http://www.protectingpatientrights.com/blog/ John H. Fisher Blog en-us 2012 John H. Fisher, All Rights Reserved, Reproduced with Permission http://www.protectingpatientrights.com/blog/ Sat, 19 May 2012 04:45:54 GMT http://www.protectingpatientrights.com/images/logoprint.gif http://www.protectingpatientrights.com/blog/ I came across this rather shocking news article that resulting in the death of a woman.  Cases like these are frustrating because the patient absolutely could have been saved if the doctor had completed a thorough examination and listened to the complaints of the patient.  There has been a few other news articles circulating discussing medical malpractice and that miscommunication is one of the main causes for lawsuits.  This case, while slightly different, is similar in that aspect.

What happened was the young woman went to her primary care physician’s office with a bad sore throat.  The physician did a quick examination and prescribed her a simple medication to help ease the symptoms of the pain and soreness.  However, the physician did not do any throat culture or take any samples.  In fact, the complaint alleges that the physician did not even look down her throat!  After the prescription and “visit,” the physician sent the patient on her way and she went home.

Two days letter her family had to take her to the nearest emergency room hospital.  The patient had actually done into shock!  It turns out this was because she was suffering from acidosis, which is a very dangerous condition where there is too much acid in the body fluids and other body tissue; this is generally because the kidney is not filtering enough of it out.

For the first time, hospital staff took samples and did blood cultures to find that there was Group A streptococcus in her system.  This is an incredibility invasive and aggressive bacteria which infects a person’s body by overriding the body’s natural defenses.  The hospital immediately transferred her to another specialized hospital.  However, she died shortly after being admitted there.

The lawsuit that was just filed alleges that the primary care physician SHOULD have identified this dangerous condition if the physician actually took samples.  More specifically, the physician should have ruled out some of the more dangerous conditions that it could have been and better attempted to diagnosis her with a specific condition.  If the physician even took a simple throat culture to establish that the patient had tonsillitis (strep throat), the physician would have realized from the tests that there was a much more serious condition here.  But the physician did not do this.  An expert provided the opinion that the physician would have been able to save the patient’s life if the physician conducted these tests!

I acknowledge that primary care physicians are the most overworked specialty out there.  Unlike other countries, the United States has a significant deficiency of primary care physicians and the legislature has even tried to pull more medical students to this field by offering scholarships or tuition reimbursement.  But this case is just oversight of the BASIC duty a primary care physician has to encounter which is diagnosis.  Physicians should not just be prescribing away medication to turn over patients and increase their income. 

Not all the facts of this case have been released yet as it was just filed, but I sincerely hope that this physician faces a very tough jury.  This physician’s negligence caused the DEATH of another person only because the physician did not do a simple throat culture!  A simple throat culture!  I hope the physician is found liable and it serves as a deterrent to other physicians who are not fulfilling their job duties.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/doctor%2Dmisdiagnoses%2Dwoman%2Dand%2Dfails%2Dto%2Dcomplete%2Dfull%2Dexamination%2Dwoman%2Ddies%2Ddays%2Dlater%2Ecfm www.protectingpatientrights.com-79866 Fri, 20 Apr 2012 08:00:00 GMT I came across a really interesting study of hospitals in the United States.  Lately I have been discussing a lot of legal-heavy topics in my posts, so I want to lighten up today’s post with something more digestible.  But don’t be fooled—this is actually quite scary!

The study made some alarming findings.  Most shocking, it found that patients who receive a hospital-acquired infection are FOUR TIMES more likely to die in the hospital than patients who do not get these infections.  The obvious answer is that these patients die more frequently because they have an added ailment; an infection.  However, we do know that hospital infections are generally more serious and even antibiotic resistant.  This adds to the lethality of the infection. The study also included that the length of stay for ICU patients nearly doubled when they suffered from a hospital-acquired infection; from eight days to fifteen!

The largest culprits for these infections were medical devices or instruments.  Particularly were catheters or mechanical ventilation devices the epicenter of hospital-acquired infections.  In fact, these tripled the risk of acquiring an infection in the hospital when one of these devices were used!  TRIPLED!

Of course, this brings up costs.  ICU are incredibly expensive.  The fact that patients are spending almost double the amount of time in the ICU because of an infection which was CAUSED by the hospital is what is really troubling.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/study%2Dfinds%2Dhospital%2Dacquired%2Dinfections%2Dgreatly%2Dimpact%2Dicu%2Ddeaths%2Ecfm www.protectingpatientrights.com-79744 Wed, 18 Apr 2012 08:00:00 GMT This week I have written some more legal posts regarding different types of medical malpractice in emergency rooms and additional providers who can be sued for medical malpractice like nurses.  Now I just want to talk about theories or concepts of litigation.  There are multiple different theories or concepts a medical malpractice claim could be brought against a health care providers.  One that I really haven’t spoken about—and which is not really that common in medical malpractice—is the theory of res ipsa loquitur.

In Latin, res ipsa loquitur means “the thing speaks for itself.”  What is nice about res ipsa is that the plaintiff can present the case in chief against the defendant doctor through purely circumstantial evidence.  That is because res ipsa is that it carries the presumption that the injuries sustained had to have been a result of negligence on some part of the doctor, thus the duty of care was breached.  For example, res ipsa claims are typically used in airplane crashes where the weather was fine and there are no reports of malfunctioning. 

To determine a res ipsa claim, there are three elements.  The first element is that the accident or injury is the kind which ordinarily does NOT occur in the absence of negligence.  This element is probably the most important one.  The second element is that the accident or injury be caused by an instrument or agency under the EXCLUSIVE control of the defendant.  This element is the trickiest and usually is where res ipsa fails.  Finally, the third element is that the plaintiff did not contribute in any way to the accident or injury.  If these elements are met, then the plaintiff can proceed with a res ipsa claim.  These elements are provided for in the Restatement of Torts which is the guidepost to the legislature and judges when an issue arises in court that there is no established law on yet.

But you might ask—when does this actually happen in medical malpractice claims?  There cannot be just an injury in the case.  There actually needs to be an injury which has been caused that would not have happened in the absence of negligence by the defendant.  So what are some examples?

