yet known in this case, it is likely that the nursing facility lacked adequate staff to monitor and control its residents, and that the attack might have been prevented if the facility had hired more nurses and nurses' aids and better trained its current staff. If all alleged is true, the shear selfishness of those on duty to delay a severely beaten man medical treatment is appalling.

The Salli lawsuit should serve as a reminder to those running nursing homes to properly train their staff, and to hire an adequate number of nurses and nurses' aids. Make sure to research nursing homes carefully before choosing one, and never let nursing home abuse go unpunished. If you or a loved one have been in a situation similar to this, report the incident immediately, and contact an attorney.

Recently Had A Mammogram? You May Want To Get A Second Opinion

jfisher@protectingpatientrights.com (blog Author)35687 — Fri, 23 Jul 2010 08:00:00 EST

After you go in for your next mammogram, you may want to get a second opinion. Diagnosing breast cancer can be difficult, and your physician may not have the skill to do so correctly. Research by the American Medical Association shows that the number of diagnostic errors is growing and that such diagnosis results in as many as 80,000 deaths each year.

A recent article in the New York Times detailed how breast cancer diagnoses are extremely prone to physician error. Clusters of malignant cells within the breast tissue are often easily overlooked by pathologists and radiologists, delaying the patient's ability to receive treatment and in some cases, irreparably damaging their chances of a health recovery.Additionally, physicians sometimes wrongfully diagnose patients with having cancer. These patients then go through unnecessary costly, painful, and traumatic treatments, and the emotional trauma of believing that they have a life-threatening disease.

Thankfully, the federal government is now backing a nationwide study concerning variations in breast pathology to determine how widespread misdiagnosis of breast cancer is. Currently there aren't any mandated diagnostic standard. This means getting an accurate diagnosis varies from physician to physician, and you should choose yours carefully. You should also make sure that your doctor records any family history of breast cancer, and make sure that you go for a mammogram right away if instructed. If you are experiencing unusual pain or find any usual lump or mass, go see your physician right away. If your physician does not recommend a mammogram, get a second opinion or insist on getting a mammogram. While you may not have control over the skill of your doctor, you do have control over whether you accept their opinion with no questions asked.

Furthermore, if you or a loved one was not diagnosed properly, you are not without options. Call an attorney right away to find out the legal options available to you. You may be entitled to medical expenses and monetary damages for the pain you or a loved one experienced.

New Guidelines May Help Prevent Unnecessary Caesarean Sections

jfisher@protectingpatientrights.com (blog Author)35599 — Thu, 22 Jul 2010 08:00:00 EST

Many women give birth by Caesarean section unnecessarily. Numerous studies have shown that most women could have given birth safely without one, but requested otherwise. However, in recent years, doctors and insurance companies are refusing to let mothers who have already had a Caesarean section give birth vaginally, and instead are forcing them to have unnecessary repeat Caesarean sections.

According to legal and medical experts, these decisions are fueled by fears of lawsuits and any medical risks associated with vaginal birth, such as uterine ruptures. However, in March, the National Institutes of Health, after convening a panel of medical experts, stated that giving birth vaginally after previously having a Caesarean is safe for the majority of women giving birth. As a result, the American College of Obstetricians and Gynecologists will soon be issuing a set of guidelines to make it easier for women to find doctors that will allow them to give birth without Caesarean section. The guidelines state that giving birth vaginally after a Caesarean section is now considered a "safe and appropriate choice". Also appropriate candidates for vaginal birth are women who have had two previous C-sections or are carrying twins.

I am extremely happy about the new guidelines. I don't think that the decision of whether or not a women should have a Caesarean section should be predetermined by doctors or insurance companies without examining and consulting with them first. Such a decision should be made on a case-by-case basis. In many cases, Caesarean section birth can be just as risky as vaginal birth! In any surgical procedure, there are multiple risks involved including infection, reactions to anesthesia, bleeding, and scarring. With Caesarean sections, there are added risks such as injury to the uterus and bowel obstruction. Patients should be told about the risks associated with each birthing method, and should not be forced to endure a risky surgical procedure if not absolutely necessary. Hopefully, the new guidelines will decrease the number of unnecessary Caesarean sections, and give back mothers some power to choose the birthing method that is right for them.

When Bypassing The Emergency Room May Save Your Life

jfisher@protectingpatientrights.com (blog Author)35611 — Thu, 22 Jul 2010 08:00:00 EST

According to a new study conducted by the United Hospital of St. Paul, Minnesota, if you are having a heart attack, patients get faster care and are more likely to survive if they are brought directly to a hospital "cath lab" instead of the hospital's emergency room. Within the cath lab, doctors can quickly open a patient's blocked arteries and vastly improve their chance of recovery. In fact, the study showed that taking a patient directly to a cath lab cut the time needed to treat a heart attack "from an average of 81 minutes to 36 minutes". Patients that went straight to the lab had only a 3.9 percent chance of dying, while those taken to the emergency room first had a 7.5 percent chance of dying.

Unfortunately, only a small fraction of hospitals have systems in place where patients can be brought directly to a cath lab. The "direct-to-cath lab" system relies on the hospitals having specially trained paramedics who can diagnose heart attacks without the help of emergency room doctors. Most hospitals, while they have been able to reduce their response times from 110 minutes to less than 80 minutes, do not have the resources to specially train paramedics or to have a cath lab in house.

Paramedics and cath lab doctors do have to be careful if it appears that the patient could be suffering from another medical condition such as a pulmonary embolism. These patients require extra testing to determine what medical action is needed.

I hope that more hospitals begin to explore the "direct-to-cath-lab" system. Employing such a system could help prevent countless deaths. Though it is still within experimental stages, this system should continue to be studied and tested. If you are at risk for a heart attack, check out your local hospital and find out whether they have a "direct-to-cath-lab" system. If you think you may be having a heart attack, call 911 immediately - only half of people having a heart attack call 911, and can wait up to two hours before seeking medical attention.

Dumping and Transfer Trauma: Wrongful Discharge Abuse on the Rise

jfisher@protectingpatientrights.com (blog Author)35538 — Wed, 21 Jul 2010 08:00:00 EST

According to the U.S. Administration on Aging, the number of nursing home complaints for wrongfully discharging patients in these ways has DOUBLED over the past ten years. Dumping and Transfer Trauma are two types of nursing home abuse that, although often overlooked, are quickly becoming an epidemic. Dumping and Transfer Trauma are similar in that they are two types of abuse that stem from wrongfully discharging a nursing home resident that is in desperate need of care.

Dumping is a term used to describe when nursing home facilities refuse to re-admit a Medicaid patient after they have had to go to the hospital. Patients who’ve been “dumped” have nowhere else to go and the hospital they have just come from must then find them a bed in another nursing home or in a shelter. Transfer trauma refers to the trauma "often experienced by transferring an elderly patient to another facility". In most cases, although patients have become comfortable in their facility’s surroundings, they are transferred to another nursing home due to a change from private insurance to Medicaid. Oftentimes, this drastic change results in the resident suffering from severe depression and anxiety.

It is illegal for your nursing home to discharge you or a family member simply because you are on Medicaid. If you have a complaint against a nursing home for wrongful discharge, you do have options. The New York State Division of Quality and Surveillance for Nursing Homes and Intermedicate Care Facilities (DQS) is responsible for investigating complaints and incidents against nursing homes in New York State. Complaints and incidents may be submitted by fax (518-408-1157) or by mail to: Centralized Complaint Intake Unit, 161 Delaware Avenue, Delmar, New York 12054. You can also call the NYS Department of Health's Nursing Home Complaint Hotline at 1-888-201-4563, available 24 hours a day, 7 days a week.

The most serious complaints and incidents require Department investigators to conduct interviews, review medical records, and other facility documentation, and perform other activities on-site at the nursing home. If an investigation determines that any of the allegations did occur, then the allegation is sustained.

The investigation will also determine whether a nursing home has failed to meet federal or state regulations. In cases where the Department of Health determines that the nursing home violated a regulation, the Department will issue a citation to the nursing home. The nursing home must then submit a plan of correction that is acceptable to the Department of Health and correct the deficient practice.

Additionally, the State Office for the Aging (SOFA) employs an ombudsman in each county of New York. An ombudsman is an advocate for residents of nursing homes and assisted living facilities. Ombudsman provide information about how to find a nursing home that is right for you or your family member and what to do to get quality care. The ombudsman can also assist you with a complaint against a nursing home. The State Office for the Aging can be reached at 1-800-342-9871.

If you or a family member have been wrongfully discharged from your nursing home facility, file a complaint immediately and consult an attorney. You do not have to put up with being "dumped" or suffer from transfer trauma after being wrongfully discharged.

New Report Confirms Inadequate Staffing Leads to Nursing Home Abuse

jfisher@protectingpatientrights.com (blog Author)35455 — Tue, 20 Jul 2010 08:00:00 EST

Inadequate staffing may be the number one cause of elder abuse within nursing homes. Without enough staff to care for all residents, residents may go without the needed food, water, and medical care that they desperately need.

Nursing home residents need to receive adequate amounts of food and water to avoid dehydration, poor nutrition, and renal failure. A study by the Institute of Medicine found that understaffing in nursing homes has a large impact on residents' diet and nutrition. According to the Institute, in those nursing homes where the staff to resident ratios were small, not all residents received needed helped during meals, and resulted in a large number of residents suffering from dehydration and poor nutrition.

Furthermore, many nursing home residents need constant nursing attention to ensure that they do not develop medical problems. In many cases, residents need to be turned, moved, or given skin assessments to avoid developing pressure ulcers or from forming deadly blood clots. There have been an alarming amount of recent cases in which New York nursing homes have been found liable for elder abuse after a resident died or was injured due to inadequate care. In every case, inadequate staffing was named as a contributing factor to the cause of the abuse.

A new report by federal health agents supports these assertions. The report, which will be presented to Congress later this month confirms that understaffing contributes to malnutrition, dehydration, and medical problems among nursing home residents. It also recommends that guidelines are put in place that would require nursing homes to hire larger numbers of nurses and nurses' aids and would require nurses and nurses' aids to spend a predetermined amount of time caring for each resident.

Finally evidence is emerging that will hopefully help stop the abuse occuring in nursing homes! Although the report has not yet been presented to Congress, we can only hope that they will stop and listen. We should get behind this report, and support any subsequent legislative acts that may follow from its presentation. Unfortunately, elder abuse and understaffing is far too common within New York state, and we need to do all that we can to stop current abuse, and prevent any future occurrence. If you suspect abuse within a loved one's nursing home, do not be afraid to report your suspicions to law enforcement, and to consult with an attorney to become informed of the legal remedies available to you. Elder abuse may be prevalent, but it does not have to go unreported or unpunished!

Doctors and Nurses Arrested In Massive Medicare Scam

jfisher@protectingpatientrights.com (blog Author)35336 — Sat, 17 Jul 2010 08:00:00 EST

Ninety-four people were arrested and charged yesterday for filing close to 4,000 false Medicare claims totaling around $251 million dollars. Among those charged were numerous doctors and nurses. The arrests were part of a massive Medicare bust coordinated throughout New York City, Baton Rouge, Miami, Detroit, and Houston.

Wiretaps revealed that doctors and nurses gave kick-back payments to patients and undercover officers in exchange for using their Medicare numbers during medical visits. In many cases, those involved paid patients to receive unnecessary medical procedures and tests. In other cases, services were never rendered, yet were still billed. Medicare scams such as these, cost the federal government billions of dollars each year that then must consequently be absorbed by tax payers.

Bravo to law enforcement for catching those involved! It disgusts me that doctors and nurses took part in these scams. As a patient, if your doctor or nurse ever tries to offer you money or other rewards in exchange for using your Medicare information, or to receive unnecessary medical procedures, inform your local law enforcement immediately! Hopefully, the government and law enforcement will continue to crackdown on these types of scams and these arrests will send a message to doctors and nurses that criminal behavior such as this will not be tolerated.

