Bergen County Personal Injury Lawyer

Medical Malprace III

Donald Caminiti — Tue, 01 Jul 2008 14:51:38 GMT

Unfortunately, neither ancedotal tales, rhetorical hocus-pocus nor blame pointed at the legal profession will put an end to medical negligence crisi in this country.

The Harvard Medical Practice Study, conducted by the University's prestigious School of Public Health, found that among 31,000 randomly selected hospital records of patients discharged in New York State, 3.7% of those patients suffered some preventable "adverse event" during their hospitalizations. More then 27% of those patients should be considered victims of medical negligence, the task force concluded.

Most doctors are caring competent physicians who are concerned for the treatment and well being of their patients. However, applying the above findings nationwide means that negligence in American hospitals is responsible for 80,000 deaths and 234,000 injuries. And, those findings apply only to injuries and deaths in hopspitals, and not in facilities such as clinics, physician's offices, nursing homes, etc. The tragedy is that the overwhelming percentage of these preventable medical errors are caused by a relatively small percentage of physicians.

Recently, in a New Jersey hospital, a physician had his license suspended for having removed parts of a patient's right lung during surgery when in fact the patient was scheduled for surgery to remove a tumor from his left lung. The surgeon then tried to conceal the error by altering his records to show that he intended to operate on the right lung. That medical error caused the patient's death.

While it is often argued that the legal system increases medical costs by requiring doctors to practice "defensive medicine", this medical error was caused, at least in part, because the physician relied on a five-month old CT scan instead of ordering a new scan before performing the surgery. Practice of the oft maligned "defensive medicine" is nothing more than state-of-the-art medical care, practiced conscientiously with high-quality, results.

Originally posted at InjuryBoard by Donald Caminiti

Never Events

Karen Gatlin — Tue, 01 Jul 2008 14:22:59 GMT

"Never events" are identifiable, serious, preventable errors in medical care and are evidence of problems in a health care facility. The exact number of "never events" is unknown, but they result in deaths and additional health care costs. It is estimated approximately 98,000 deaths a year are caused by medical errors. According to the Department of Health and Human Services, "never events" add significantly to Medicare hospital payments, ranging from an average of an additional $700 per case to treat decubitus ulcers to $9,000 per case to treat postoperative sepsis." Further "medical errors may account for 2.4 million extra hospital days, $9.3 billion in excess charges (for all payers), and 32,600 deaths." Never Events include:

Surgical Events

Surgery performed on the wrong body part

Surgery performed on the wrong patient

Wrong surgical procedure on a patient

Retention of a foreign object in a patient after surgery or other procedure

Intraoperative or immediately post-operative death in a normal health patient (defined as a Class 1 patient for purposes of the American Society of Anesthesiologists patient safety initiative)

Product or Device Events

Patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility

Patient death or serious disability associated with the use or function of a device in patient care in which the device is used or functions other than as intended

Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility

Patient Protection Events

Infant discharged to the wrong person

Patient death or serious disability associated with patient elopement (disappearance) for more than four hours

Patient suicide, or attempted suicide resulting in serious disability, while being cared for in a healthcare facility

Care Management Events

Patient death or serious disability associated with a medication error (e.g., error involving the wrong drug, wrong dose, wrong patient, wrong time, wrong rate, wrong preparation, or wrong route of administration)

Patient death or serious disability associated with a hemolytic reaction due to the administration of ABO-incompatible blood or blood products

Maternal death or serious disability associated with labor or delivery on a low-risk pregnancy while being cared for in a healthcare facility

Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility

Death or serious disability (kernicterus) associated with failure to identify and treat hyperbilirubinemia in neonates

Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility

Patient death or serious disability due to spinal manipulative therapy

Environmental Events

Patient death or serious disability associated with an electric shock while being cared for in a healthcare facility

Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances

Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility

Patient death associated with a fall while being cared for in a healthcare facility

Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility

Criminal Events

Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider

Abduction of a patient of any age

Sexual assault on a patient within or on the grounds of a healthcare facility

Death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of a healthcare facility

See: www.cms.hhs.gov/apps/media/press/release.asp?Counter=1863

Originally posted at InjuryBoard by Karen Gatlin

Limiting/Abolishing Punitive Damages is a Bad Idea

Donald Caminiti — Wed, 25 Jun 2008 09:07:00 GMT

Compensatory damages are awarded in meritorious lawsuits to compensate an injured party for his or her lost wages, pain and suffering, personal injury, loss of enjoyment of life and, in particularly tragic cases, the death of a loved one.