One common example is when a surgical sponge is left in a patient’s body following a procedure.  Other cases had also applied res ipsa when a tissue clip was also left inside of a patient, a pretty big six-inch catheter tube left in a patient’s chest, and an even larger eight-and-a-half inch piece of wire in a patient’s liver.  These are all called foreign object cases and are undoubtedly the most common types of res ipsa claims.  Other cases include leaving a broken piece of a scalpel blade in a patient, leaving the tip of a broken instrument in a patient after an operation, and failing to timely stop a penrose drain (this is a surgical device to drain fluid from a wound and if left in, could cause infection quickly).

But the bottom line about this post should be that you—the patient—should not determine whether your case is a res ipsa case or not.  More importantly, in general you should not determine whether or not you have a medical malpractice claim.  If you believe you might have been harmed by a health care provider’s actions, PLEASE reach out and speak with an experienced attorney.

What do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/medical%2Dmalpractice%2Dand%2Dres%2Dipsa%2Dloquitur%2Dan%2Dexplanation%2Ecfm www.protectingpatientrights.com-79620 Tue, 17 Apr 2012 08:00:00 GMT Medical malpractice can occur not just by doctors or more broadly hospitals, but also by support staff such as nurses.  In fact, I have seen more and more medical malpractice cases against nurses recently.  These suits can come in a variety of contexts such as in nursing homes, physician offices, or in hospitals.  In fact, I would do so far as to call this an upward trend in medical malpractice suits against nurses.

But wait—before you think that more plaintiffs are adjusting their sights from physicians to nurses think again!  In the past few years, the role of nurses has really changed in the medical field.  One might go as far to say that nurses were once considered the “behind the scenes” or passive health care worker assisting a physician or hospital.  However now, the role of a registered nurse is considerably more assertive and prevalent.  Tasks that used to be performed solely by physicians or residents are now being shifted away from them and towards nurses.  These tasks include operating medical equipment, coordinating patient care, and monitoring or gathering patient physical or mental information. 

Moreover, coupled with the shortage of qualified nurses, hospitals have become overrun with need and the few nurses that are working are doing the work double what they should or can be handling.  This is a recipe for accidents just by the inherent nature of not being able to service all patients effectively.

Like a medical malpractice claim against a physician, the burden of proof is also on the plaintiff to show that the defendant-nurse deviated from the acceptable standard of care and that this deviation proximately caused the injury to the plaintiff.  This standard of care is considered the floor, meaning it is the baseline that a nurse can perform to avoid liability.  Just as physicians use the locality rule, nurses also have a similar locality rule which requires them to possess the degree of learning and skill ordinarily possessed by nurses in good standing in their community, and to the exercise that degree of care ordinarily exercised by other members of the profession acting in similar circumstances.

Additionally, there are guidelines and other standards issued to nurses on the national state, and local levels which dictate how a nurse’s conduct should be and how they will be evaluated.  Most of these standards are not products of law, but the Code of Federal Regulations (“CFR”) does provide requirements for nurses; that is mainly for the purposes of obtaining Medicare and Medicaid funding though.  One of the most prominent standards issued comes from the American Nurses Association (“ANA”) which delineates standards for all types of nurses (i.e. emergency room, operating room, medical-surgical, critical care, obstetrical, etc).

So if you or someone you know has suffered medical malpractice because of something a nurse did, you may still have a claim!  Just because it was not a doctor does not preclude you from having a medical malpractice claim.  As I have previously discussed, medical malpractice claims can be maintained against ANY medical provider such as doctors, surgeons, dentists, nurses, and pharmacists.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/medical%2Dmalpractice%2Dliability%2Dand%2Dnurses%2Dwhy%2Dnurses%2Dare%2Dbeing%2Dsued%2Dmore%2Dand%2Dmore%2Doften%2Ecfm www.protectingpatientrights.com-79519 Mon, 16 Apr 2012 08:00:00 GMT In yesterday’s post I briefly mentioned emergency medicine and today I realized I really haven’t added anything to my blog regarding this topic.  So I decided to include some information on what is emergency medicine and quite possible one of the most common mistakes in the emergency room—failure to diagnosis appendicitis.

We all know that emergency rooms are the primary way seriously injured or ill patients enter hospitals.  By definition, emergency medicine is a specialty of medicine which is concerned with the evaluation, immediate diagnosis, and treatment of trauma, injuries, or sudden illness.  But did you know, the emergency room also functions as the office of a general practitioner or family physician?  Especially in heavily populated areas such as cities, emergency rooms are a regular medical office for some people.  Financially, this is not a good thing because it raises the cost of health care.  Yet, it still occurs quite frequently. 

Nonetheless, the emergency room is not really meant to treat most patients with a long-term plan, but just determine why the patient has gone to the hospital and how they can be stabilized.  In fact, treatment really is not provided UNLESS there is an immediate threat to the patient’s life or limb.  Although emergency room physicians are well-trained and usually very experienced, there are some reoccurring areas of medical malpractice that occurs.

One of the most common medical malpractice issues in emergency rooms is a failure to diagnose appendicitis.  This is because A LOT of patients come into the emergency room with abdominal pain and most are routine issues (i.e. illness like food poisoning).  Compounding this is the fact that appendicitis does not always have any tell-tale signs!  Symptoms can even vary by age and gender.  Additionally, appendicitis is like a ticking time bomb because if diagnosis and treatment is delayed, the appendix can rupture and cause a massive infection requiring a rather invasive surgery. 

But all of these factors should NOT excuse a physician from picking up on these symptoms.  Physicians are TRAINED to know these differences in symptoms.  If the emergency room team does not act quickly enough within a reasonable amount of time which causes the patient pain, suffering, and a possible rupture, there will be liability.  If the patient sits in the emergency room for a long time with the clear signs of appendicitis, and it results in serious injury (such as a rupture), than there might be liability on the emergency room staff and it is worth speaking with an attorney about it.

It is important to note that sometimes staff will perform an “exploratory laprascopy” to visually check on the status of the appendix to see if that is the cause of the patient’s pain.  This is not medical malpractice in and of itself, unless the symptoms are clearly not there, the procedure itself is negligently performed, or if the appendix is actually the ailment and does need to come out.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/emergency%2Droom%2Dmedical%2Dmalpractice%2Dkingston%2Dnew%2Dyork%2Dattorney%2Ddiscusses%2Ecfm www.protectingpatientrights.com-79423 Sun, 15 Apr 2012 08:00:00 GMT It is always hard to learn about cases of medical malpractice—always.  Some factors make it particularly difficult to handle, such as cases of children.  A case that I just read about is even worse—a United States Air Force veteran. 