Strong Link Between Fibromyalgia and Suicide

jfisher@protectingpatientrights.com (blog Author)35330 — Fri, 16 Jul 2010 08:00:00 EST

Do you suffer from chronic, unexplainable pain? Has your doctor diagnosed you with Fibromyalgia? You may be at an increased risk of suicide, liver disease, and stroke. According to Danish researchers, a new study of death rates of women diagnosed with Fibromyalgia revealed that women diagnosed with this condition were ten times more likely to commit suicide than those not diagnosed with the condition. They also found a "higher than average" risk of death from liver disease and strokes.

Doctors differ in their opinions of why suicide rates may be higher in those diagnosed with Fibromyalgia. Some physicians assert that Fibromyalgia is really a manifestation of psychiatric conditions, such as anxiety, depression, and mood disorders. Others assert that the great pain associated with Fibromyaligia may lead those diagnosed to commit suicide in order to end the pain. Still others argue that the medications prescribed for the condition may be leading to an increased suicidal risk in these patients.

The researchers and physicians are not sure why patients with Fibromyalgia may be at a higher risk for liver disease and stroke. However, some say that research shows that patients with Fibromyaligia tend to be of greater weight, and exercise less due to the chronic pain that they suffer. This may lead to an increase in liver and heart disease.

Whatever the reason, this study should send a strong message to physicians with patients diagnosed with Fibromyalgia to evaluate their patients for pre-existing psychiatric conditions, to ask their patients regularly whether they having thoughts of suicide, and to monitor their condition carefully. They also need to monitor their patients' liver functions, and to encourage their patients to exercise as much as possible.

If you have been diagnosed with Fibromyalgia, don't rely on your doctor alone to monitor your condition. If you are having thoughts of suicide, or severe depression, consult your doctor right away. Make sure that you and your doctor evaluate the suicide risks in any medications that you are taking, and don't be afraid to go to a friend if you are feeling sad. There have been great strides made in Fibromyalgia treatment in recent years. There are treatments that can help ease the effects you feel, and you never have to suffer alone.

Are "Meaningful Use Rules" Not So Meaningful Anymore?

jfisher@protectingpatientrights.com (blog Author)35251 — Thu, 15 Jul 2010 08:00:00 EST

In order to qualify for Medicare and Medicaid incentive payments available through the 2009 federal stimulus package, health care providers must demonstrate they are making "meaningful use" of electronic health records (EHR) within their facilties.

According to experts, private healthcare providers that purchase and utilize electronic health record systems and can demonstrate that they meet the "meaningful use" standard, can receive "up to $44,000 per doctor in reimbursement funds through Medicare and $63,750 under Medicaid" beginning next year, while hospitals could receive "millions" in reimbursement funds.

On Monday, the U.S. Centers for Medicare and Medicaid Services (CMS) finally released its final version of the guidelines detailing the reporting measures that must be taken by healthcare providers to qualify for these incentives over the next four years. Surprisingly, the new standards signifigantly lower the bar of the measures that physicians and other healthcare providers must take to receive such reimbursements. For example, the number of measures that must be taken was reduced from 90 to 44 and providers must only electronically report three of such measures that were taken.

Supporters of the change argue that the old rules were too inflexible and "meaningful use" of EHRs was unattainable. However, others say that the reason for the reduction in measures is due to the fact that CMS itself "has no way to receive reports electronically much of the time". Opponents also argue that the final rules "do little to promote the electronic exchange of EMRs between hospitals and among states". Instead, these issue will not be dealt with until later "phases" of the rules are released.

What do you think of the reduction in measures that healthcare providers must complete in order to receive reimbursements? I personally think that the new rules may have both a positive and negative effect on patients. Due to the relaxation of the rules, physicians may be less likely to take certain lifesaving measures that the old rules required the physician take. For example, the old rules required that 50% of all patients 50 years old and over had to be sent electronic reminders for care management. The new rules now only require that 20% of all patients 65 and over be sent reminders. Those reminders could potentially save someone's life. On the other hand, the new measures require that healthcare providers must implement EHR systems by 2015 or face monetary penalties. I think that this is a good thing, as I believe that the implementation of EHR systems may improve patient safety, quality management, and outcome reporting. Hopefully, phases II and III of these new rules will iron out any problems that exist in the new rules, and EHR systems will become an important and invaluable part of the healthcare world.

True or False? Doctors Are Unwilling to Report Impaired or Incompetent Colleagues

jfisher@protectingpatientrights.com (blog Author)35164 — Wed, 14 Jul 2010 08:00:00 EST

Sadly this is true.

A new study reveals that work-place monitoring of the competency and sobriety of physicians is severely lacking. According to the study, although your doctor may be impaired or incompetent, his or her colleagues are not likely to report him or her to the proper authorities. Conducted by a team from Massachusetts General Hospital in Boston, the study used data from a 2009 national survey of about 3,000 physicians practicing in anesthesiology, cardiology, family practice, general surgery, internal medicine, pediatrics and psychiatry.

Its results, published in the Journal of the American Medical Association, and authored by Harvard Medical School researcher, Catherine DesRoches, found that although 17 percent of doctors surveyed had direct knowledge of a colleague being impaired by drugs or alcohol, or incompetent, they did nothing to report them. More than one-third of all 3,000 physicians surveyed said that they felt "no professional committment" to report an impaired or incompetent colleague.

According to the study, physicians stated that they failed to report their impaired or incompetent colleagues because they believed that (1) some else was going to address the problem, (2) the problem could not be fixed, or (3) that the punishment given to their colleague would be too severe.

Interestingly, those physicians most likely to report their colleagues were less experienced, and generally had only been working for ten years or less. In contrast, those physicians that had been practicing for twenty years or more felt that they "had less of a responsibility" to report impaired or incompetent physicians.Futhermore, those physicians in a solo or two-person practice were extremely unlikely to report an incompetent colleague - less than half of such physicians surveyed had reported a colleague that they knew to be impaired or incompetent.

I think that these physicians' behavior is absolutely appalling. I believe that when you are responsible for the health and well-being of others, as physicians are, you have a heightened duty to ensure that you protect patients (whether or not they are your own) from colleagues that may cause them harm due to impairment or incompetence. Physicians go through a lot of training and education to be within the medical profession, and not only are they in the best place to recognize incompetence and impairment, but should demonstrate that they are intelligent enough to step up and report a colleague if need be. It is discouraging that the people that we trust our health to may naive enough to think someone else will report an impaired or incompetent physician, or arrogant enough to think that it isn't their problem. While it is encouraging that less experienced physicians may report their impaired or incompetent colleagues, it is not enough to rely on their willingness alone. Physicians that have been around for twenty or more years can not just continue to stand by and wait for their incompetent or impaired colleagues to commit malpractice. They need to remember their Hippocratic Oath to "keep the sick... from harm and injustice". Those doctors that do stand by and wait for malpractice to happen, may just be incompetent themselves.

A Surprising Mistake that Your Physician May Make When Treating You

jfisher@protectingpatientrights.com (blog Author)35096 — Tue, 13 Jul 2010 08:00:00 EST

What is the surprising mistake that many negligent physicians make when treating their patient? They don't actually review the results of the tests that they ordered that indicate that there is something medically wrong with the patient. According to the Medical Liability Mutual Insurance Company (MLMIC), one of the largest insurance providers to physicians in New York State, this negligent act happens more often than one would expect. In fact, it is so prevalent that MLMIC sends out information packets to the doctors that they insure detailing this and other common negligent acts that physicians make.

One such information packet recently contained the booklet, "Proactive Risk Management Program I", which details numerous case studies of mistakes commonly made by physicians. The very first case study describes how a physician negligently did not review a report that indicated that his patient had bladder cancer. It has been summarized here:

A 58-year old male presented to a urologist with a history of having painless, yet large amounts of blood within his urine. Although a urinalysis (basic test of the urine) was normal, a test to detect abnormal cancer cells in the urine was also ordered. The patient was given an appointment to return to the office in two weeks for a follow-up. The urologist's letter to the physician that referred the patient indicated that further tests for bladder cancer would only be done if the bleeding recurred or the report to detect abnormal cells was positive.

The report for the abnormal cells was received in the office from the laboratory and was placed in the patient's chart by the secretary, since the patient was to be seen in the office that day. The patient never appeared for the appointment and the chart was filed. The urologist never reviewed the report that indicated that there were suspicious, precancerous cells present in the patient's urine.

The patient presented to the office seven months later complaining that he had passed tissue during urination. At this visit, the urologist finally noticed the abnormal laboratory report. After further testing, a pathology report revealed that a tumor was now present within the patient's bladder. He ultimately had to go through extensive treatment. A lawsuit was brought against the urologist for a delay in the diagnosis of cancer.

Unfortunately, this situation happens all too often. One would think that a physician would always read the results of a test that he had ordered for his patient. However, that is not the case. Some physicians do not always hold up to the high standard that we set for them and this case study should serve as a lesson to you as a patient - Don't just think that your doctor is automatically going to read the medical report because that is what good doctors do. Remind them about the report, make sure that he or she reads it, and always go into the office for a follow-up visit if it is suggested. Even if you may feel silly asking your physician if he or she read your test results, do it anyway. It could save your life!

Click to Donate Organ: Long Overdue

jfisher@protectingpatientrights.com (blog Author)35125 — Tue, 13 Jul 2010 08:00:00 EST

New Yorkers can now register online to become an organ donor, which should streamline the organ donation process and hopefully save lives. On July 8, 2010, Governor Patterson signed the Electronic Signature Act, eliminating the need to download enrollment forms and mail them the old-fashioned way.

There are 9,911 residents in New York awaiting an organ transplant, but less than 13% of all eligible drivers are enrolled in the state organ donor registry. To become an organ donor, go to www.savelivesnewyork.org, or also try www.nyhealth.gov/donatelife.

The next law relating to organ donation is known as "presumed consent", which presumes all residents of New York give their consent to organ donation unless they specifically object either on the back of their driver's license or through the online registry. I strongly support the presumed consent law as it will exponentially increase the number of organ donors, many of whom just don't take the time to register for organ donation online.

Lawyer takes Euthanasia Debate Overseas

jfisher@protectingpatientrights.com (blog Author)34954 — Mon, 12 Jul 2010 08:00:00 EST

Wesley J. Smith, an American attorney and award-winning author, will be traveling to Tasmania to try and prevent the legalization of voluntary euthanasia within the Country. His trip follows Tasmanian Attorney General, Lara Giddings', announcement that she will be investigating a private legislative member's bill legalising the act. According to international experts, most Tasmanians support the legislation. Smith, Senior Fellow in Human Rights and Bioethics at the Disovery Institute and lawyer and consultant for the International Task Force on Euthanasia and Assisted Suicide, hopes that his visit will sway Tasmanians to rethink their viewpoints. The long-time anti-euthanasia advocate argues that euthanasia, when legalized, is often practiced without impunity on young children, mentally ill patients, and the disabled.

Voluntary euthanasia is the practice of ending one's life in order to end some type of pain or suffering. In the United States, voluntary euthanasia is legal in Oregon and Washington. When such a practice is done with the help of a physician, it is usually called "assisted suicide". Although in 1996 the 2nd US Circuit Court of Appeals declared New York State's law criminalizing physician-assisted suicide for terminally ill patients unconstitutional, the decision was overturned by the United States Supreme Court. What do you think about physican-assisted suicide? Should a physician be liable to the deceased's family for medical malpractice if he helped the deceased commit suicide?

I respect Mr. Smith's decision to go to Tasmania and argue his viewpoints to the Tasmanian Legislature. However, it really has nothing to do with the topic of euthanasia at all. As an attorney, he has a duty not just to his clients, but to also devote his life to doing public works and to be passionate about the type of law that he practices. When you choose an attorney, a helpful indication that he or she will be successful is not just his client base or the firm that he or she works for. Look at one of the most important factors - does he have a passion for the type of law that he practices? If he does - then he'll most likely be passionate about your case.

John Fisher is excited to join Mainetti, Mainetti & O'Connor, P.C.

blog@www.protectingpatientrights.com (news Author)16102 — Sat, 10 Jul 2010 08:00:00 EST

John Fisher is excited to announce that he will join the law firm of Mainetti, Mainetti & O'Connor, P.C. on Monday, July 12, 2010.

After 14 years as a partner with Powers & Santola, LLP, John will be accepting referrals of serious and catastrophic personal injury and medical malpractice claims at Mainetti, Mainetti & O'Connor, P.C., a prominent personal injury law firm in the mid-Hudson Valley. John will continue to devote his practice to the representation of victims of negligence in medical malpractice, nursing home neglect, legal malpractice and general personal injury cases.