Punitive damages, on the other hand, are awarded only in those serious cases where a jury has determined that a defendant has acted with actual malice or with a wanton and willful disregard for public safety. There is no public policy justification for granting unwarranted privilege from the consequences of such wrongdoing. Limiting punitive damages would strip individuals of the power to make reckless or malicious defendants change their misconduct. Please consider the following before voting on this very important issue:

Despite the anecdotal stories, punitive damages are rare and our court scrutinize such awards carefully. According to information obtained from New Jersey Jury Verdict and Review, less than 10 awards for punitive damages have been rendered in New Jersey since 1980 in product liability or toxic tort cases.

Nationwide, in nearly 80 percent of the products liability cases in which punitive damages were awarded, the manufacturer made a subsequent safety change, according to a study by professor Michael Rustad of Suffolk University in Boston.

Limiting punitive damages to an arbitrary level would undercut their deterrent value since reckless or malicious defendants might find it more cost effective to continue their bad behavior and risk paying punitive damages. This is precisely the decision making employed by the Ford Motor Company regarding its Pinto automobile. The company determined that it would be cheaper to sell the defectively designed car, and risk paying damage awards to injured consumers, than it would be to make the car significantly safer at a cost of $11 per car.

Society would be much worse off if injered persons were not able to hold wrongdoers accountable. The makers of asbestos certainly did not voluntarily assume responsibility for the harm they caused. The A.H. Robins Company did not offer to compensate the thousands of women injured by the Dalkon Shield. .

Given these facts, why do the proponents of this so called "reform" seek to protect reckless and malicious wrongdoers from bearing responsibility for their acts? Why do they attack jurors' judgments in awarding punitive damages, when those very same jurors are trusted to put persons to death in capital cases? Finally, why do they argue that the threat of punitive damages increases litigation costs without offering any empirical data whatsoever?

Punitive damages should be neither limited nor aboloshed since it is only the award of punitive damages that has placed accountability where it belongs -- at the door of the wrongdoer.

Originally posted at InjuryBoard by Donald Caminiti

Nursing Home News

Karen Gatlin — Mon, 23 Jun 2008 13:54:00 GMT

The following are intended to improve health care for Americans:

1) The government will institute a program rating nursing homes in order to assist consumers in selecting a nursing home for a loved one. The ratings will be available on a website. Ratings will be another tool to aid consumers and to encourage health care systems to improve their quality of care. Additionally, sprinkler systems will be mandated for all nursing home by a certain date.

2) The Senate is evaluating "arbitration clauses" which prevent lawsuits when injuries occur in nursing homes. The clauses require patients and their families to enter into binding arbitration to resolve complaints. Such contracts, which the nursing homes are insisting be signed on a patient's admission, are frequently signed under duress. Arbitration is quicker and less expensive, and sponsors of the legislation believe that, while arbitration should be a viable option, that patients should not be foreclosed from filing a lawsuit if they so choose.

Originally posted at InjuryBoard by Karen Gatlin

The Truth about Medical Malpractice Claims, Part II

Donald Caminiti — Mon, 23 Jun 2008 09:48:26 GMT

An editorial in today's Star Ledger alleges, with no supporting empirical data, that New Jersey and New York lead the nation in relative monetary tort losses due to malpractice lawsuits and, as a result of "a fear of medical malpractice lawsuits, defensive medicine -- that is, unnecessary tests and procedures to avoid tort lawsuits for "negligence" -- is widespread in New York and New Jersey.

The facts do not bear out the allegation. According to a study conducted by the Harvard Medical Practice Study Group and extrapolated nationally, 80,000 Americans die in hospitals every year from the negligence of their health care providers and, astoundingly, more than 300,000 Americans are injured due to medical negligence. Medical negligence is the third leading cause of preventable death in the United States, behind only cigarette and alcohol related deaths. Notwithstanding that dramatic fact, only about 2% of those injured by physicians' negligence ever seek compensation through the legal process. In New Jersey, malpractice cases constitute only 1.13% of all civil cases filed. And, in a 15-year review conducted by the now defunct Medical Interinsurance Exchange, a doctor-owned insurance company which insured approximately 70% of the doctors in this state, it was reported that jury awards in malpractice cases have been fair and that unjustified payments were rare.

If the Star Ledger focused its editorials on the need to eliminate preventable medical errors, rather than bashing the tort system, patients would likely benefit from better medical care and treatment and doctors would benefit from a commensurate reduction in otherwise meritorious claims.