When we think about veterans of our military branches and medical malpractice, we of course think about it in the context of war injuries.  In these circumstances, doctors are afforded a bit of leniency if a soldier comes in with injuries from war through the emergency doctrine. In these situations and because of the exigency of the circumstances, the doctor can only ask as best they can under these temporal requirements and limited information.  Another protection is the Feres Doctrine which prohibits the US government from being sued by members of the various military branches for negligence.

But in this case it was different.  It was not actually an emergency situation resulting from war; this is what makes me most angry.  In this case, an air force soldier underwent a routine and normal gallbladder operation.  However, surgeons accidently injured and an aorta in the patient’s body at the very beginning over the operation.  This resulted in a significant loss of blood flow to the patient’s legs during the entire operation.  Because of the length of the operation and no blood flow to the patient’s legs, the patient’s legs ended up needing to be AMPUTATED!  That is right—after this routine operation for a gallbladder, the airman lost both his legs.  Not through serving his county in combat, but on the operating table for a simple operation!

Now a veteran, the patient is suing for the medical malpractice of the surgeons in addition to pain and suffering, physical impairment, loss of earnings, mental anguish, disfigurement, and his wife is suing also for consortium.  In total, the patient is seeking approximately $34 million dollars.

This case is upsetting that someone willing to loss their life for this country just became seriously harmed by his own government who he made this oath to.  Again, this case was just filed and there are no findings of fact or negligence yet, but this is just an account of the applicable facts.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/air%2Dforce%2Dveteran%2Dsues%2Dfor%2Dmedical%2Dmalpractice%2Dkingston%2Dlawyer%2Ddiscusses%2Ecfm www.protectingpatientrights.com-79378 Sat, 14 Apr 2012 08:00:00 GMT I fear misdiagnosis cases a lot.  This is particularly because of the statute of limitations and its unforgiving nature in situations like this.  Whereas there are exceptions in the statute of limitations for continuing treatment of that condition (which once misdiagnosed, that isn’t the case anymore) and the foreign object discover rule, in misdiagnosis cases these exceptions don’t work.  More importantly, if a doctor misdiagnoses the condition, that mistake might not manifest itself until after the statute of limitations expires!  Meaning, the patient cannot sue!

The other scary thing about misdiagnosis cases is that they usually are cancer cases, where the patient’s condition COULD HAVE BEEN treated effectively if the cancer was caught early.  But since there was a misdiagnosis, that is not the case and the patient is put in a position that leaves them worse off than they were.

In this New York case, a forty-year-old woman believed she felt a small lump in her breast during a self-exam, and went to her doctor.  She was referred for a mammogram and underwent one.  The radiologist treating her looked at the scans, and believed she had a clogged milk duct and it would just go away with him.  But this lump didn’t just go away.  In fact, it continued to grow and, a little over a year after her diagnosis, she went to the doctor again.  At this time she was diagnosed with breast cancer.

Because her breast cancer had not been treated in time, it had actually metabolized—or spread—to her lymph nodes.  She immediately underwent a mastectomy and began a radiation and chemotherapy routine.  However, because of the advanced stages of this cancer, it spread to her bloodstream and to her bones.  As noted at trial—and looking at the facts of the spread of cancer—she might not live for much longer.

After an emotional trial where her attorney argued that the doctor’s negligence resulted in her increased her, the jury returned a $15 million dollar verdict for her!  This was based on the misdiagnosis of the radiologist, but also for the failure to properly follow-up on the patient’s condition. 

I think this is absolutely the right decision.  As $15 million sounds like a lot of money, because it really is, this patient and her family are completely changed now.  Her life might end because of the doctor’s negligence.  There is no price for human life; no amount of money can possibility bring a life back.  That is why the large award is to pay for all of her treatment, medical bills, and anything else that can help to rectify the mistakes by her doctor.  This also serves as a deterrent to her doctor and radiologist and others as well to make sure they properly do their job and, when in doubt, as for a second opinion.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/jury%2Dawards%2D15%2Dmillion%2Din%2Dmedical%2Dmalpractice%2Dmisdiagnosis%2Dcase%2Ecfm www.protectingpatientrights.com-79306 Thu, 12 Apr 2012 08:00:00 GMT I know my blog has focused a lot of that happens AFTER medical malpractice occurs, particularly claims, how to prove them, case samples, and what to do.  But as the saying goes, an ounce of prevention is worth a pound of cure.  And I have had a few posts discussing that, particularly about researching doctors and asking them tough decisions.  But I haven’t focused on one of the most important doctors—the primary care physician.  This is essentially your family doctor, the doctor you trust with almost all of your initial health concerns.  Now do note that these questions could also be extrapolated and asked to a pediatrician as well.

The first and most important question to ask ANY doctor is if they are board certified.  At this point, because of the nature of board tests at the end of medical school, most doctors nowadays are board certified; it’s actually mandatory at some medical schools.  If you have a doctor who is not board certified, that is a major problem and might be for a reason.  I would advise avoiding these doctors!

Another important question is whether the doctor takes care of patients in the hospital.  This shows how involved the physician is in his or her patients.  A “yes” is not a necessary answer here, but it does do to show that if the physician will go to great lengths to see patients in the hospital, getting an appointment at the last minute should be easier to do because the physician will be more willing.  A good follow-up question would be to see how many patients are in the hospital.

Another obvious question would be what the physician’s after hours and weekend availability is.  This is because, hey, we don’t plan when we get sick!  We more willing the physician is to meet with you outside of normal hours, the better care you will likely get overall.

The last and most important question is finding out where else the physician has practiced.  You can ask where the physician has previously practiced, and then look it up at www.docinfo.org.  This is because a physician could lose their license in one state and, while other states should and likely will consider that disciplinary action, they might not!  You can also check the disciplinary history of a physician at www.nydoctorprofile.com.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/what%2Dare%2Dsome%2Dimportant%2Dquestions%2Di%2Dshould%2Dask%2Dmy%2Dprimary%2Dcare%2Dphysician%2Ecfm www.protectingpatientrights.com-79249 Wed, 11 Apr 2012 08:00:00 GMT Besides getting questions related to lawsuits, I typically get questions regarding money about various financial issues relating to medical malpractice lawsuits.  I realize that I haven’t actually addressed these questions on my blog yet.  So I’ll post a response here, and I hope that it helps answer any questions my current clients have, but also any potential clients might have!