John will appreciate referrals from lawyers throughout the United States and he will continue to pay generous referral fees as permitted under New York law.

Can you sue for your child being born?

jfisher@protectingpatientrights.com (blog Author)34858 — Fri, 09 Jul 2010 08:00:00 EST

And I don't mean because they talk back to you, don't eat their vegetables, and sneak out of the house late at night. There is a relatively unique type of medical malpractice lawsuit, known as a "wrongful birth" suit. These suits are usually brought by parents that have given birth to children with severe genetic or congenital abnormalities. These disabillities can include, but are not limited to diseases such as spina bifida or severe retardation. In these cases, the plaintiffs argue that the disability should have been detected by obstetricians, and if they (the plaintiffs) had known about the condition, they would have terminated the pregnancy. Most cases are settled out of court, and damages usually consist of money settlements in amounts that will allow the plaintiffs to care for their children's medical expenses.

The States are split on whether or not parents have a cause of action for wrongful birth. Twenty-eight states recognize the claims, and nine states prohibit them outright. In New York, damages for emotional stress, can not be recovered.

Personally, these types of suits make me uncomfortable. They are usually very hard to prove, and in all cases, the parents of the child will have to testify on the stand that they would have aborted their child. If you have a child with a disability, such as spina bifida, who may be paralyzed from the waist down, but is perfectly fine mentally, the child may be forced to hear his parents say he is essentially "better off dead". Furthermore, in NY, bringing these cases are essentially pointless. Since the plaintiffs can not recover damages for pain and suffering, the only damages they can recover are for medical expenses. However, there is really no point to that since in NY, there already are State and Federal programs that help parents pay for medical expenses for their disabled child.

What do you think about "wrongful birth" suits? Do you think New York should change its laws to allow compensation for emotional distress in these cases? Or do these cases also make you uncomfortable. Post me a comment - I'd love to know what you think!

Avandia Dispute: good or bad for consumers?

jfisher@protectingpatientrights.com (blog Author)34874 — Fri, 09 Jul 2010 08:00:00 EST

Since 2005, there has been increasing evidence that the blockbuster diabetes drug, Avandia, increases the risk of cardiovascular problems, such as heart attack, a major cause of death among diabetics. Avandia is still on the market and scientists are battling over its safety. Of course, the drug's manufacturer, GlaxoSmithKline assures consumers that Avandia is safe and millions of diabetics take Avandia to control blood sugar levels. What is the stance of the Food and Drug Administration on this controversial issue and does the risk-reward ratio justify the continued use of Avandia? Do the cardiovascular risks of Avandia outweight its benefits to consumers?

The Food and Drug Administration does very little to monitor the safety of drugs, such as Avandia, after they are approved by the FDA. Independent researchers are usually the first to reveal potential safety hazards of medications, such as in the case of Merck's anti-inflammatory drug, Vioxx. On Tuesday, the FDA is scheduled to hold an advisory panel hearing to evaluate the risks and benefits of Avandia. THIS IS ABOUT FIVE YEARS TOO LATE!

Avandia was approved by the FDA in 1999 and became a best seller in short order. Safety concerns were raised by Glaxo in 2005, but those safety concerns were not shared by the FDA with the public. Fortunately, a cardiologist at the Cleveland Clinic, Steven Nissen, did his own investigation and found that consumers had a 43% higher risk of heart attack with Avandia and the New England Journal of Medicine published his analysis. As a follow up to Nissen's analysis, the FDA required a warning on Avandia's label.

The FDA is useless at monitoring drugs for safety, as evidenced by the Avandia story. Once the FDA approves a drug, it does nothing to monitor the safety of the drug even though risks emerge as usage of the drug expands. It's tough to admit that the drug is safe when it is approved and then later admit that the FDA was wrong. The FDA and Glaxo should make available to the public all of the data and investigation materials that they possess relating to Avandia. As stated in today's USA Today, "Patients shouldn't have to depend on outside whistle-blowers trolling the internet to learn about potential drug dangers."

Further proof that the Joint Commission is useless at enforcing safety at hospitals

jfisher@protectingpatientrights.com (blog Author)34877 — Fri, 09 Jul 2010 08:00:00 EST

According to data revealed by Medicare, heart attack deaths in hospitals has dropped dramatically in the last seven years. The author of the study, Yale cardiologist, Harlan Krumholz, stated that "We're in the midst of a remarkable period in American medical history: seeing dramatic improvements in care of heart attack patients." Death rates at 4,569 hospitals that treat Medicare patients who suffer heart attacks fell by almost half a percentage point from a national average of 16.6 percent in 2009 to 16.2 percent. What does this mean? Unfortunately, very little.

A USA Today analysis of the data showed that more than two-thirds of the hospitals with the highest death rates won accreditation from one of a handful of groups that strive to improve hospital quality. The biggest, the Joint Commission, accredits 79% of Medicare-participating hospitals. The Joint Commission accredits hospitals with the highest death rates. Thus, the question must be asked, what is the purpose of the Joint Commission if the worst hospitals are accredited despite abysmal safety standards?

Federal agencies, such as the Joint Commission, do very little, if anything, to ensure patient safety at American hospitals. The Joint Commission is little more than a federal agency that is understaffed and has no effective way to monitor patient safety issues at hospitals.

New Link Found Between Cerebral Palsy and Fertility Treatments?

jfisher@protectingpatientrights.com (blog Author)34719 — Wed, 07 Jul 2010 08:00:00 EST

Does the use of fertility drugs increase the risk of giving birth to a baby with cerebral palsy? Denmark researchers say yes. The study, published in the medical journal, Human Reproduction, yielded results showing that babies born with the assistance of fertility drugs were two times more likely than babies born without the use of fertility drugs to have cerebral palsy.

The study looked at data "on all 588,967 children born in Denmark from 1995 to 2003". 33,139 of those children were born as a result of fertility treatments such as in vitro fertilization and ovulation induction. According to the study, as of 2009, 1,146 of those child have been diagnosed with cerebral palsy. According to the researchers, in vitro fertilization was " 2.3 times more likely to lead to a cerebral palsy birth". Ovulation induction was "1.5 times more likely" to lead to a cerebral palsy birth.

However, this research does not definitely demonstrate that all fertility treatments cause babies to be born with cerebral palsy. According to a recent news article on the findings, "when researchers accounted for multiple births and preterm deliveries, which are frequently associated with assisted conception, the higher rates of cerebral palsy disappeared". This means that if single embryo fertility treatments are more frequently utillized, the risk of long-term health problems may decrease dramatically.

If you are either already taking fertility drugs, or are seriously considering it, make sure that your doctor informs you of all of the risks associated with the treatment. If your child has been both with cerebral palsy and you took fertility drugs during pregnancy, there may be a chance that it was caused by those drugs.You are not without redress. Call an attorney and find out what legal rights you may have.

Cerebral palsy may also be caused by a number of things including birth trauma during labor, suffocation before birth (asphyxia), other lack of oxygen to the brain (Hypoxia), or other complications before or after birth. Many times, cerebral palsy can be caused by a doctor's error during delivery.

If your baby was born with cerebral palsy, a mistake by your physician may also be the cause and you are not without redress. Again, call an attorney for you and your child and find out the legal remedies available to you!

Yet Another Medical Malpractice Myth

jfisher@protectingpatientrights.com (blog Author)34681 — Tue, 06 Jul 2010 08:00:00 EST

MYTH: Medical Malpractice Insurance Rates Are Rapidly Increasing

Some people will have one believe that the ability of New York doctors to practice medicine is in serious jeopardy. According to these individuals, rapidly increasing insurance premiums are driving them out of business, causing them to leave high risk specialties, and to practice defensive medicine.

However today, New York State Insurance Superintendent, James J. Wrynn. announced that the first medical malpractice insurance rate increase for New York doctors to take place in three years will only amount to an increase of five percent. The change follows two years of rate freezes authorized by the New York State Legislature.

The change will impact those physicians that obtain their insurance from Medical Liability Mutual Insurance Company (MLMIC), Physicians' Reciprocal Insurers (PRI), Hospitals Insurance Company (HIC), and Academic Health Professionals Insurance Association (Academic).

MLMIC, created in the 1970’s by the Medical Society of the State of New York to replace private carriers that had fled the costly medical insurance business is said to have spear-headed the campaign to keep insurance rates down as they are the largest insurer in New York State.

I believe that this is good news for both doctors, malpractice victims, and patients. The only slight increase in rates may ease some doctors' fears of being unable to afford insurance, and will no longer be ane excuse to be used by physicians that assert that the legal system, attorneys, and insurance companies are out to get them. If the assertion by physicians that insurance rates are driving them out of business are true, they can now rest assured that any increase is very small. Perhaps they can now stop debating about insurance rates, and just concentrate on practicing safe medicine.

What will you do if your hospital closes?

jfisher@protectingpatientrights.com (blog Author)34611 — Mon, 05 Jul 2010 08:00:00 EST

Unfortunately, due to our weakened economy, a bad job market, and poor planning, many hospitals around New York may soon be closing their doors for good. Closures due to bankruptcy, such as that of St. Vincent's Manhattan Hospital, may result in a multitude of alarming consequences that may cause both medical malpractice claims to rise and render the task of of collecting already litigated settlements impossible.

First, hospital closures may result in a terrifying loss of emergency rooms. That would mean that patients with critical injuries would have no where to go in times of medical crisis.Second, hospital closures could also result in numerous victims of medical malpractice to be unable to collect the settlements that juries have said they are entitled to collect. In the case of St. Vincent's, their bankrupcy filing has already caused malpractice suits and settlement recoveries to stall. Third, when a hospital closes, there is always high probability that medical records with be lost or destroyed.

For those already in malpractice litigation, this might mean that they will no longer be able to prove that the hospital provided them with negligent care, as their medical records are most likely a vital part of their case. For others, it could mean the loss of information vital to their well-being including family history, vaccinations, and medical treatments that have worked in the past. This may lead the owners of the records to start suits against the hospital for the loss, and medical malpractice suits may rise overall.

If your hospital is going to close or has closed, you are not without options or redress. I may be able to help you with new or ongoing malpratice litigation involving these hospitals and address problems concerning your medical records. While it may be impossible for me to fix the economy, or make these hospitals re-open their doors, I can inform you of your rights, and may be able to help you obtain the settlement that you are entitled to from a hospital that is closing. It is imperative that you learn your rights as soon as possible, as it may be your hospital that is closing its doors next!

The Court of Appeals Turns Judicial Precedent On It's Ear!

jfisher@protectingpatientrights.com (blog Author)34530 — Fri, 02 Jul 2010 08:00:00 EST

Recently, New York's highest court ruled that estates can sue estate-planning attorneys for malpractice, dramatically overturning decades of judicial precedent.

On June 17th, the New York Court of Appeals unanimously held that privity exists between an estate and its estate-planning attorney, and that the attorney can therefore be sued for damages resulting from" the negligent representation in estate tax planning that causes enhanced tax liability" by a personal representative of the estate. A lack of privity, which is a legal term describing a contractual or near-contractual relationship, had previously shielded negligent attorneys from malpractice suits.

The decision arises from the case of Estate of Saul Schneider v. Finmann. In April 2000, Saul Schneider, now deceased, purchased a $1 million dollar life insurance policy. Over several years, he transferred ownership of that property from himself to an entity of which he was principal owner, then to another entity of which he was principal owner. In 2005, he then transfered the ownership back to himself. In October 2006, at his death, the proceeds of the insurance policy were included as part of his gross taxable estate.This transfer then resulted in an increased amount of estate tax liability. In 2007, Mr. Schneider's estate commenced a malpractice suit, alleging that hi s estate-planning attorney negligently advised him to transfer the policy. While, the Second Department refused to set aside the state's "well-established rule" that attorneys cannot be held liable to third parties for malpractice "absent fraud, collusion, malicious acts or other special circumstances", obviously, the Court of Appeals had other ideas.