Originally posted at InjuryBoard by Donald Caminiti

Judgment and Error

Karen Gatlin — Fri, 20 Jun 2008 14:19:00 GMT

JO'Hare VP claims writes: "A breach in the standard of care is more than just an error. A physician can rely on judgment. An error based on his judgment does not automatically reach the threshold of malpractice."

A physician can use reasonable judgment when he or she is confronted with a "Hobson's choice"; that is, possible courses of action which comply with the standard of care, each with benefits and risks. An error based on judgment is not malpractice when the physician is weighing two or more treatment plans which comply with the standard of care, and judgment is actually used in weighing the benefits and risks presented by the alternative treatment plans. While human error cannot be eradicated, injuries caused by negligent medical error should be compensated.

Peter writes: "Errors occur every day in medicine the vast majority do not rise to a level requiring a lawsuit"

True, there are many errors in medical care. It is only when the error which is not based on medical judgment, as defined above, causes injury, that a lawsuit is justified.

Peter further writes: The vast majority of obstetrical claims are settled we have no way of knowing if they were cases of negligence. To presume is disingenuous at best. Take "Bad Faith" out of the equation and let's start allowing cases to go to trial (the serious ones) not the "slam dunks!

Insurance carriers should know whether there is negligence or not. It is pretty clear what the standard of care is and whether the doctor departed from the standard. If carriers and their medical experts do not know if there was negligence, they surely should not settle the case and should allow it to go to trial. The cases are based on medical facts. If the medicine is not on your side, you cannot prevail.

Originally posted at InjuryBoard by Karen Gatlin

Medical Malpractice

Karen Gatlin — Tue, 17 Jun 2008 14:29:58 GMT

In 2006, the Harvard School of Public Health and the Harvard Risk Management Foundation studied over one thousand malpractice files from multiple insurance companies throughout the United States. Claims involving surgery, obstetrics, medication, and delay in diagnosis accounted for 80% of all malpractice claims filed, and the reviewers found that over two thirds of the claims involved clear error. The results of the study confirmed that the majority of medical malpractice lawsuits have merit; they are not "frivolous". In fact, most medical malpractice lawsuits which lacked clear evidence of error received no award at trial. Most malpractice suits involve severe and permanent injury such as patients whose radiologic studies were misread, causing a delay in diagnosis of lung or breast cancer; or patients who were seriously injured or died after receiving incorrect medication.

A separate study in New Jersey (the Robert Wood Johnson Foundation) showed that malpractice lawsuits have a minimal effect on medical practitioners. Physicians in states without "caps" on awards do not relocate to other states. Most "tort reform" has not resulting in increasing physician supply or in reducing insurance or litigation costs.

More recent studies have shown that reforms in the health care industry would reduce the number of patients injured by medical malpractice. Medicare has refused to reimburse hospitals for a number of incidents such as patient falls and development of bedsores in the belief that the quality of care will improve and such incidents can be drastically reduced. Reducing the number of patients injured seems to be a better approach to the problem than denying compensation to the injured.

Peter commented to a prior post that "200 million is lost annually in New Jersey, 30% of which is paid in obstetric claims." Infants who are injured due to obstetrical malpractice require a lifetime of expensive treatment and, sometimes, residential care. These injuries not "frivolous" nor are the suits in which awards are given. The burden is on the parents and then on society when the taxpayers have to assume the burden of care when the award has been exhausted and when the parents are no longer available to provide home care. Again, the answer may lie in reforming the health care system to prevent such errors. The creation of web sites to advise the public of the number of lawsuits of physicians will help to reduce injuries as will the website recently created which allows comparison of various hospitals. Patients should be encouraged to research these sites before selecting a hospital or medical provider. A physician who has numerous lawsuits is the exception, not the rule. The Board of Medical Examiners should focus on the few practitioners who have multiple lawsuits. A small percentage of physicians are responsible for a large percentage of injuries.

See Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, Volume 354:2024-2033, No. 19, May 2006.

See also www.rwjf.org/publications/synthesis/reports_and_briefs/issue10.html

Originally posted at InjuryBoard by Karen Gatlin

The Truth about Medical Malpractice Claims

Donald Caminiti — Mon, 16 Jun 2008 08:56:00 GMT

Medical malpractice costs make up only a tiny fraction of total health care costs. According to a study by the Consumer Federation of America, medical malpractice costs, as a percentage of health care costs, are at an all time low, 0.55 percent. Report author J. Robert Hunter, former Texas Insurance Commissioner and Federal Insurance Administrator, said, "Medical malpractice insurance is amazing value, considering that it covers all medical injuries for about one-half of one percent of health system costs!" Memo from to Interested Persons with attached spreadsheet prepared by J. Robert Hunter, Director of Insurance, Consumer Federation of America, November 14, 2001.