Essentially with your lawsuit, the biggest thing that matters is your “net recovery.”  This is simply the amount of money that goes directly into your pocket after the payment of legal fees and expenses.  So how do you use this to your advantage?  Well, if your attorney wants to settle your case, before you respond you can ask him or her “what will my net recovery be if we accept this settlement offer today?”  This will force the attorney to deduct case expenses and legal fees so you will know what you will ACTUALLY get put into your pocket.

Another common question is “what do you pay your lawyer if you fire them?”  This is another good question because if you have retained your lawyer on a contingency basis—meaning they get a portion of your fee—and you fire them before the conclusion of your case, do they get nothing?  No—you still have to pay your ex-attorney.  However, you really still have all the power.  Your ex-attorney will likely insist on still getting a percentage of the legal fee that will be a smaller percentage than a normal contingency fee.  But you can opt to pay the ex-attorney on what is called a per diem rate, which is just based on their normal pay for hourly work performed.

The last and scary question is what does the client own the lawyer if the case is lost?  Here is where the retainer—which is the initial agreement of how the client will pay the attorney—is the main source of information and might vary from attorney to attorney.  For example, if the attorney is paid hourly that will be pretty easy to figure out.  But most commonly in medical malpractice cases it will be on contingency.  But you will also have to pay other disbursements such as case fees, research, filing, etc.  Attorneys are ethically mandated to recover these, however if your case is lost, an attorney might be less pressing to actually recover those.  Most contingency fee cases are one-third, however, medical malpractice cases follow a special, leveled reimbursement structure from the judiciary law.  The most important thing if for you, the client, to read the retainer agreement carefully!

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/money%2Dmatters%2Dkingston%2Dmedical%2Dmalpractice%2Dattorney%2Ddiscusses%2Dfinances%2Din%2Dmedical%2Dmalpractice%2Ecfm www.protectingpatientrights.com-79155 Tue, 10 Apr 2012 08:00:00 GMT There is a lot of discussion about the tort reform and how medical malpractice increases the cost of health care significantly.  From time to time, I have rebutted this presumption.  Medical malpractice cases are heinous!  Patients suffer absolutely horrifying medical malpractice mistakes which could affect their whole life.  We are talking about the HEALTH of a patient—money cannot justify the pain and suffering these patients have endured; they can never be made whole again.  That is why large awards against health care providers are necessary to punish them and provide a deterrent effect on them, while also covering the medical bills of the patient for the rest of their lives and trying to pay to ease their now wrongfully altered lives.

If we really want to focus on bringing down the costs of health care, we really should be focusing on overused medical procedures.  Unnecessary procedures can actually be dangerous!  I wrote a post awhile ago about prostate biopsies causing increased infections and also that overstenting could expose patients to extraneous medical procedures that are not needed.  Two years ago, an article was published which questioned a lot of procedures performed on patients that are being overused and likely unnecessary which, as a result, is costing Americans BILLIONS! 

Now, nine U.S. medical specifically societies studying this issue released research data about this.  Each society provided EXTENSIVE information in their reports, but I have taken some of the more important procedures or more common that you—the patient—should always question before undergoing to see if it is necessary. 

Here are some of the most common pieces of advice about procedures to help reduce the costs of health care in the United States:

Don’t undergo radiology imaging for uncomplicated headaches.

For uncomplicated, acute rhinosinusits, don’t order sinus CT’s or antibiotics unless there is good reason to do it.

Don’t rush to have radiology images for lower back pain within the first six weeks, unless there are other serious conditions present.

Don’t have EKG’s done if you are a low-risk patient without any warning symptoms.

Don’t have pap screens if under 21 years old or if there was a hysterectomy for non-cancer disease.

For more of the tests per medical society, click here to learn more: http://choosingwisely.org/?page_id=13.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/study%2Dreleased%2Dlists%2Dmost%2Doverused%2Dmedical%2Dprocedures%2Dwhich%2Dcost%2Damericans%2Dbillions%2Ecfm www.protectingpatientrights.com-79002 Sun, 08 Apr 2012 08:00:00 GMT I’ve said many times before, the marriage of medicine and technology is a GREAT thing.  As technology advances, it can assist to perform medical procedures that just simply were not possible.  On the same page, as medicine advances, it paves the way for new technology to be developed to help perform this new need in the medical field. 

But sometimes this does not always work out in the best way.  I had discussed awhile ago about robotic surgery and another case where the robot malfunctioned and shut off DURING an operation.  This was a new, technology driven form of medical malpractice.  In this New York case, a da Vinci robot was responsible for the death of a patient 24-year-old woman in a really tragic turn of events.

What exactly is a da Vinci robot though?  Traditionally, many surgeries had to be performed with a large incision to perform the operation.  Now, with robots such as the da Vinci system, operations can be performed with multiple, smaller incisions through what is commonly known as laparoscopic surgery.  The da Vinci robot is a large surgical system with four arms all stemming from a control manual with a video screen where the surgeon performs the operation.  Three of these arms are for tools or to hold objects like scissors, scalpels, or cauterization tools.  The fourth arm is the very important endoscopic camera which has two lenses to give the surgeon a full view from inside the patient.  What is really amazing is that the surgeon uses, in unison, two foot pedals and two hand controllers to perform the surgery.  It is actually quite amazing!  Particularly because the machine itself actually filters out little shakes in the hands of the surgeon or slight vibrations and simply translates that into micro-movements of the instruments.  This ensures PINPOINT accuracy!  How amazing! The total cost of each machine is around $2 million. 

What happened in this New York case was simply tragic.  It was just filed this past week.  A 24-year-old girl was undergoing a hysterectomy where the surgeon was using the da Vinci robot—a very common use of this machine for this kind of operation.  Unlike many other operations, for some reason the un-insulated surgical arms of the robot caused burns to a MAJOR artery and the patients intestines.  The plaintiffs argue that this was caused by an electrical current which jumped from those un-insulated arms to healthy tissue due to a design flaw by the manufacturer.  Sadly, the patient died two weeks after the operation.