Well done, Court of Appeals! Thank you for finally joining the majority of states that recognize privity between estate and attorney! Finally, there is some type of redress for those estates who have been harmed by their negligent estate-planning attorney. For too long have these types of incompetent attorneys been hiding behind an outdated
law! Although this decision could pose some difficulties for attorneys that lack knowledge in tax and estate laws, they should not be the ones handling these types of cases.

What effect does this have on medical malpractice attorneys and their clients? Probably nothing, but it does re-enforce the message that all attorneys, no matter what their practice area is, must treat their clients' cases with care. I therefore applaud the Court of Appeals' decision.

Justice done in Jayant Patel Case?

jfisher@protectingpatientrights.com (blog Author)34535 — Fri, 02 Jul 2010 08:00:00 EST

A physician, first disciplined for medical malpractice in New York, is finally convicted of manslaughter and causing grievous bodily injury. On Thursday, July 1st, surgeon, Jayant Patel, was sentenced to seven years in an Australian prison for performing surgeries that left three patients dead, and one without a bowel. Patel had an almost thirty-year history of malpractice in the United States after commiting numerous surgical errors in both New York and Oregon. In 1982, Patel was first sanctioned in Buffalo, New York for "professional misconduct" and " practicing medicine with incompetancy". His medical license was suspended for six months. Patel appealed the decision, his license was reinstated, and he was placed on probation for three years.

In 1988, Patel moved to Oregon and gained employment performing surgeries again after showing various hospitals glowing references. What followed was a horrific string of botched surgeries, resulting in numerous patients deaths, and in one case, a man almost losing his bowel due to a surgery "done backwards". In 2000, "Dr. Death", as he soon began to be called, was fired from the hospital at which he worked and he was disciplined by the Oregon Board of Medical Examiners. In 2001, Patel was forced to surrender his New York State medical license.

In 2003, Patel again began to perform surgeries in Bundaberg, Australia after he again gave employers glowing references. Again, Patel left death, and injury in his wake. Four patients, in a showing of horrific and gross malpractice on Patel's part, died, and a healthy man was disembowled. Patel fled to the United States in 2004, but was extradited back to Australia in 2008 to face three charges of manslaughter, five charges of causing grievous bodily harm, four negligent acts causing harm, and eight charges of fraud. After pleading not guilty, he stood trial and was convicted on June 29, 2010.

Finally, the family members of the deceased, and Patel's victims can see that some justice has been done! I congratulate the Australian prosecutors on a job well-done in getting a conviction in this case. However, was it enough? It is extremely disturbing that it took so long for Patel to be criminally punished, and that he was never criminally punished in the United States. Furthermore, his sentence seems extremely lenient in comparison to the horrific nature of his crimes. What do you think? Should he have been sentenced more harshly?

This case should serve as a warning to patients, hospital, and their administrators to always check out your doctors' credentials. Always check to see if your physician has been sanctioned or otherwise disciplined by your State's Board, and be wary of doctors that seem to have done a lot of traveling between states. Always try and get a reliable reference for your doctors whether you are a hospital or a patient. NEVER take one glowing reference as surefire evidence of his or her competence.

Don't Change Your Medication Dosage Until You've Read This!

jfisher@protectingpatientrights.com (blog Author)34448 — Thu, 01 Jul 2010 08:00:00 EST

Paxil. Lexapro. Zoloft. Celexa. These medications, known as Selective Serotonin Uptake Inhibitors (SSRIs), while they have made millions of people's lives manageable, can just as easily destroy your health and well-being if not taken with care.

If you are part of ten percent of the population currently taking antidepressants or anti-anxiety medications, make sure to research your prescribing physician carefully, and don't be afraid to question his decisions about increasing or decreasing your dosage.

Increasing your medication beyond the recommended dosage could result in severe side effects such as mood swings, painful migraines, and increased depression. discontinuing your medication could result in you suffering debilitating withdrawal symptoms that could range anywhere from feeling like you have the flu to seizures. Known as SSRI Discontinuation Syndrome, it occurs in approximately 20 percent of patients, and can result in side effects that could plague you for months.

Recently, a close friend learned about SSRI Discontinuation Syndrome the hard way. Having suffered from anxiety since she was a child, she had been on Paxil for over ten years. Over a period of years, her doctor had increased her dosage from 20 mgs to 40 mgs because it seemed to have stopped working periodically. However, after a number of years, her anxiety became unbearable, She consulted another physician who increased her dosage to 60 mgs, an amount that is well over the recommended dosage. As a result, she began to suffer from severe mood swings, increased depression and anxiety, and debilitating migraines.

She consulted another physician who decreased her dosage from 60 mgs to 30 mgs stating that she was suffering from essentially an overdose of Paxil. The rapid decrease in medication caused her migraines to worsen, suffer from uncontrollable shaking, and eventually she began to have seizures. After an extended stay in the ICU, and a specialized seizure unit, and being slowly tapered off of the medication by a new doctor, the seizures stopped. Now on a new medication, she is on the road to recovery.

Don’t let this happen to you! Beware of physicians that continue to increase your medication despite that fact that it no longer seems to work or who advise you to abruptly discontinue your medication. Ask your physician to slowly taper you off of your medication over a series of weeks or months if necessary. Many SSRIs come in liquid form just for this purpose. If your physician refuses, it’s definitely time to find a new doctor.

91% of docs overtest to duck lawsuits--fact or fiction?

jfisher@protectingpatientrights.com (blog Author)34308 — Tue, 29 Jun 2010 08:00:00 EST

The author of a new study of 1,231 physicians concluded that 91 percent of physicians answered "yes" when posed the question: Do physicians order more tests and procedures then patients need to protect themselves from malpractice suits? According to the author of the study, doctors overwhelmingly believe they overtest and overtreat to protect themselves from malpractice lawsuits.

Assuming this is true, the question must be asked, Is that a bad thing? In countries using socialized medicine where the government pays for medical care, defensive medicine is much less common than in the United States. If a routine colonoscopy screening examination for cancer will detect cancer only once in every one-hundred tests, the test is simply not cost-effective. For the 99 percent of the time that the test produces no positive result (when there is no colon cancer), the test is viewed as a waste of money by the insurance industry and by governments in countries with socialized medicine.

However, in the 1% of cases where a routine colonoscopy screening examination reveals the presence of colon cancer, the test is life-saving and life-altering for the patient. Was the screening examination a waste of money for the patient whose life was saved by the test? Of course not! Defensive medicine plays an important role in diagnosing medical conditions, such as colon cancer, in cases where the patient has no signs or symptoms and feels perfectly healthy.

Are unnecessary tests and procedures bad for everyone? Yes--but defensive medicine can be life-saving.

OB/GYNs oppose midwife act

jfisher@protectingpatientrights.com (blog Author)34309 — Tue, 29 Jun 2010 08:00:00 EST

ACOG, the association that represents more than 4,000 OB/GYNs in New York, strongly opposes the Midwifery Modernization Act, which is currently before the New York legislature for a vote. The legislation would eliminte the requirements for midwives to enter into a written practice agreement with physicians in order to be able to practice in the state. The OB/GYNs argue that without the written practice agreement requirement there is no clear responsible party for a patient's care.

The Medical Liability Mutual Insurance Co., a medical malpractice insurance company for physicians in New York, has stated that without the practice agreement, it would not insure midwives. The OB/GYNs adn MLM believe the new legislation would risk patient safety.

This is a big to-do about nothing. In almost all of the lawsuits I have handled against midwives and nurse midwives, there has been no written practice agreement or written practice protocol between the midwife and the "collaborating physician". Although New York's Education Law requires a written practice agreement and a written practice protocol between the midwife and her collaborating physician, there are few nurse midwives who comply with this statutory requirement. In fact, IT IS IGNORED IN MOST CASES!

Most midwives cannot answer what a written practice agreement is, and some cannot even answer whether they have one with their "collaborating physician". The reality for most midwives is that they already practice independent of medical "collaboration" and there is virtually no oversight or supervision of midwives by physicians. For this reason, the new legislation is meangingless and will have no effect upon the practice of midwives and nurse midwives.

System Failure at the Office of Professional Medical Conduct and Physician Discipline?

jfisher@protectingpatientrights.com (blog Author)34334 — Tue, 29 Jun 2010 08:00:00 EST

A new report entitled "System Failure" detailing a study conducted by the NYPIRG, the Center for Justice & Democracy, the Center for Medical Consumers and Consumers Union asserts that while the number of complaints against doctors has risen in recent years, the number of doctors sanctioned by the Office of Professional Medical Conduct and Physician Discipline has dropped dramatically. In fact, despite a growing number of complaints, the number of doctors sanctioned has dropped to the lowest point in 15 years. According to the report, in 2009, the Office sanctioned "292 out of New York's 65,000 practicing physicians". This is 25 percent less than three years ago. However, the number of complaints filed against doctors "rose to 9,000 up 18 percent from 2005".

Does this new information indicate that there is a system failure at the Office of Professional Medical Conduct and Physician Discipline? It certainly looks that way to me. In 2008, the New York State Legislature gave the Office an increased power to investigate medical malpractice claims against physicians. Increased power should have yielded a larger number of physicians being sanctioned, not the other way around.

While it could be argued that more meritless complaints are being filed in recent years, this is unlikely. It has consistently been shown that many complaints filed in New York are well founded. In fact, between 2007 and 2009, New York had the second highest rate of serious sanctions of states with more than 40,000 physicians.

The Office should start their own investigation into this matter to ensure that negligent doctors are being sanctioned for their harmful and negligent acts, before we start to lose faith in their ability to do so.

Judge-directed Negotiations: A way to bully vulnerable victims into settlements?

jfisher@protectingpatientrights.com (blog Author)34184 — Mon, 28 Jun 2010 08:00:00 EST

A new way to handle medical malpractice cases called "Judge-directed Negotiations" may soon be emerging in courtrooms all around New York State. The practice, created by New York Appellate Judge Douglas McKeon, may or may not make hospitals more accountable for the mistakes of its physicians.

Recently backed by a $3 million dollar governmental grant, five of New York city's best-known private hospitals will join the program and create "an early disclosure program", which would supposedly require them to own up to their mistakes. Bravo to them if they actually do!

However, according to the Associated Press, using McKeon's method, cases that are not settled by these hosptials will go to a "special courtroom" staffed by judges trained in a curriculum that McKeon created. The curriculum, which McKeon calls "Medicine for Judges" is still a bit of a mystery.

The Associated Press reported that McKeon sometimes "quietly listens to heartbroken family members vent their anger" and at other times, makes "pointed comment[s] to the lawyers about how the jury could react to their arguments". While McKeon states that he is bringing "humanness" to the settlement process, this new practice may just be a way for judges to persuade vulnerable clients into settling their cases and foregoing a trial under a guise of concern for their well-being.

A recent case settled with the help of McKeon demonstrates the validity of this argument. McKeon worked for months with a man whose father was paralyzed from the neckdown due to negligent handling by hospital paramedics who were called to help him after he fell and hit his head. Although the hospital was offering a large settlement, the man felt that he needed to go to trial to "do justice by his father". However, after working with McKeon, the man abandoned his desire for a trial and took the settlement. Although McKeon has stated that he was trying to helping the man and was worried that in pursing a trial the man would have wound up with nothing, was he really just trying to save the hospital money?

Unfortunately, it appears that might be the case - McKeon's approach has been said to save hospitals up to $50 million dollars a year.

Be aware of radiation levels!

jfisher@protectingpatientrights.com (blog Author)34118 — Fri, 25 Jun 2010 08:00:00 EST

Stories are reported about patients receiving one-time excess doses of radiation from routine scans. While imaging tests can save lives, they also expose patients to varying levels of radiation. X-rays and mammograms deliver relatively low doses, while a CT scan is much higher. Other tests, such as a colonoscopy, ultrasound or a MRI, deliver no measurable levels of radiation.

You should be aware of the effects of over-exposure to radiation. Ask if the tests expose you to radiation and find out if there is a non-radiologic alternative to the test that is ordered. Make sure that your children receive the lowest dose of radiation possible.

Reducing your over-exposure to radiation tests will reduce your risk of cancer and possibly, keep you healthy.

