Rhode Island Injury Lawyer Blog

Articles Posted in Medical Malpractice

In a somewhat surprising study released this week from Johns Hopkins University, it has been revealed that medical error has resulted in the death of approximately 250,000 people per year placing it third as the leading cause of death behind heart disease (611k) and cancer (585k).

The study does go on to state that not all of these instances are linked to individual error, nor is every such instance actionable in court.  Instead, quite a large number of these cases are systemic in nature such as, poor coordination of care, insurance gaps and lack of necessary protocols.  In other words, failure in the system from affording care, to receiving different care from different doctors may be as much to blame as individual medical error.  Improving and streamlining procedures as well as opening dialogue about where and when mistakes are happening are seen as two critical areas in need of improvement.  Of course, systemic problems are nearly impossible to litigate as it is a fundamental health care problem in this country.

A good percentage of those 250k deaths are directly linked to medical negligence.  Errors in treatment either by a single doctor or a team of doctors, however, may be actionable in a medical malpractice claim.  A doctors negligence can have profound, permanent, life changing effects on the victim and in those cases it is worth speaking to an experienced medical malpractice attorney.  While this article speaks to deaths caused by medical malpractice, the victim does not need to die in order for the estate to have a claim.  Any life changing medical error may be the basis for a lawsuit.

I have seen an avalanche of new medical malpractice inquiries coming to my office regarding overdoses caused by prescription painkillers, most notably fentanyl.  Just during July I received three inquiries from families of people killed while using the fentanyl patch.  It may come as a surprise to most readers of this post to find that an FDA approved drug has caused so much disaster.  The fact is prescription painkillers killed over 16000 people in 2013.  Heroin?  Just 6200.  I will leave it for a different blog and more analytical political observers to ask why drugs that kill tens of thousands of people are approved by the FDA while marijuana (which killed zero, yes 0) people in 2013 remains illegal.  (check out drugwarfacts.org for more information and the total chart of which drugs kill people.)

Just because a drug is FDA approved does not mean that an overdose or death caused while using the drug is not a case of medical malpractice.  After all, if legally prescribed and used, where is the negligence?  Quite the opposite, there is a strong chance of malpractice.  I have handled these cases in the past and I am quite familiar with the power of this drug.  Fentanyl is shockingly strong and intended for use only for the most severe cases such as dying cancer patients in hospice.  Prescription of the patch outside of its recommended use or for the wrong patient can be grounds for a medical malpractice claim.  In other words, a person with a marginal history of back pain should not legally be prescribed such a powerful drug.  Fentanyl patch overdose can often be caused because it is prescribed to the wrong person or the person is not properly informed how to use the patch.

The patch itself can cause an overdose but it is particularly dangerous when paired with other drugs, particularly anti-anxiety drugs.  This interaction can be fatal and it is graded as a moderate drug interaction, meaning that it should be avoided and only used under close observation.

After five years of work on a complex medical malpractice case, and in collaboration with an excellent Providence law firm, I am absolutely thrilled to announce the $5 million dollar settlement for a young girl whose life will never quite be the same due to doctor’s negligence.

The mother of the young girl first brought this case to my attention when her daughter was just five months old. The young girl had a very difficult delivery resulting in approximately 20 minutes without appropriate oxygen. She was immediately airlifted to the NICU at Women & Infants where everything was done to save her life and reduce the trauma suffered. Despite an admirable job at the second hospital, the damage was already done at the first. As a result of the medical negligence, the young girl, now 6, is destined to experience cognitive difficulties, organ failure and kidney problems. Her life expectancy was also dramatically reduced.

Not unlike this case, medical malpractice injuries are often devastating and life changing. The cases are complex and vigorously defended. As we did with this case, I look to work with the best expert witnesses and collaborative attorneys to ensure the best possible result in medical malpractice cases.

This is an unfortunate story that seems unable to run out of steam. A nationwide outbreak of meningitis is being linked to a specialty pharmacy company here in Massachusetts. Every day the Center for Disease Control has increased the number of victims who have caught a deadly strain of meningitis after receiving a tainted steroid shot intended to relieve back pain. The current number stands at 119 cases of meningitis with 11 documented deaths related to the tainted steroid injections. The cases of reported illnesses has spread to ten States.