So the plaintiffs—in a wrongful death action which I recently discussed this past week—are suing the manufacturer of the da Vinci Robot for design flaws which caused the death of the 24-year-old patient, but also suing the surgeons who failed to realize the major damage to the artery and intestines before the conclusion of the operation and during follow-up treatment.

This is a somewhat scary case, because you would think that the machine would be safe to use under the expert guidance of a surgeon.  But in this case, both the technology AND the medicine failed this young girl.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/surgical%2Dda%2Dvinci%2Drobot%2Dcauses%2Ddeath%2Dof%2Dpatient%2Dkingston%2Dmedical%2Dmalpractice%2Dattorney%2Dexplains%2Ecfm www.protectingpatientrights.com-78913 Fri, 06 Apr 2012 08:00:00 GMT At one time or another we have all heard about a wrongful death action—but what exactly is that?  Unfortunately as a medical malpractice practitioner, there is an upsettingly large amount of cases that result in the death of a patient.  Particularly when the medical malpractice is so outrageous, a patient may die as a result of the doctor’s negligence. 

Essentially, a wrongful death action is a claim against a person who is alleged to be liable for the death of another.  This is usually brought by the close relatives or next of kin from the deceased person.  Which if you really think about it, it is one of the only times you can sue for an injury caused to another person!  Another popular one for medical malpractice is loss of consortium/services.  This is because of standing, which allows a party to sue because they have an interest in the litigation and are able to bring the lawsuit. 

For wrongful death actions, there are both common law and statutory authority for bringing an action.  In New York, the statute is called the Estates, Powers and Trusts Law (“EPTL”) section 5-4.1 “action by personal representative for wrongful act, neglect, or default causing death of decedent.”  As mentioned above, the case is brought by a personal representative (usually a close relative or next of kin) who brings “an action to recover damages for a wrongful act, neglect, or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.” 

As in many states, in New York the statute is STRICTLY interpreted.  In fact, it is incredibly strict as courts do not use their discretion when determining whether a wrongful death action may be brought.  For instance, in New York claims for wrongful death actions when a fetus has been killed because the statute says “decedent” and a “decedent” is someone who is dead, and to be dead you need to have been alive, and to be alive, you have to have been born.  This is how strictly the statute is interpreted! 

As noted a few days ago in one of my posts, there is also a statute of limitations for a wrongful death claim.  Here, the action must be sued upon, or bought, within TWO YEARS from the moment of the death of the decedent.  That is also FAST!  Another tricky aspect of this statute is that the underlying claim must ALSO be alive still. For example, if doctor A was negligent to patient B on January 1^st, 2000, the normal statute of limitations for medical malpractice is July 1^st, 2002.  Therefore, to have a wrongful death action, B must either bring that lawsuit within that time period and then pass away and his or her estate sue within two years, OR B dies before July 2002 but has not yet sued, and brings a lawsuit for both medical malpractice and wrongful death.

Yes—this is confusing!

In one interesting case—with bad results for the victim—was a car accident case which occurred on June 1, 2007.  Car accident cases are generally based on negligence, which has a three year statute of limitations.  The victim’s health started to decline and they had not yet sued, and on June 2, 2010 the victim died.  The estate tried to sue for both personal injury due to negligence and wrongful death.  The lower court dismissed the personal injury claim because it was not brought within three years; this is CORRECT!  But the court said the wrongful death action was sued on within two years of the death, and it was triable.  The defendant appealed and the Appellate Division said the defendant was RIGHT!  For a wrongful death claim, the underlying—i.e. the personal injury claim—must also be viable!  Since the personal injury claim had expired, the wrongful death action could not be brought! 

Wrongful death actions are also difficult to cope with because we are discussing the life of a loved one and the circumstances surrounding their death.  As I have said countless times before, the loss of another human being can NEVER be compensated with money, EVER!  But this is the only way we can attempt to compensate the decedent’s family while still punishing the negligence of a doctor.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/albany%2Dmedical%2Dmalpractice%2Dattorney%2Ddiscusses%2Dwrongful%2Ddeath%2Dactions%2Ecfm www.protectingpatientrights.com-78833 Wed, 04 Apr 2012 08:00:00 GMT Nursing home abuse is SCARY.  Why?  Well, first, providers really can manipulate residents and patients.  They are in a position of control and authority which may intimidate some residents, particularly older ones, from stepping forward and reporting the abuse.  Second, since providers are in this position of control, they can hide or alter signs of abuse to prevent detection. 

Don’t get me wrong, the MAJORITY of nursing home providers are absolutely FANTASTIC!  With that said, nursing home abuse is a reality.  It certainly happens, and it happens much more frequently than one might think.  So what are some signs of nursing home abuse?

First and foremost, I think one of the most important signs of fraud and abuse actually comes from the providers while YOU are there visiting a resident.  During visiting hours, you should have unrestrained access to visit.  This might fluctuate depending on the home and their policies, but it should stay uniform and consistent.  If you are flat out denied access to visit a resident, that is a MAJOR problem.  Moreover, if you arrive and are delayed access, that is another sign that there may be something going on.  Of course, this does not mean that it is abuse.  It could also mean that the home is facility is messy, the resident’s room is not properly up kept, or even something harmless like the resident is sleeping, in the bathroom/shower, or being treating for a condition.  But this should NOT be an EXCEPTION to the rule and not becoming a pattern.  If this happens EVERY time you are there, something is wrong.  Furthermore, if staff stands in the room or at the doorway while you visit the resident, this is also an indicator that staff might be trying to intimidate the resident in not reporting abuse to you!

Second, and more commonly what we think of when there is nursing home abuse, there could be physical manifestations.  Obviously signs are bruises, cuts/bleeding, scraps/abrasions, sores/blisters, infections, or even open wounds.  But also look behind physical injuries.  Is there a major change in weight?  Is there any hair loss?  Teeth are a good indicator—how do they look?  Also look at their nails.  Not just for being properly trimmed, but look at cuticles.  If cuticles are picked at or bitten, and that is not a normal habit of the resident, maybe something is making them nervous. What about clothing, bed sheets, curtains, towels, etc—are they clean?  Are there stains on them; particularly blood or fecal matter?  Use you other senses too.  How does the resident overall smell?  When you get close to them, say for a hug, how does their hair smell?   