Change on the way for New York's no-fault law?

jfisher@protectingpatientrights.com (blog Author)34032 — Thu, 24 Jun 2010 08:00:00 EST

New legislation would expand the list of injuries that allows accident victims to recover monetary compensation under New York's no-fault law. Current law in New York requires that persons injured in a motor vehicle accident prove that they have sustained a "serious injury", such as a fractured bone or disfigurement, in order to recover compensation for non-economic damages, also known as "pain and suffering".

The new law under consideration by the New York legislature would widen the list to cover additional injuries, such as an injury that requires an operation of any form. The insurance industry claims that the new legislation will increase new payouts by as much as $2 billion and increase the average auto insurance bill from $40 to $101 per year. THIS IS NONSENSE.

New York's no-fault law limits the rights of injured victims by defining a "serious injury" in terms that no jury can possibly understand (with the exception of death, dismemberment or fractures). The current law cannot be comprehended by lawyers or any jury for that matter. What constitutes a "significant limitation of use or function of a body system" is capable of many different interpretations, few of which make sense. This is way jury verdicts are often inconsistent in motor vehicle cases having the same injuries.

I applaud the efforts of the NYS Legislature to address the confusion and ambiguity of New York's definition of "serious injury", and I hope drastic changes are made.

A Prescription for Malpractice--A Great Idea!

jfisher@protectingpatientrights.com (blog Author)33918 — Tue, 22 Jun 2010 08:00:00 EST

On June 21, 2010, the Albany Times Union reported a pilot program to address medical malpractice issues underwritten by the federal government. The New York State Department of Health will join with five New York City hospitals to implement safety measures addressing medical malpractice.

Under this program, the hospitals will develop a "culture of patient safety" with four hospitals focusing on obstetrics and one hospital focusing on general surgery. If a mistake is made, the hospitals will notify the patient or their family early on, and if appropriate, offer compensation before a lawsuit begins. The program will be monitored and the results will be evaluated by Harvard's School of Public Health. The proponents of the program hope it will lead to the creation of a national model.

The editorial in the Albany Times Union observed that: "This is, clearly, a more thoughtful and challenging approach than, say, passing a law to cap malpractice awards...If the medical and legal fields can find a way to promote greater safety, admit and correct mistakes, and come to reasonable settlements, it would lay the foundation for, we would hope, better care, less practice of costly defensive medicine, lower malpractice insurance rates and reduced health care costs, including lower premiums on health care insurance."

BRAVO! Instead of adopting the culture of denial and refusing to admit even obvious medical mistakes, the approach of admitting mistakes and attempting to provide answers to patients (including, when appropriate, offering compensation) is a great solution to the problem of medical malpractice.

The medical specialty of anesthesia adopted this philosophy years ago in response to rising malpractice premiums, and their premiums have remained stable ever since. Anesthesiologists served as the role model for the pilot program operated by the NYC hospitals and the Department of Health.

Is "Tort Threat" really a jobs-killer in New York?

jfisher@protectingpatientrights.com (blog Author)33919 — Tue, 22 Jun 2010 08:00:00 EST

On June 10, 2010, the New York Post's "Post Opinion" states that New York and New Jersey are the worst states in America when it comes to the "tort threat"--the supposed burden imposed by personal injury litigation on businesses and job creation. The author of the opinion article states that personal injury lawyers are a "serious jobs-killer" and he elaborates that "when deciding where to start a business, expand operations or relocate, entrepreneurs prefer states with tort systems that discourage abusive lawsuits." The offers his opinion that "less than 15 cents of every tort-cost dollar actually goes to the plaintiffs whose injury is supposedly being compensated." The author advocates "reducing the tort threat" by limiting the rights of persons who are the victims of another's negligence.

THIS IS TOTAL HOGWASH! Businesses are leaving New York State in droves because of the enormous tax burdens imposed by New York State. Unlike most other states, New York has state and city taxes that are the highest in America that keep rising and with the State's fiscal problems, there is no end in sight. If the author of the NY Post article had bothered to ask business owners why they are leaving the State, I guarantee the answer will focus on the exorbitant tax system and not the risk of being sued.

Settlement of $900,000 of Dram Shop Case

blog@www.protectingpatientrights.com (news Author)15320 — Wed, 02 Jun 2010 08:00:00 EST

On June 1, 2010, a settlement was reached in the sum of $900,000 on the day before trial in the United States Court in the Northern District of New York, arising from the death of a 47-year old in a motor vehicle accident in the Town of Queensbury, County of Queensbury, New York on February 26, 2005. The decedent was survived by her 61-year old husband and 7-year old daughter. The settling defendants included the Estate of Jason Goodspeed and the Adirondack Bar & Grill, which was owned and operated by James Valastro.

Just after midnight on February 26, 2005, the car driven by the alleged drunk driver, Jason Goodspeed, crossed double yellow solid lines on a state highway directly into the path of the vehicle driven by the plaintiff about 1.8 miles from the Adirondack Bar & Grill. Both vehicles were demolished in the head-on collision. The plaintiff had no chance to take evasive measures to avoid the collision, and he and his wife were extricated from their car by the Town of Queensbury Fire Department. The 61-year old plaintiff sustained substantial orthopedic injuries in the crash necessitating multiple operations at the Albany Medical Center and Boston General Hospital, and his wife died four hours after the collision as a result of internal bleeding.

The alleged drunk driver, Jason Goodspeed, had a blood alcohol level of .20%, more than twice the legal limit for driving while intoxicated. The plaintiff's forensic toxicologist estimated that Goodspeed consumed 11 to 15 beers prior to leaving the Adirondack Bar & Grill at midnight, just minutes before the crash occurred, and he further opined that Goodspeed would have had the appearance of gross intoxication when he was last served beer at the Adirondack Bar & Grill based on his blood alcohol level. Eyewitnesses at the bar confirmed that Goodspeed drank beer at the Adirondack Bar & Grill for 4 hours just prior to the motor vehicle accident.

The dram shop coverage for the Adirondack Bar & Grill was limited to $1 million.

Settlement for $575,000 of lawsuit against Kingston gastroenterologist

blog@www.protectingpatientrights.com (news Author)15078 — Fri, 21 May 2010 08:00:00 EST

On Friday, April 23, 2010, our 42-year old client settled her claims against Kingston gastroenterologist, Kevin Dodd, M.D., for $575,000 arising from the defendant's failure to perform basic tests to diagnose an esophageal perforation on the same day as a balloon dilation procedure at the Kingston Hospital.

After undergoing a balloon dilation procedure by Dr. Dodd at the Kingston Hospital, our client was discharged without any complication and her only symptom was mild abdominal discomfort. Less than two hours after her discharge, our client was taken by ambulance from her home in Saugerties to the Emergency Department of the Benedictine Hospital with the complaint of severe abdominal and chest pain that she rated 10 out of 10 on the pain scale. The ER physician, Walter Soha, M.D., ordered a chest x-ray, which revealed the buildup of fluid in the lower bases of our client's right and left lungs. Dr. Soha conveyed the information to Dr. Dodd by telephone and they jointly agreed to discharge our client from the Benedictine Hospital.

Two days later, our client was taken back to the Emergency Department of the Benedictine Hospital with the same complaints of severe abdominal and chest pain. On this ER visit, the appropriate test was ordered, a CT scan of the chest, which revealed a 5 centimeter perforation (hole) in the lower part of our client's esophagus. Emergency surgery was performed at the Benedictine Hospital to repair the esophageal perforation and our client received in-patient treatment at the hospital for 16 days.

After repeated procedures on her esophagus, our client eventually required the surgical removal of two-thirds of her esophagus and later underwent procedures to relieve the chronic nerve pain on the left side of her body.

$125,000 for fractured hip of 86-year old at Ferncliff Nursing Home

blog@www.protectingpatientrights.com (news Author)15079 — Fri, 21 May 2010 08:00:00 EST

On April 22, 2010, our client, the executor of the Estate of her father's Estate, settled her lawsuit for $125,000 arising from the fractured hip of her 86-year old father while a resident at the Ferncliff Nursing ome in Dutchess County.

The decedent had a history of prior falls before his admission to the Ferncliff Nursing Home and after his admission to the nursing home and he suffered from confusion and dementia. The nursing home did not take appropriate precautions to prevent a fall despite assessing the decedent as high risk for a fall.

The decedent fell while left alone in his room in the middle of the afternoon and he underwent an open reduction internal fixation operation to surgically repair his fractured femur. The decedent was in and out of the hospital after the operation and died three months later of unrelated causes.

The plaintiff contended that the decedent's fall would not have occurred if the Ferncliff Nursing Home had taken precautions to prevent the fall, as required by its own protocols.

Troubling trend for hospitals: Infection rates increasing at hospitals!

jfisher@protectingpatientrights.com (blog Author)29962 — Wed, 14 Apr 2010 08:00:00 EST

The nation's hospitals are failing to protect patients from potentially fatal infections despite years of prevention campaigns, according to the Health and Human Service's department.

Of the five major types of serious hospital-related infections, rates of illnesses increased for three, one showed no change and one showed a decline. The Health and Human Service department's report to Congress found "very little progress" on eliminating hospital acquired infections.

The abysmal statistics on hospital infections, reported by the Agency for Healthcare Research and Quality, was a disappointment. It has been more than ten years since the Institute for Medicine reported that as many as 98,000 people a year die from medical errors, and preventable infections--along with medication mistakes--are a significant part of the problem.

According to the government report: rates of bloodstream infections following surgery increased by 8%; urinary infections from the use of a catheter following surgery increased by 3.6%; the overall incidence for a series of common infections due to medical care rose by 1.6%; there was no change in the number of bloodstream infections due to central venous catheters--tubes placed in the neck, chest or groin to administer medications, drain fluids or collect blood samples. However, rates of pneumonia following surgery dropped by 12%, the lone bright spot of the study.

Expanding Role of Nurse Practitioners: Good or Bad for Patients?

jfisher@protectingpatientrights.com (blog Author)29965 — Wed, 14 Apr 2010 08:00:00 EST

With a shortage of primary care physicians, 28 states, including New York, are considering expanding the authority of nurse practitioners. Nurse practitioners are registered nurses with an advanced degree in nursing and they want the power to practice without a physician's supervision or collaboration, prescribe narcotic medications and be called "Doctor".

The American Medical Association, which supported the national health care reform legislation, believes that a doctor shortage is not reason to put nurses in charge and endanger patients. Nurse practitioners, on the other hand, say there is no danger and that they are as highly trained and as skilled as doctors. In some states, nurse practitioners with a doctorate in nursing practice cannot use the title, "Doctor", but most states allow it.

Will expanding the role of nurse practitioners be good for patients? Generally, nurse practitioners are acceptable medical providers for routine and common illnesses, but it is not acceptable for a nurse practitioner to provide care to a patient suffering from a complex medical condition or a potentially life-threatening condition.

I handled a case where a 48 year old male, Client "Z", had a three month history of a fever of unknown origin and an unexplained weight loss of 20 pounds. Client "Z" sought treatment on a number of occasions over a three month period from his primary care physician for his symptoms, but he was seen by a nurse practitioner at each visit. Instead of ordering a blood culture, the nurse practitioner simply documented the symptoms and told Client "Z" to take Motrin for his pain. Client "Z" was not seen by his primary care physician on any of the office visits, and his physician did not even review the medical records prepared by the nurse practitioner.

After three months of the same symptoms, Client "Z" succumbed to a massive stroke caused by bacterial endocarditis, an infection in the inner lining of his heart. Had the nurse practitioner ordered a blood culture, as the standard of care required for a fever of unknown origin, the bacterial endocarditis most likely would have been detected and IV antibiotics would have cured the endocarditis. Client "Z" would not have sustained a massive stroke and brain damage had he received the appropriate medical treatment.

The moral of this example is that the nurse practitioner never should have been treating Client "Z". Client "Z"'s history of a fever of unknown origin and an unexplained weight loss did not present the common or routine situation that can be handled by a nurse practitioner. Client "Z" should have been seen by his physician, who generally spend four years in undergraduate school, four years in medical school and an additional three years in primary care residency training.

This case illustrates the risks of expanding the role of nurse practitioners. Simply put, a nurse practitioner does not have the medical education, training or experience to handle complicated cases that should be handled by a physician. Unfortunately, many nurse practitioners believe that they are just as qualified as physicians and they see no reason to limit their patient care to uncomplicated or routine cases.