Despite the hype, juries are extremely conservative while insurance companies are making huge profits. The average claims payout by medical malpractice insurance companies is about $30,000 per year and has been virtually unchanged for the last decade, according to a 2001 study by the Consumer Federation of America of actual claims paid. In fact, total insurance payouts to all claimants have hovered between $2.5 billion and $4 billion per year. Memo from to Interested Persons with attached spreadsheet prepared by J. Robert Hunter, Director of Insurance, Consumer Federation of America, November 14, 2001. By comparison, Americans spend twice that much - about $8 billion - on dog food each year. As a result, medical malpractice insurance companies are raking it in, with profits 65 percent higher than the rest of the property/casualty insurance industry over the last decade. "'Malpractice Suits Not Driving Medical Costs Up,' Says Group," Times Picayune, May 5, 1999.

Medical malpractice litigation in this country is far from frivolous. In a major study released in 1999, the National Academy of Sciences Institute of Medicine found that up to 98,000 people are killed each year by medical errors in hospitals -- far more than die from car accidents, breast cancer or AIDS. Kohn, Corrigan, Donaldson, Eds., To Err is Human; Building a Safer Health System, Institute of Medicine, National Academy Press: Washington, DC, 1999 (These figures vastly underestimate the magnitude of the problem since hospital patients represent only a small percentage of the total population at risk). Yet eight times as many patients are injured by medical malpractice as ever file a claim; 16 times as many suffer injuries as receive any compensation. Harvard Medical Practice Study, Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York, 1990.

Originally posted at InjuryBoard by Donald Caminiti

What if my employer denies I was hurt at work and am not receiving any money?

Carter Corriston — Wed, 11 Jun 2008 12:24:21 GMT

What if my employer denies I was hurt at work and am not receiving any money and I cannot work? If you allege an injury at work and your employer denies the injury or that it happened at work there are several things you should do. First, contact an attorney right away they may be able to provide information that will help get you the benefits you are entitled to. If the employer or insurance carrier still refuse to offer benefits you can apply for Temporary Disability from the State. You will have to complete a form regarding your injury and inability to work. Your treating Doctor will also be asked to complete paperwork indicating the diagnosis and whether you are capable of working. One of the questions you will be asked is whether the injury occurred at work. You must provide accurate information regarding this question. The State will then ask you to complete a form that requests all the information regarding your employer and their insurance carrier. You cannot receive benefits from the State unless you first file a Claim Petition against your employer in Workers Compensation Court. You will then be entitled to receive State Benefits which will become a lien against your Workers Compensation Claim. If you are successful in your workers compensation claim then your employer will be obligated to reimburse the State for any money your received from them plus pay you the difference in what you should have received under the Workers Compensation rates. This is due to the fact State Disability pays at a lesser weekly rate then Workers Compensation. In addition the Court can award you 25% more as a penalty to the employer for wrongfully withholding payments. You should act quickly because the delay for payment can be anywhere from three to ten weeks due to the various forms that must be submitted and reviewed.

Originally posted at InjuryBoard by Carter Corriston

Emotional Distress Claims

Donald Caminiti — Wed, 11 Jun 2008 10:50:37 GMT

New Jerseyans who suffer emotional distress after witnessing the death or serious injury of a family member in a car accident can claim damages from auto insurance companies, the state Supreme Court ruled today.

In a 4-3 decision, the high court said that some claims of emotional trauma are not subject to the "verbal threshold" provision in the 1998 state law that limits a driver's ability to sue

The case was brought by awoman who was diagnosed with post-traumatic stress disorder after watching her mother die when their car was rear-ended in Newark in 2000. She filed a claim based on her emotional distress, which was dismissed by a trial court in April 2004 because her own physical injuries did not meet the "verbal threshold" requirement of the Automobile Insurance Cost Reduction Act of 1998.

The N.J. Supreme Courtshould be applauded for standing up forthose unfortunate persons who, through no fault of their own, suffer serious emotional injury as a result of having witnessed serious personal injury or death of a loved one as a result of another's negligence.

Originally posted at InjuryBoard by Donald Caminiti