Moreover, when there are significant injuries always get a medical opinion.  Staff might saw the resident fell or slipped, but certain injuries cannot be covered up.  For example, a resident with a broken arm or leg (tibia or fibula) should have certain other injuries manifest with it.  Particularly the WAY it broke.  If the resident really fell, injuries such as large bruises not just in the area of the injury, but also on other parts of the body (i.e. if falls on arm, will also bruise ribs, back, shoulder, etc).  But what kind of break is it?  There are a few different kinds of broken bones.  The most COMMON when it comes to abuse is spiral fractures/breaks.  That happens when the bone is being pulled in two different directions—like the individual trying to spin away and someone else pulling the individual’s arm out—and breaks in a spiral pattern.  This is also common for sports injuries where an ankle gets caught but the body keeps going and rolls.  If the home says the resident fell, and there is a spiral fracture, contact an attorney immediately.

Third, and not always as obvious, look for emotional changes.  Is the resident quieter now?  Are there new, weird happens being manifested?  Are they giving away money or personal possession, or are those goods missing?  Does the resident seem depressed, hostile, agitated, defense?  These are further warning signs that can be REALLY tricky because they may naturally occur during socialization process when first arriving at a home.

In addition to all of these factors, also keep track of medications if you can.  This is hard to do, but is really scientific and should be easy to predict.  This is because prescriptions are carefully listed with dosages—the amount to take, how often, and when.  Are medications running out quickly?  These could mean that staff is over-medicating the resident.  Are medications lasting for a long time?  This could mean that staff is failing to administer the medication!

All of these factors can be used together to make a determination.  If you are not sure that there is abuse going on, then there is probably a good reason why this pops into your head!  Speak with a trained attorney just to make sure!  Consultations should ALWAYS be free for certain types of cases, and this in one of them.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/kingston%2Dmedical%2Dmalpractice%2Dattorney%2Ddiscusses%2Dwarning%2Dsigns%2Dof%2Dnursing%2Dhome%2Dabuse%2Ecfm www.protectingpatientrights.com-78758 Tue, 03 Apr 2012 08:00:00 GMT From time to time I think it is very important to reiterate that your medical malpractice claim WILL NOT LAST FOREVER!  The law has what are called “statute of limitations” which creates a time limit when you can bring your claim.  Since New York is a commencement by filing state, this means that before the time limit expires you need to file your complaint with the clerk of the court.  Once you have filed, you need to serve the defendant the complaint within 120 days and you are on your way to the lawsuit.  Even if you file the complaint on the last day of the statute of limitations, it will still be allowed to proceed if the action is longer than that limit.  Basically, you do not have to start, argue, then resolve your case within the statute of limitations; all you have to do is start it.

In New York, the statute of limitations for medical malpractice claims is prescribed in the Civil Practice law and Rules in Section 214-a.  This section provides that the action MUST be commenced within two and a half years from the act, omission, or failure of the complained of incident.  Two and a half years is SUPER QUICK!  Particularly because a victim of medical malpractice might need to heal from the injuries which will obviously take some time to do. 

But, as I have discussed other times, there are some exceptions to the statute of limitations here.  The first is the continuous treatment doctrine.  This allows for the statute of limitations to not start when the actual act, omission, or failure occurs, but after the last TREATMENT for that illness, injury, or condition.  The purpose of this is to allow a doctor to take as much time as he or she needs to attempt to fix his or her mistake without the patient worrying about not being able to sue the doctor.  Therefore, if a doctor is liable for medical malpractice to a patient on January 1^st, 2000, but continued to treat and fix the mistake until January 1^st, 2002, the patient would now have until July 1^st, 2004 to bring the claim and NOT July 1^st, 2002.  This is because the doctor continuously treated the patient.  Not, this fact pattern is quite rare for a doctor to be trying to correct an error for two years, but I think it is the clearest example of how this doctrine works.

The second exception to the statute of limitations is called the discovery rule.  This rule is particularly available only for foreign objects left in the body of a patient.  This allows for what is technically an alternative period to the statute of limitations.  If a foreign object is discovered three years after it was mistakenly and negligently left inside of a patient, the patient now has one year to bring the medical malpractice claim from the date of that discovery OR from the date of when the patient SHOULD HAVE discovered the foreign object, whichever is earlier.  This means that if the patient had a reasonable belief that there might be a tool left inside him or her, but never thoroughly investigated it, that statute of limitations would run from that time of reasonable belief.  There is, however, an ultimate ten year cap on a foreign object case where discovery is applied.

I hope this is helpful!  I know I have discussed the statute of limitations once a month or so, but I think this is an imperative piece of information to learn about.  I want to make sure my frequent readers have this reinforced as well as helping my new clients understand the law. 

But what do you think?!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/medical%2Dmalpractice%2Dstatute%2Dof%2Dlimitations%2Dan%2Dimportant%2Dfactor%2Din%2Dyour%2Dclaim%2Ecfm www.protectingpatientrights.com-78687 Mon, 02 Apr 2012 08:00:00 GMT So you think a family member, friend, or yourself have been harmed by medical malpractice. But you aren’t exactly sure.  You decide to look it up online and you decide that you should probably talk to an attorney.  You call a law firm and make an appointment to speak with an attorney now.  And when you walk in, the first thing out of your mouth is “I am not the type of person to sue, but . . . .”

The fact is, very few people are actually the type of people to sue.  But if you truly feel the need to find an attorney and go to his or her office, you likely do have a case.  And you shouldn’t risk letting someone get away.  When someone else causes harm to you which costs you money, pain, and suffering, you should get compensated from it!  Especially in medical malpractice cases; these cases deal with your HEALTH.  Money can never remedy damage to your health.  This is why you need to have a trained professional evaluate your case and make the ultimate decision whether or not you have been aggrieved and there is a remedy for your harm. 

But sometimes you can tell when your lawyer is not behind you and your case.  Some firms just want to turn out cases as fast as they can with the mere goal of settling the case to move on to the next one.  I call these “TV law firms.”  You are less so a client, but more just a check.  And they will treat you like that.  But how do you know if your lawyer actually cares or just pretends they care?