Preventable maternal deaths from childbirth much higher in New York than National Average!

jfisher@protectingpatientrights.com (blog Author)29802 — Sat, 10 Apr 2010 08:00:00 EST

On April 9, 2010, the NYS Department of Health ended its nine-year partnership with the American Congress of Obstetricians and Gynecologists (ACOG), an organization that sent teams of doctors and nurses to hospitals to investigate pregnancy-related deaths, according to an Albany Times-Union article. The Department of Health is planning to make reviews of maternal deaths mandatory and is partnering with IPRO, a non-profit group that assesses health care quality, to conduct the reviews.

New York has a maternal mortality rate of 15 deaths per 100,000 live births, significantly higher than the national average of 3.3 deaths per 100,000 live births, according to the American Congress of Obstetricians and Gynecologists.

Since 2001, the NYS Department of Health and ACOG have jointly run the Safe Motherhood Initiative to reduce the number of preventable maternal deaths in New York. The program investigated deaths, analyzed the causes and conducted outreach to train obstetrical staffs on preventing complications. The state eliminated the program's $280,000 budget as of April 1, 2010.

There are about 60 maternal deaths annually in New York and half are believed to be avoidable. The number of maternal deaths in New York "rival third world countries", according to the executive director of the New York district of ACOG. Hospitals are required to report maternal deaths to the state, but undergoing ACOG's external review was voluntary.

For example, Albany Medical Center Hospital did not submit for ACOG review the death of Diane McCabe, 32, who bled to death after a cesarean section at the hospital in September, 2007. Hemorrhaging after cesarean section is one of the most common causes of maternal death, according to the analysis done by the Safe Motherhood investigators. The initiative has published posters and protocols for identifying and treating hemorrhage, and it also recommended that obstetric staff run mock drills to prepare for hemorrhage emergencies. Albany Medical Center Hospital had no record of performing hemorrhage drills and only one nurse recalled participating in a drill.

The Safe Motherhood Initiative reviewed 38 deaths between 2007 and 2009, nine of which occurred in upstate New York. ACOG plans to publish its analysis of the deaths in May, 2010.

Do lawsuits improve patient safety? McCabe settlement is proof

jfisher@protectingpatientrights.com (blog Author)29748 — Fri, 09 Apr 2010 08:00:00 EST

On April 2, 2010, the family of Diane McCabe agreed to a record $5.2 million settlement with Albany Medical Center Hospital and Albany obstetricians, Dr. Sean Young-Lee and Dr. Cheryl Burack. The McCabe family is represented by John K. Powers, Esq. of Powers & Santola, LLP. It is believed to be the largest malpractice cash settlement ever in upstate New York for a woman who died in childbirth.

The McCabe family refused to have their silence bought by the cash settlement.

Diane McCabe, 32 years old, of Rotterdam, New York, bled to death over the course of 15 hours following a Cesarean Section delivery of her second child at the Albany Medical Center Hospital on September 3, 2007. The lawsuit claimed that Dr. Lee cut Diane McCabe's uterine arteries during the cesarean section adn as a result, she hemorrhaged in the operating room, losing 60% of her blood volume. Dr. Lee refused to heed calls from the attending physician on duty that Diane McCabe was bleeding internally. Colleagues of Dr. Lee testified that they told him that she was bleeding and needed to undergo an operation to fix the problem. Dr. Lee demanded they wait six hours. Nurses also testified that Diane McCabe's vital signs were not being recorded after the C-Section operation.

An unusual part of the settlement is that it requires the Albany Medical Center Hospital to fund for the next 20 years a Diane McCabe Memorial Quality Lecture series focusing on topics related to enhancing patient safety. It also requires the hospital to buy a maternal and neonatal simulator to be used in staff training on the labor and delivery unit and to change procedures on the use of a machine that monitors a patient's vital signs during childbirth. The Albany Medical Center Hospital must purchase the maternal and neonatal simulator within sixty days of the settlement and change the default settings of its OBIX Perinatal Data System machines.

The mandated changes to the hospital's procedures will improve patient safety for years to come and will help prevent future tragedies. When someone blames lawsuits for increased insurance premiums and excessive precautionary tests by physicians, tell them about the McCabe settlement and how lawsuits can make a difference in improving patient safety.

Extraordinary Settlement for mishanding of Cesarean Section

blog@www.protectingpatientrights.com (news Author)13944 — Wed, 07 Apr 2010 08:00:00 EST

John K. Powers, Esq. of Powers & Santola, LLP's client, Diane Rizk McCabe, died at Albany Medical Center following a mishandled Caesarean section delivery in 2007. The eventual settlement of the case included some unique and groundbreaking terms that are real victories for the Civil Justice System.

The settlement requires Albany Medical Center to fund for the next 20 years a Diane McCabe Memorial Quality Lecture series focusing on topics related to enhancing patient safety. It also requires the hospital to buy a maternal and neonatal simulator to be used in staff training on the labor and delivery unit and to change procedures on the use of a machine that monitors a patient's vital signs during childbirth.

Caps in medical malpractice cases in doubt throughout US!

jfisher@protectingpatientrights.com (blog Author)29565 — Tue, 06 Apr 2010 08:00:00 EST

On April 2, 2010, Maryland's highest court heard arguments on whether a state cap on jury awards for pain and suffering is constitutional. The limit on how much money a jury can award for pain and suffering, also known as non-economic damages, is under attack as unconstitutional in Maryland as it is in many other states that have caps on such damages.

The constitutional challenge stems from the death of a 5 year old in a swimming pool drowning on July 22, 2006. After a jury trial the following year, the pool owner was found negligent by a jury for failing to adequate train and staff the pool with lifeguards, and the infant's parents were awarded $4 million. However, under the cap formula in Maryland, the award was reduced to just over $1 million. Restrictions on pain and suffering damages have long been a topic of dispute in Maryland.

The Maryland legislature established caps on non-economic damages about 25 years ago, and Maryland is one of at least 36 states that have established caps in at least some kinds of cases, such as medical malpractice, wrongful death or personal injury lawsuits.

Limits, or caps, on pain and suffering awards have been struck down as unconstitutional in some states. This year, in Illinois and Georgia, the high courts of those states have overturned caps. The constitutional challenge to caps is based on an equal protection argument. A injured victim whose award falls within the limit may collect the full judgment, but one who is awarded an amount exceeding the cap for having suffered severe harm--the death of a child, for example, or a life of physical pain--may not. Another argument against caps is that they deny injured victims the right to trial by jury guaranteed by the Seventh Amendment of the U.S. Constitution.

In my view, the basic, constitutional right to a trial by jury is limited when the jury's decisonmaking is constrained by limits on how much it can award for pain and suffering. A jury's award of $4 million is reduced by the cap to $1 million based upon an arbitrary law that does not take into account the lifetime of pain and suffering that severely disabled children, such as victims of birth asphyxia, face. The cap is grossly unfair to the severely disabled, who can only recover a fraction of the true value of their damages.

I wish the plaintiffs good fortune in overturning the limit on pain and suffering damages in Maryland.

Is the fear of lawsuits responsible for the rising C-Section rates?

blog@www.protectingpatientrights.com (news Author)13879 — Mon, 05 Apr 2010 08:00:00 EST

On April 3, 2010, the Albany Times-Union reported on the front page that "Cesarean Section birth rates keep rising" with a sub-title, "More babies delivered by surgical procedure hits 11-year high; fear of lawsuits cited as possible reason". A recent analysis from the U.S. Centers for Disease Control reported that the national rate of Cesarean Sections has hit an all-time high for the 11th year in a row.

The Cesarean rate in New York is 36 percent, higher than the national average. Cesarean rates vary from hospital wtih a reported 21 percent at St. Mary's Hospital/Seton Health to 45 percent at the Albany Medical Center Hospital. The rate of Cesarean Sections has risen at Albany Medical Center from 24% in 2000 to 45% in 2009, an increase of 89% over ten years. The rate of Cesarean Section rates in the Capital District has followed the national trend, according to the Times-Union article.

Albany Medical Center Hospital has the highest rate of C-Sections because it is the regional center for high-risk births. A high risk labor and delivery may involve mothers over age 35, babies with low birth weights, multiple births (twins and triplets) and mothers transferred for emergency Cesarean Sections. Since Albany Medical Center focuses on high risk births, the hospital does not have as many low risk pregnancies to offset the high Cesarean statistics, according to its director of high risk obstetrics.

Predictably, the doctors blame the legal climate as a major force in driving up the number of cesarean sections. Doctors have almost stopped using forceps and vacuums in the delivery room because of the risks of their use and guidelines now discourage vaginal delivery of babies in the breech position. The doctors interviewed for the article say, When things go wrong "a lawyer will say 'you could have done a Cesarean. Why didn't you?'" The doctors claim that changing the medical legal system is the answer.

This article by Cathleen F. Crowley of the Albany Times-Union presents one-side of the story. Fortunately juxtoposed with this article, is a settlement by John K. Powers, Esq. of Powers & Santola, LLP, wherein it was reported that Albany Medical Center Hospital paid $5.2 million for the death of a 32 year old mother of two, who bled to death after the mishandling of a Cesarean Section on September 3, 2007. It was reported to be the largest malpractice cash settlement in upstate New York for a woman who died in childbirth.

The family refused to have their silence bought by the settlement, as most malpractice law firms will do. The settlement requires that Albany Medical Center fund for the next 20 years a Diane McCabe Memorial Quality Lecture series focused on topics relating to enhanced patient safety. It also requires the hospital to buy a maternal and neonatal simulator to be used in staff training on the labor and delivery unit and to change procedures on the use of a machine that monitors a patient's vital signs during childbirth.

The article about the McCabe settlement counterbalances the one-sided article about C-Sections and it helps show how lawsuits can be responsible for improving patient safety.

Nursing Home Abuse Caught on Camera in North Troy!

jfisher@protectingpatientrights.com (blog Author)29326 — Thu, 01 Apr 2010 08:00:00 EST

On April 1, 2010, it was reported that fourteen nurses, nurses aides and a physicians' assistant at the Northwoods Rehabilitation and Extended Care Facility near Troy, New York were charged with endangering the welfare of elderly residents and felony falsification of nursing home records.

The investigation, conducted by Attorney General Andrew Cuomo, produced surveillance video collected over a six-week period showing the neglect. The surveillance video showed that the staff "routinely failed to turn and position immobile residents, often leaving residents in the same position for an entire shift" and the nursing staff failed to administer medications as well as treat residents for pressure sores. The video footage also showed that the aides failed to check residents for incontinence or change undergarments for long periods of time. Additionally, the residents' medical records show that the nurses and aides falsified medical records to conceal their neglect. The physicians' assistant created a phony record of an annual medical exam that never happened.

This isn't the first time that Northwoods has been in trouble. Last summer federal officials barred Northwoods from receiving Medicaid or Medicare payments for new residents in the wake of complaints that workers routinely ignored the buzzer system used by patients in need of assistance. In January, 2010, a male nurse's aide at Northwoods pleaded guilty to sexually abusing a 78 year old female resident in a 2008 incident.

Great work by Attorney General Andrew Cuomo in exposing the neglect that is prevalent in many nursing homes throughout New York!

New Law requires disclosure about nurse to patient ratios

jfisher@protectingpatientrights.com (blog Author)29295 — Wed, 31 Mar 2010 08:00:00 EST

What is the nurse-to-patient ratio at your hospital? How many are registered nurses? Now you can ask those questions and the hospital is required to tell you, according to today's article in the Albany Times-Union.

On March 15, 2010, a new law went into effect in New York that requires hospitals and nursing homes to make nurse-to-patient ratios available to the public. The law also requires health facilities to report adverse events, which may reveal facilities where staffing shortages contribute to higher rates of medical errors.

The law also requires hospitals and nursing homes to report the number of registered nurses and licensed practical nurses (LPNs) providing direct care; the ratio of full-time nurses to patients; the number of unlicensed workers providing direct care; information on complaints filed against the hospital and hospital staffing policies.

However, there is one catch: the information will not be collected or published by the state. The law requires hospitals and nursing homes to make the information available to any member of the public who requests it and to any state agency that supervises health facilities. The NYS Department of Health has no plans to ask hospitals and nursing homes to submit the information. The public can access the data by contacting the hospitals and nursing homes.