The company voluntarily recalled the steroid that was sent to clinics in 23 States after a tainted vial was found on their own premises. They have since expanded the recall to include everything they have distributed.

While there are no confirmed cases of meningitis here in Rhode Island, the Department of Health continues to notify potential victims of the possible exposure. An additional 50 patients have been notified of the link today. Victims who have contracted meningitis from the tainted injections will have a strong product liability case against the manufacturer who clearly released an unsafe and defective product into the market.

Missouri was one of many States that impose caps on noneconomic damages (i.e. pain and suffering) in personal injury cases, specifically medical malpractice. In Missouri, an injured person could receive no more than $350,000 above his or her economic losses (medical expenses and lost wages). While that may seem like a great deal of money, it is very little to someone catastrophically injured by another’s negligence. For a simple example, consider a medical malpractice case where the doctor amputates the wrong leg (think it can’t happen – look here). That person will spend the rest of his or her life in a wheelchair and would legally be unable to recover more than $350,000 in damages!

Yesterday, the Missouri Supreme Court in Watts v. Cox Medical Center, ruled that the cap on damages was an unconstitutional infringement of ones right to a trial by jury. The Federal Constitution (mirrored by the States) guarantees the right of anyone with cause to have a trial decided by a jury of his peers. It should always be the jury who decides the outcome of a case including the damages, and not lawmakers influenced by insurance companies.

It has long been an argument of the plaintiff’s bar and American Association for Justice that caps on tort awards were unconstitutional, and this Supreme Court decision affirms our position. Hopefully, this decision will influence other States to make the same decision which they should agree is constitutionally mandated. This decision should also strike a blow for the tort reform movement (although this election campaign has not brought up the topic of tort reform nearly as much as four years ago). Numerous studies, including those conducted by independent groups with no stake in the tort reform debate, have shown that medical caps and restrictions on personal injury claims do not reduce health care costs and lead to lower quality patient care.

Lifespan, which manages several RI hospitals including: Rhode Island Hospital, Miriam Hospital, Newport Hospital and Hasbro Children’s Hospital, has today announced that as many as 2,000 patients over the past year may have received an erroneous prescription at one of these Lifespan Hospitals. Lifespan is blaming this medical malpractice error on a computer, or software, malfunction. Their statement does not indicate whether anyone was harmed by this malpractice. It is understood that most affected patients have been contacted regarding this error or are in the process of being contacted.

Giving a patient the wrong medication, the wrong dose of a medication or unnecessary medications are all examples of medical malpractice. While the full extent of these errors by Lifespan are unknown, you may be entitled to collect personal injury damages if you were injured or harmed because of receiving incorrect medication. At the same time, not all victims of this mistake are entitled to compensation. If you discovered the error before ingesting the medication or if you ingested the medication but were not harmed, you may not be entitled to compensation. However, if the wrong medication caused you personal injury, even temporarily, you may be entitled to damages for pain and suffering, medical bills (if you were required to seek treatment) and lost wages if you were unable to work.

It is unclear if anyone was seriously injured by Lifespan’s mistake but given the high risk of pharmaceutical medication, it is likely that someone was seriously injured. Patients may have been given medications to which they are allergic or may have been given medications that have harmful or potentially fatal interactions with other medications. Overdoses from receipt of the wrong amount of medication are also possible. Anyone seriously injured because they were prescribed the wrong medication should contact an experienced medical malpractice attorney right away.

It’s been a while since I last posted but I was pre-occupied with a trial and I return to my office to find welcome news in the mail. Today I found a recent report from the Cato Institute, a right wing conservative think tank, that has confirmed what this blog has long held, namely, that caps on medical malpractice (or other tort claim) awards is a mistake! It is unusual to hear this coming from a right wing think tank since it is generally the province of Republicans and right-wingers to fight for tort reform. Nevertheless, their report has indicated that “caps unfairly shift the costs of malpractice injuries from negligent providers to their victims.” The study further states that “reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off”.