I like what I call the “disbursements test.”  A disbursement is a list of expenses that your attorney pays up front, and then at the end of the case you are responsible for reimbursing your lawyer for these expenses.  You have an absolute right to these disbursements and if your lawyer refuses to give you one or even begins to avoid this conversation—GET A NEW LAWYER!

But when you do get your disbursement list, it’s now time to break down this list.  Look and see how many expert witnesses the lawyer has retained to get opinions about your claim.  Survey how much money he or she has actually spent on your case so far.  If you have had this lawyer retained for a long time yet there is a very short list of expenses and it is quite inexpensive, it is time to get a new lawyer!  But if there has been a lot of money spent so far and many experts have been consulted, this is a great sign your lawyer is behind you and not just churning out clients.

This is why it is super important to hire an experience attorney you who know will tend to your case the way you deserve.  After all, this is about you and your health.  You deserve only the best to try and make you whole again.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/how%2Ddo%2Di%2Dknow%2Di%2Dhave%2Da%2Dmedical%2Dmalpractice%2Dcase%2Dhow%2Ddo%2Di%2Dknow%2Dmy%2Dlawyer%2Dthinks%2Di%2Ddo%2Dtoo%2Ecfm www.protectingpatientrights.com-78624 Sun, 01 Apr 2012 08:00:00 GMT A new study from the Journal of Clinical Endocrinology and Metabolism has found a correlation between age, thyroid surgery, and serious complications.  In it, the study looked at almost eight-thousand American patients who had all or part of their thyroid gland removed.  The study concluded that seniors who have a thyroid surgery are much more likely than younger patients to suffer certain serious complications such as heart damage, lung problems, and infections.

In fact, as compared to younger patients, the study found that postoperative complications were actually five times higher in patients who were 80 and older and two times higher in patients 65 to 79 years old.  This is actually quite significant and should be taken into consideration.

But what considerations for medical malpractice should be made?  Well for starters, if the standard of when to perform thyroid operations changes and a physician is not abreast to these changes so he or she performs the surgery anyway and it results in a harm, this is medical malpractice.

Moreover, if a physician fails to discuss and get informed consent from an elderly patient prior to surgery, this could also lead to liability.  A physician MUST discuss the risks, benefits, and alternatives to a proposed course of treatment PRIOR to that treatment.  These means that if the physician fails to do instruct the patient on this, and the surgery results in a harm due to a risk that the patient might not have undertaken, this would be another cause of action for medical malpractice.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/study%2Dfinds%2Dthyroid%2Dsurgery%2Driskier%2Dfor%2Dolder%2Dpatients%2Dmedical%2Dmalpractice%2Dissues%2Ecfm www.protectingpatientrights.com-78575 Sat, 31 Mar 2012 08:00:00 GMT I know the past few days my blog—as many others—has been completely monopolized by the Supreme Court and the Affordable Care Act.  I certainly think it is important and I hope everyone has followed up on the oral arguments and learned a lot about it.  But another decision was handed down on Monday which was certainly overshadowed by the Affordable Care Act litigation.  Initially, I wanted to share it on Monday but my posts got so long I decided to save it.  Again, Tuesday and then Wednesday also got long too so I decided to save it.

So today is a good day to share it.  On Monday, the Supreme Court reversed and remanded a lower court ruling which allowed for patents of human genes.  This means the case goes back to the lower court for arguments that are not inconsistent with the Supreme Court’s opinion.  This case is also GROUNDBREAKING.  This particularly affects researchers searching for cures of various diseases or conditions.  Particularly, this affects cancer researchers the most but also pharmaceutical companies.

The Court tossed the patents of Myriad Genetics Inc. located in Utah for two genes they allege are linked to an increased risk of certain types of cancers.  The lab found that certain mutations in genes would elevate the risk of breast and ovarian cancer and patented these mutations.  The Lab is the only one to sell a certain test that can determine whether or not a person has the genetic mutations and is subject to the higher risk. 

The American Civil Liberates Union has been arguing that human genes should not be able to be patented.  Essentially, they argued that the secrets of life should not be exploited for commercial gain.  And the Supreme Court agreed.  What is somewhat odd is that the U.S. Patient and Trademark Office has actually been awarding patents for human genes for nearly thirty years!  It has just taken this long for a case to reach the Supreme Court and be litigated.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/supreme%2Dcourt%2Ddecides%2Dhuman%2Dgenes%2Dcannot%2Dbe%2Dpatented%2Dkingston%2Dnew%2Dyork%2Dmedical%2Dmalpractice%2Datt%2Ecfm www.protectingpatientrights.com-78459 Thu, 29 Mar 2012 08:00:00 GMT This is my last Affordable Care Act post for awhile—until it is decided—I promise!  But again, history is being made before our eyes and I want to make sure we are all well-aware of these arguments.  We might not see another Supreme Court battle like this for years to come.  This case has really gripped all Americans, and particularly 30 million Americans who are hoping to be covered by health insurance. 

In fact, as I had said yesterday, the fate of these 30 million Americans might actually be held in the hands of one person; Justice Kennedy.  Possibly even Chief Justice Roberts.  But that isn’t decided right now.  Oral arguments will not dictate who has won and who has lost this case.  Justices frequently swap after arguments when they debate the law internally and begin to write their opinions.

Day three at the Supreme Court was another exciting day with two issues.  First, was the “severability” issue.  For this argument, the justices looked at whether the Affordable Care Act itself could still stand—the rest of the provisions—if the individual mandate was ruled unconstitutional.  This is quite significant, because the law has some 450 other provisions that, if the individual mandate was found constitutional, might also be thrown out.  Justice Kennedy recognized that striking the heart of the Affordable Care Act, the individual mandate, would create a rather large amount of judicial discretion to decide which to pick and choose.  This hints that he does not feel comfortable doing so.  The transcript is provided here: http://www.scribd.com/doc/87066898/Health-Care-Reform-in-Supreme-Court-Day-3-Arguments.

The second issue was whether states would be “coerced” by the federal government to expand their share of Medicaid costs by the risk of losing funding if they refused to take part of the revamped program.  Again, this looks like another political split amongst the Justices.  Justice Kagan specifically attacked Paul Clement, the same attorney from the day before, by first noting that ninety-percent of current Medicaid funding if federal funds and then asked if the government is making a bad deal by giving all of this money to the states.  Clement answered no, and Kagan was immediately upset by the response and mouthed “wow.”  The coercion argument grew from the concern that the federal government has been slowly chipping away at the autonomy of the states in regards to their spending matters.  The transcript is provided here: http://www.scribd.com/doc/87085109/Health-Care-Reform-in-Supreme-Court-Day-3-Arguments-Part-2.