Consumers have the right to ask about staffing ratios at hospitals and nursing homes under this new law. The federal government publishes information about nurse to patient ratios at nursing homes at www.medicare.gov/NHCompare.

Research has shown that nursing levels are associated with the frequency of some patient injuries; the fewer nurses, the higher the rate of injuries. The NYS law requires that health facilities reports those kinds of events, including falls, pressure sores, urinary tract infections and blood stream infections.

What is a locum tenens doctor and why should I care?

jfisher@protectingpatientrights.com (blog Author)29303 — Wed, 31 Mar 2010 08:00:00 EST

"Locum tenens" is a term used for physicians who work on a temporary basis, or on an as-needed basis, at hospitals and health facilities. The relationship between the locum tenens physician and the hospital is temporary and may last a month, a couple of weeks or even just for a day. There is nothing inherently wrong with locum tenens physicians, but this type of traveling doctor may have a reason for being on the move.

I handled a medical malpractice case arising from the death of an Emergency Room patient who was discharged to home by a "locum tenens" physician despite classic signs of a heart attack and abnormalities on an EKG. Rather than admitting the patient, the locum tenens ER physician sent him home where he died two hours later. The story does not end there.

During the course of the malpractice lawsuit, I learned that this physician had his medical license suspended or revoked in several states, as far away as Alaska and Florida. It turned out that the locum tenens physician moved his medical practice from state to state as he encountered licensing problems in various states and he finally ended up at Columbia Memorial Hospital in Hudson, New York under a locum tenens arrangement with the hospital. No one knew (certainly not his patients) that this doctor had been sued many times and sanctioned by the medical licensing authorities in other states.

The locum tenens physician adroitly came to New York, where the licensing authority was ignorant of his prior history of malpractice and incompetence. Predictably, the locum tenens continued his pattern of incompetence in Hudson, New York by discharging a 69 year old male with classic signs of an acute myocardial infarction (heart attack) and an abnormal EKG.

Two years later, the New York Post featured a story about "BAD DOCTORS" and this locum tenens physician's photograph was on the front page. Of course, by then, this locum tenens physician was off to a new state where he could escape his past problems.

Keep in mind that there may be a reason that a locum tenens physician does not stay in one place.

Vaginal Birth After Cesarean Section--Safe or Not?

jfisher@protectingpatientrights.com (blog Author)28841 — Wed, 24 Mar 2010 08:00:00 EST

Back in the heyday of VBACs in the 1980s, vaginal birth after a cesarean section ("VBAC") was common. However, as VBACs increased, so did the reports about complications, including uterine rupture, according to a recent article in Newsweek entitled "A Change of Delivery".

In 1999, the American College of Obstetricians and Gynecologists issued guidelines stating that medical specialists be "immediately available" during a VBAC to treat a potential emergency--a standard that does not exist for routine labor. Many hospitals did not have the resources to comply and stopped offering VBACs. As a result, the rate of VBACs dropped from a high of 28 percent in 1996 to less than 10 percent today. Since 1996, one third of hospitals and half of physicians no longer allow women to have a VBAC.

The Newsweek article points out that a "trial of labor", as its known among obstetricians, is safe in the majority of women and most babies and mothers do well. Women are more than capable to make well-informed decisions for themselves and their babies, including their right to have a VBAC.

There are several key points missing from the Newsweek article. First, while the risk of a uterine rupture is relatively small (ranging from 1% to 2%) for women undergoing a VBAC, the consequences of a uterine rupture for the mother and baby can be catastrophic, involve massive bleeding and can entail the rapid loss of life for the mother and baby. If the obstetrician and anesthesiologist are not available at the hospital when the mother's uterus ruptures, the baby will be floating outside the uterus with no oxygen supply and fetal death follows in short order. When the uterus ruptures, the baby must be delivered immediately because any delay can result in the death of the mother and baby. This is why ACOG issued guildelines that an anesthesiologist and an obstetetrician be "immediately available" for VBACs.

If the ACOG guidelines for VBACs are relaxed and no longer require the "immediate availability" of the obstetrician and anesthesiologist, then the mother will be left with labor and delivery nurses with little training or experience in how to recognize the signs and symptoms of a uterine rupture. There are warning signs that often precede a uterine rupture that are caused by a partial tear of the uterine scar from the prior C-section, and a skilled obstetrician is much more likely to recognize the warning symptoms than a labor and delivery nurse. The warning signs of an impending uterine rupture can include shortness of breath, chest pain, agitation, neck and shoulder pain and severe pain between contractions.

As pointed out by the author of the Newsweek article, there are complications and risks associated with a C-Section just as there are for a VBAC. However, the potential risks and complications with a C-Section are not nearly as fatal and sudden as those associated with a VBAC. A uterine rupture is happen quickly and a physician should be immediately available to prevent the death of the mother and baby when it occurs.

The Newsweek article is one-sided in that it only points out the benefits of a VBAC while ignoring the potentially fatal consequences that can be associated with them. ACOG should not relax its guidelines that an obstetrician and anesthesiologist be "immediately available" for women undergoing a vaginal birth after a cesarean section and every patient should insist that its hospital follow the ACOG guidelines for a VBAC.

Georgia High Court strikes down Caps on Malpractice Awards

blog@www.protectingpatientrights.com (news Author)13592 — Tue, 23 Mar 2010 08:00:00 EST

On March 22, 2010, the Georgia Supreme Court unanimously held that the state legislature may not limit the amount of money that juries award to victims of medical malpractice. The state law set a $350,000 limit on jury awards for pain and suffering in medical malpractice cases.

The ruling struck down a 2005 state law that capped jury awards at $350,000 for the pain and suffering of malpractice victims. The Supreme Court held that the cap improperly removed a jury's fundamental role to determine the damages in a civil case.

The Georgia Supreme Court's 7-0 ruling concluded that the cap violated the right to a jury trial because it "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function". Chief Justice Carol Hunstein wrote in the opinion. "The very existence of caps, in any amount, is violative of the right to trial by jury." Chief Justice Hunstein wrote.

The court's ruling centered on a case involving Betsy Nestlehutt, a 71-year old who was awarded $1.15 million in non-economic damages--including $900,000 in pain and suffering--by a jury in Fulton County afer she was permanently disfigured after a botched facelift. But under the cap, that would have been reduced to $115,000 for medical expenses and $350,000 for non-economic damages. On Monday, the original award was reinstated.

Thirty states, the Virgin Islands and Puerto Rico place caps on jury awards in malpractice cases. However, since the late 1980s, such caps have been struck down by courts in New Hampshire, Oregon, Washington, Wisconsin and, most recently, last month in Illinois.

Monday was a great day for the rights of injured victims of malpractice!

Is heatlh care reform good for medical malpractice victims?

jfisher@protectingpatientrights.com (blog Author)28719 — Mon, 22 Mar 2010 08:00:00 EST

On Sunday, the U.S. House of Representatives passed a landmark health care reform bill that represents the biggest expansion of government-funded health care since the creation of Medicare. The health care reform bill will extend insurance coverage to nearly 32 million and halt industry practices that discriminate against the sick and the reforms mean that 95% of all documented Americans will have insurance coverage by 2016, according to Congressional Budget Office. The bill will be signed by President Obama on Tuesday.

What does the health care reform mean for the victims of medical malpractice? It may help.

The health care reform bill is free of any provision that would limit the rights of persons injured by medical malpractice. Although widely discussed during legislative sessions, any limitations on the rights of malpractice victims, such as malpractice panels and caps on non-economic damages, was not included in the legislation. A very good thing!

Often, the persons most at risk for malpractice are the uninsured in the middle class and now there will be 32 million more persons covered by health insurance. The poor are usually insured by Medicaid and the disabled are typically covered by Medicare. However, there is a large segment of middle class society that cannot procure health insurance coverage through their employer, Medicaid or Medicare.

Currently, if a person stops treating with physicians, the defense attorneys focus on the lack of treatment by claiming that the injured victim was not really injured or lacks proof of medical treatment to substantiate the injury. In the absence of medical treatment, personal injury victims have a weak argument to substantiate their injury and they must resort to explaining to the jury that they could not afford health insurance. With this testimony, the defense attorney can attack the credibility of the injured victim, which is much easier to do than attacking his treating physician. Because the injured victim is an "interested party", the jury may not be convinced by his testimony that he could not afford medical treatment and thus, be less inclined to accept the testimony. This is a big reason that health care reform will help injured victims with their cases.

Another benefit of the health care reform bill is that injured victims will no longer have to accept "pennies on the dollar" for their malpractice lawsuit in order to pay for their medical expenses. When there is no health insurance and the injured victim is unable to work, he may need to settle his lawsuit to fund the expenses of continuing medical treatment. With the passage of the health care reform bill, injured victims are less vulnerable to "low ball" offers knowing that they are covered by health insurance for their medical needs. The injured victim will not feel pressured to accept low settlement offers simply to meet the costs of their medical treatment. This will benefit injured victims by reducing the pressure tactics often placed on injured victims by claims adjusters who spot a weakness in the victims' inability to pay for their medical treatment.

I believe the health care reform bill will benefit the victims of medical malpractice.

Glorious day for injury victims!

blog@www.protectingpatientrights.com (news Author)13422 — Tue, 16 Mar 2010 08:00:00 EST

On March 16, 2010, our 28 year old disabled client reaped the benefits of the U.S. Supreme Court's decision entitled, Arkansas Department of Health & Human Services v. Ahlborn, 457 U.S. 268, 126 S.Ct. 1752 (2006) in virtually eliminating a very substantial Medicaid lien against his settlement proceeds.

In a nutshell, our client received a settlement offer in a premises liability case venued in Binghamton for $450,000, but faced the possibility that a Medicaid lien in the sum of $294,718.75 would force him to reject the offer. I fought the Medicaid lien by arguing that in New York the courts determine the ratio between the settlement and the full value of the case and apply that ratio to the amount of the Medicaid lien to arrive at the amount the State is entitled to seek.

The Supreme Court, Broome County, accepted the Ahlborn formula and placed a full value of $11,000,000 on our client's case. The settlement of $450,000 was based on lack of insurance coverage and liability issues. Applying the Ahlborn formula, the ratio between the settlement and the full value of the case led to a reduction in the Medicaid lien from $294,718.75 to $12,056.65, thus allowing our client to settle.

The decision in Ahlborn gives injured victims's great ammunition for reducing Medicaid liens that did not previously exist. Before Ahlborn, the Medicaid agencies demanded payment in full of the Medicaid liens and this often prevented personal injury victims from recovering a dime.

Today, Ahlborn was successfully applied to our client's case and finally, Medicaid is faced with the new reality that its rights to recover its lien is very limited. A GREAT day for injury victims!

9/11 Settlement Headline in NY Post, "The Lawyers' Payday", distorts the truth

jfisher@protectingpatientrights.com (blog Author)28238 — Mon, 15 Mar 2010 08:00:00 EST

On February 13, 2010, the New York Post reported a settlement of the claims of the workers alleging an injury arising from the 9/11 cleanup of the World Trade Towers, valued at $575 million, with the City of New York. The article on page 21 of the New York Post distorts the truth about legal fees to make the case that the lawyers are the only winners in the settlement.

The author of the article, James R. Copland, states that "[o]f the $600 million or so to be distributed under the settlement agreement, more than a third will go to the plaintiffs' counsel, assuming they've negotiated standard contingent-fee contracts and Judge Alvin Hellerstein approves. The city has already paid over $200 million to its lawyers. Nine years after the terrorist attacks, the victims stand to get less than half of what they've 'won'."

The author of this article mistakenly assumes that the victims of the 9/11 cleanup must pay for the legal costs incurred in defending the 9/11 claims. The injured victims of the 9/11 cleanup, similar to any other plaintiff in a personal injury lawsuit, do not pay the cost of defending the lawsuit. This is absurd and gives the appearance that the lawyers for the injured victims are the only real beneficiaries of the settlement.