So now we wait.  And we wait until June or even July to hear the decision handed down by the Justices.  No matter which way the decision goes, there will be a complete outlash from proponents/opponents, protests, arguments, and of course, political implications for the upcoming election.

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/day%2D3%2Dat%2Dthe%2Dsupreme%2Dcourt%2Dand%2Dthe%2Daffordable%2Dcare%2Dact%2Dkingston%2Dnew%2Dyork%2Dmedical%2Dmalpractice%2Da%2Ecfm www.protectingpatientrights.com-78366 Wed, 28 Mar 2012 08:00:00 GMT Again—we are in the middle of history!  I know yesterday I would share a case with you also handed down by the Supreme Court today, but I think I will hold that off until Thursday.  The Affordable Care Act oral arguments are just TOO important to pass up.  I really hope everyone is following these arguments at the Supreme Court.  They have truly erupted a maelstrom of attention as people have been waiting since last Friday to hear the arguments yesterday, today, and tomorrow!

Today’s arguments were on the individual mandate which is the crux of the Affordable Care Act.  The Supreme Court, somewhat unsurprisingly, broke down along partisan lines with four of the more liberal Justices defending the constitutionality of the act and the other four more conservative Justices attacking the credibility of the Affordable Care Act inferring that it is unconstitutional.  Justice Kennedy, who is renowned for being a swing vote, also attacked the constitutionality of the Act and hinted that he thought it was also unconstitutional.  Therefore, many analysts are saying, if today’s oral arguments were dispositive, the Act would be unconstitutional. 

Essentially, the main argument against the Affordable Care Act was that it is, for the very first time ever, requiring Americans to buy something so that it can be regulated.  This is a groundbreaking issue and never before heard in the Supreme Court.  For the transcript, click here to read it: http://s3.documentcloud.org/documents/328458/supreme-court-health-care-argument-03272012.pdf.

But this doesn’t mean that it is decided and over as unconstitutional.  Once arguments are over, the Justices will go to their chambers and discuss the case ad nausem.  They will begin to write their opinions and speak with their clerks then trade them amongst each other.  This is when minds change, and opinions will get swayed.  One of the most common Justice this happens to is Justice Kennedy and, to a lesser extent, Chief Justice Roberts.  That could easily make the Affordable Care Act constitutional again.

This is particularly likely here because the attorney in support of the Affordable Care Act, Solicitor General Donald B. Verrilli Jr., really got knocked around according to some witnesses.  On the contrary, Paul Clement, who argued against the Affordable Care Act, was said to have given one of the best arguments ever witnessed by the Supreme Court watchers who run the SCOTUS Blog.  Oral arguments are all about presentation, but the Justices will interrupt and pepper even the most seasoned and perfect attorneys.  In this case, where it is apparent that one advocate was much better than another, the briefs and legal research is what will really balance out the issues.

Tomorrow is another very important day in the litigation and nothing has been decided right now.  The severability of the individual mandate is next up, and again tomorrow I will provide some insight and opinion on what happens!

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/day%2D2%2Dat%2Dthe%2Dsupreme%2Dcourt%2Dthe%2Dindividual%2Dmandate%2Dis%2Dtwisted%2Dand%2Dpulled%2Dbut%2Dwhat%2Dside%2Dis%2Dwinnin%2Ecfm www.protectingpatientrights.com-78300 Tue, 27 Mar 2012 08:00:00 GMT Two monumental events happened today at the U.S. Supreme Court.  The first is obviously the health care reform oral arguments, and the second is a lesser-known genetic case handed down today.  However, I think I will talk about that case tomorrow.

I really press and hope that EVERYONE is watching history in the making.  I cannot stress this enough.  We are in the midst of a major revolution in American law.  The Constitution’s Commerce Clause in Article 1 section 8 clause 3 is at being interpreted which will greatly affect a lot of other cases in the future.  Something most people do not realize is that Constitutional law has VERY little to do with the actual Constitution—it is about interpreting it sure, but it is really applying the Constitution itself beyond the four corners of the Constitution. 

In fact, relating to the commerce clause, Congress has been provided more and more support buttressing their powers bestowed on them since 1937, when the “judicial revolution” occurred.  From that period on, I cannot think of ANY commerce clause cases finding Congress exceeding their powers.  Moreover, the Necessary and Proper Clause augments Congress’ power and further finds for the law to be viable.

Today’s arguments were actually by an amicus—NOT a party—because both the petitioners and respondents opposed the classification as a tax.  So the Supreme Court appointed a non-party to argue FOR the tax.  The argument is that if this is a tax, the Anti-Injunction Act prohibits individuals from arguing about a tax before they have been taxed.  Meaning, the Affordable Care Act could not be contested in court until 2015.  This is how some of the lower courts have dismissed the Affordable Care Act before.  For example, in the Fourth Circuit the court made this finding of fact and dismissed it for standing.  However, the Supreme Court Justices hinted that they thought it was not a tax but a penalty, and—moreover—that it should be heard now because it will inevitably be back to the Court in no time!

The transcript from the oral argument has been released and is available here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Monday.pdf?hpt=hp_t2.  Reading this brings CHILLS to my spine.  Just imagine how it is to be peppered on the law by these nine brilliant jurists.  They are considered to be the top legal minds in the country, and you are the lonely attorney standing in front of them arguing the case.  That is, arguing a case with the public squirming behind you and, essentially, the entire United States if not the world watching.  What an experience. 
           
Tomorrow I will bring you an update on day two, and possibly information about another case handed down today by the Supreme Court regarding genetics!  It is truly a Supreme Court health care week!

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com. 
]]> http://www.protectingpatientrights.com/blog/day%2D1%2Din%2Dthe%2Dhealth%2Dlaw%2Dreform%2Dcase%2Dkingston%2Dnew%2Dyork%2Dmedical%2Dmalpractice%2Dattorney%2Ddiscusses%2Ecfm www.protectingpatientrights.com-78238 Mon, 26 Mar 2012 08:00:00 GMT