While a one-third legal fee is the standard fee in personal injury lawsuits in New York (with the exception of medical malpractice cases where the fee is significantly less than one-third), the one-third contingency fee was part of the agreement that the injured victims made with their legal counsel. The fee may be excessive in certain cases, such as in the 9/11 cleanup, but the question must be posed to the author of "The Lawyers' Payday?", if the claims of the injured victims had not resulted in a monetary recovery, who would pay for the expenses of the litigation and the time of the plaintiffs' lawyers? The lawyers for the injured victims would, of course, absorb the entire cost of the litigation and take no fee for years of their time and energy pursuing the lawsuit.

The personal injury contingent fee agreement provides the lawyers with the incentive to spend their time and money only on cases that have merit and are likely to result in a monetary recovery, either by way of settlement or judgment after trial. In the 9/11 cleanup case, the City of New York settled because it considered the likelihood of losing at trial and paying far more than the amount of the settlement. The City of New York obviously considers the settlement to be a good deal to limit its exposure to a much larger Judgment after a trial.

Mr. Copland ignores these facts in his one-sided article, "The Lawyers' Payday?", and his slanted article aims to tarnish the image of trial lawyers representing victims of negligence.

Why it only takes 60 seconds to evaluate your birth asphyxia case?

jfisher@protectingpatientrights.com (blog Author)28009 — Wed, 10 Mar 2010 08:00:00 EST

Lawyers investigating a cerebral palsy claim are confronted with the prevailing obstetrical view that asphyxia (lack of oxygen to the fetus before birth) rarely causes cerebral palsy and the cause of most cases of cerebral palsy is unknown. All babies, term and preterm, are at risk for developing irreversible brain damage when they are exposed to asphyxia during labor and delivery. The risk of brain injury depends on the duration and severity of the asphyxia, and more brain damage occurs with the passage of time.

Asphyxia around the time of labor and delivery can be a cause of cerebral palsy, but the asphyxia must be nearly lethal to be considered a possible cause. When the delivery of oxygen and nutrition to the brain is interrupted or severely impeded or decreased for a period of time during labor and delivery, the baby's brain can become injured. It has been estimated that 10% of cerebral palsy in term infants is associated with asphyxia during labor and delivery.

Due to the multiple causes of cerebral palsy, it is crucial to determine whether the baby meets the criteria of brain damage or cerebral palsy caused by the lack of oxygen during labor and delivery--this condition is known as hypoxic ischemic encephalopathy ("HIE"). An important publication to which experts often refer in support of their causation opinions is published by the American College of Obstetricians and Gynecologists (ACOG) on the subject of "Fetal and Neonatal Neurologic Injury", Committee Opinion #197 (February, 1998). This publication sets forth criteria which ACOG claims must be present before a "plausible link [between birth asphyxia and cerebral palsy] can be made."

One to two newborns in every 1,000 births develop cerebral palsy as a result of brain damage. The four ACOG criteria to identify infants who were brain damaged as a result of decreased oxygen during labor and delivery are the following: (1) severe acidosis (cord pH level less than 7.0); (2) a five minute or longer Apgar score of three or less;
(3) evidence of neurologic injury, such as seizures, coma or hypotonia, within the first 24 hours of life; and (4) damage to other organs, such as the kidneys or lungs, that is consistent with decreased oxygen.

A very low Apgar score (0 to 3) at 10 minutes is a powerful predictor of cerebral palsy.

Multi-organ dysfunction in newborns is also a good predictor of cerebral palsy. Fetal asphyxia causes the redistribution of blood from non-vital organs (kidneys) to vital organs (the brain and heart) and the severely asphyxiated newborn will often show evidence of poor functioning kidneys, lungs and other non-vital organs.

Neuroimaging studies of the brain, such as a CT or MRI of the brain, often show swelling of the brain (known as cerebral edema) in newborns injured by lack of oxygen during labor and delivery. In trying to determine when a newborn sustained brain damage, the most revealing information can be taken from imaging studies of the brain, as there are distinct changes in the brain in response to a lack of oxygen during labor and delivery.

The four factors listed above will prove whether a newborn sustained cerebral palsy as a result of a lack of oxygen during labor and delivery. For this reason, an evaluation of a newborn's cerebral palsy case is simple: if these factors are met, it will not be difficult to prove that a newborn's cerebral palsy was caused by lack of oxygen during labor and delivery.

Changes you need to make to your Arons authorizations

jfisher@protectingpatientrights.com (blog Author)27578 — Tue, 02 Mar 2010 08:00:00 EST

In the summer of 2009, the Appellate Division, Second Department, explicitly approved the inclusion of warning language on Arons authorizations in Porcelli v. Northern Westchester Hospital Center, 65 A.D.3d 176, 882 N.Y.S.
2d 130 (2nd Dep't 2009).

In Porcelli, the defendants' counsel objected to the inclusion of an admonition on the Arons authorization that the ex parte interview with the plaintiff's non-party treating physician was "solely to assist defense counsel at trial. The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary." The challenged language on the authorization was set forth in bold-face type and highlighted in yellow by plaintiff's counsel. Defendants' counsel argued that the admonition on the authorization could intimidate healthcare providers and deter their cooperation with defendants' counsel.

The Appellate Division in Porcelli held that the warning language on the authorization was "facially neutral", "unlikely to chill the nonparty treating physicians' decision to agree to an interview" and properly alerted the plaintiff's nonparty treating physician that such an ex parte, informal meeting with defense counsel was voluntary and done in order to assist defense counsel at trial. The court stated: "On their face, the subject admonitions are unlikely to chill the nonparty treating physicians' decision to agree to an interview, as they are facially neutral."

The court in Porcelli further held that "the method the plaintiffs employed here--placing the admonition directly on the HIPAA-compliant authorizations and highlighting the language--is consistent with Arons, as it clearly serves the primary purpose of conveying the information in a manner that best prevents the accidential disclosure of privileged information. Arons does not require only defense counsel to be the messenger of such information."

As stated by the court in Porcelli, your Arons authorizations may state in bold, highlighted letters that: (1) the purpose of the interview is to assist the defendants in the defense of the lawsuit, (2) that defense counsel are required to identify themselves and their interest and limit their inquiries to the condition at issue in the lawsuit, and (3) the non-party treating physician, or other healthcare provider, must be advised that they need not comply with the request for an interview.

Your Arons authorizations should contain the admonitions explicity approved by the Appellate Division in Porcelli.

Why do trial lawyers matter? Here's the answer.

jfisher@protectingpatientrights.com (blog Author)27276 — Wed, 24 Feb 2010 08:00:00 EST

In today's Wall Street Journal, there is a great opinion article entitled "Why We Need Trial Lawyers" that answers all of the questions about trial lawyers.

The author points out that regulation is important to the creation of a level playing field for consumers, particularly with growing corporate power. But regulation alone has never been enough. Federal agencies, such as the Food and Drug Administration, the Consumer Product Safety Commission and the National Highway Traffic Safety Administration have long been swamped by large work loads.

Consider the FDA. By the mid-2000s, the FDA's caseload extended to more than 11,000 existing drugs a year, some 100 new drugs a year and a breadth of products from food to vaccines to medical devices that comprise 25% of all consumer spending. A 2006 report on drug safety by the Institute of Medicine of the National Academies found that the FDA could not ensure the safety of new prescription drugs. The FDA is only one example.

Product liability lawsuits have played a critical role in ensuring public safety, encouraging manufacturers to put safety first. A 1988 survey of 264 CEOs of manufacturing companies found that a third had improved their product lines as a result of the threat of litigation, 35% had improved product safety and 47% had improved warnings to consumers.

A case in point is Toyota. We've learned that car owner complaints were minimized or ignored by Toyota and by the regulatory agencies that were supposed to police the company. In one review of federal records, the Los Angeles Times found 2,600 complaints of sudden acceleration from 2000 to 2010 by Toyota and Lexus owners. According to CBS, recently released internal company documents indicate that as far back as 2005, Toyota was tracing its sudden acceleration problem to its software, not to floor mats.

However, for nearly a decade, neither Toyota nor federal regulators addressed the problem. Toyota is now likely to face a tide of class action lawsuits as consumers look to their only remedy: the courts.

Litigation has not only advanced public safety, but has encouraged improvement in products such as air bags, seat belts, child safety seats, tires, minivan doors, hot water vaporizers, children's pajamas, farm machinery, firearms, tampons, sleeping pills, pain medication, appetite suppressants and many more.

Subrogation is gone in New York. A great day for injury victims!

jfisher@protectingpatientrights.com (blog Author)27156 — Tue, 23 Feb 2010 08:00:00 EST

On November 12, 2009, Governor Patterson signed into law section 5-335 of the General Obligations Law that bars HMO's and private health insurers from seeking any reimbursement or subrogation against any settling party to a personal injury or wrongful death action with respect to benefits it paid or is obligated to pay. The only exceptions are for claims for which there is a statutory right of reimbursement (i.e., Medicaid, Medicare, workers' compensation) and subrogation claims to recover excess no-fault benefits.

This new law overrules two Court of Appeals decisions: Teichman v. Community Hospital of Western Suffolk, 87 N.Y.2d 514 (1996) and Fasso v. Doerr, 12 N.Y.3d 80 (2009) to the extent they recognized non-statutory rights for reimbursement or subrogation against a settling party. This law takes effect immediately and applies to both future actions and all pending cases that have not settled or gone to trial.

General Obligations Law section 5-335(a) provides, in part: "When a plaintiff settles with one or more defendants in an action for personal injuries...it shall be conclusively presumed that the settlement does not include any compensation for the cost of health care services, loss of earnings or other economic loss to the extent those losses or expenses have been or obligated to be paid or reimbursed by a benefit provider...."

The new law passed the Assembly by a vote of 135-0 and the Senate by a vote of 59-2. This statutory remedy applies only to settlements. Therefore, if recovery is had pursuant to a Judgment, the insurer still retains any rights it had to subrogation or reimbursement.

This law is a major victory in protecting the settlements of injured victims from private health insurers and HMO's.

Huge Labor Law 240 Case from Court of Appeals

jfisher@protectingpatientrights.com (blog Author)27073 — Mon, 22 Feb 2010 08:00:00 EST

On February 11, 2010, the Court of Appeals decided Gallagher v. The New York Post, 2010 NY Slip Op 01014 which substantially strengthened Labor Law 240 for victims of construction accidents.

The Court of Appeals in Gallagher limited the prior holdings in Montgomery v. Federal Express, 4 N.Y.3d 805 and Robinson v. East Med. Ctr., 5 N.Y.3d 550 to factual circumstances where the defendant has submitted admissible facts to demonstrate that: (1) adequate safety were readily available; (2) plaintiff knew the location of the safety devices; (3) plaintiff knew he was expected to use the devices; and (4) plaintiff, for no good reason, chose not to use the device.

The mere allegation by an "after the fact witness" that there were adequate safety devices somewhere on the job site is insufficient to establish a recalcitrant worker or sole proximate cause defense to a Labor Law section 240 claim. The Court of Appeals held that "[t]here is no evidence in the record that Gallagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them...The evidence does not raise a question of fact that Gallagher knew of the availability of the safety devices and unreasonably chose not to use them."

The Court of Appeals significantly strenthened the protection of Labor Law 240 in this decision.

Civil Trial for Suspected Terrorists?

jfisher@protectingpatientrights.com (blog Author)26578 — Thu, 11 Feb 2010 08:00:00 EST

A poll yesterday revealed that by nearly a 2 to 1 ratio, Americans reject President Obama's plan to try the plotters of the 9/11 terrorist attacks in civilian courts, rather than military tribunals. By an even greater margin, Americans say those charged with planning the 9/11 attacks should not be granted the same constitutional rights afforded US citizens.

A civilian trial will ensure that the alleged terrorists are not convicted under a veil of secrecy and are given the same rights and protections afforded to US citizens. If convicted in a civilian court, the conviction(s) will be afforded greater respect than a military tribunal.

$1,000,000 settlement of legal malpractice lawsuit

blog@www.protectingpatientrights.com (news Author)12758 — Wed, 10 Feb 2010 08:00:00 EST

On Februay 9, 2010, John Fisher settled a legal malpractice lawsuit arising from a New York City law firm's failure to timely respond to discovery demands in a medical malpractice lawsuit arising from a delay in diagnosing lung cancer in a 48 year old male residing in Fulton, New York.