This last sentence is critical. The accountability that medical malpractice and personal injury lawsuits provide is the one last defense that many consumers have from being unfairly harmed through the negligence of others. Capping damages not only invites increased negligence it denies adequate resources to those severely injured through the negligence of others.

Consider that the FDA has a long record of failing to keep unsafe food out of the distribution change and unsafe drugs from the pharmacy counters. They simply lack the resources and the personnel to ensure the safety of all of the consumer products under their protective umbrella. If tort reform were to interfere with the ability to bring lawsuits against negligent companies, then we are not far from welcoming products such as chinese dry wall, toxic food, and dangerous drugs into the market without proper oversight.

Despite ample evidence (here, here and here) that medical malpractice lawsuits are not the cause for soaring health care costs and poor patient care, Massachusetts Governor Deval Patrick is proposing a bill intended to reduce medical malpractice lawsuits. The Governor, taking a page from steps taken in other States, is proposing a bill to amend medical malpractice law in Massachusetts. Under the proposal:

…doctors in Massachusetts would be able to apologize to patients — without the risk that their apology could be used against them later, in court. The state would also implement a six-month “cooling off period,” so that hospitals and patients could try to resolve problems without lawsuits.

President Obama, as part of his healthcare reform and recently discussed at the State of the Union Address, is also suggesting potential reforms. One such suggestion is the creation of a Health Court which will remove the jury from the process (despite the Constitution guaranteeing the right to a trial by jury) in favor of a single Judge. The intent is to streamline medical malpractice awards because juries often have a wide range in the amount of money that they award.

The Rhode Island Health Department has disclosed today that two serious medical errors occurred last summer at Women & infant’s Hospital in Providence. In both instances, medical and surgical equipment was left inside the patient after the procedure was completed. People often wonder how does such obvious medical malpractice occur? Yet time after time we hear about surgical material left inside patients, wrong site surgeries, and more. This story also shows that obvious medical malpractice can even occur at hospitals with very good reputations and records.

The first incident occurred on July 24 when surgical gauze was left inside a patient following childbirth. The second incident occurred in August when a piece of thread from surgical gauze seperated and was left in the patient’s abdomen. From the Department of Health website:

HEALTH conducted an investigation and determined that during the July incident, the obstetrical team did not follow the hospital’s policy about communication of patient information when the staff changed shifts resulting in the gauze roll being left in the patient’s vagina. During the August incident, HEALTH determined that the hospital’s surgical count policy was not followed. At the conclusion of the procedure, a surgical staff member noticed that the marker thread had separated from a gauze pad used during surgery. A piece of x-ray sensitive thread was found and removed before the patient left the operating room, but an x-ray was not done to confirm that the entire piece of thread was removed.

Doctors are well educated people with good intentions, but mistakes can and do occur, even extremely obvious ones. If a doctor failed to treat a patient within the recognized standard of care, it may be grounds for a medical malpractice lawsuit.

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Three years ago, a 22 year old Cape Cod woman, Laura Hope Smith, died following an abortion procedure. The estate of Ms. Smith is represented by a Boston medical malpractice attorney and there will surely be a civil lawsuit for her wrongful death. What makes this case interesting is that the Commonwealth of Massachusetts is charging the obstetrician, Dr. Rapin Osathanondh, with manslaughter.

Medical malpractice, generally, is a civil action between the injured party and the doctor who failed to treat the patient with the necessary care. If the plaintiff can prove that the doctor was negligent, he or she may collect personal injury damages. In this case, the care offered to Ms. Smith was so far below the necessary standard of care that the Commonwealth of Massachusetts believe it was criminal behavior and have charged the doctor with felony manslaughter. The prosecutors allege that Dr. Osathanondh’s negligence was “willful, wanton, and reckless.”

The board (of medicine) said Osathanondh did not have any means of monitoring Smith’s heart, and did not have oxygen or a functioning blood pressure cuff in the room during Smith’s abortion. The board also alleged that he “failed to adhere to basic cardiac life support protocol” and did not call 911 in a timely manner.

Osathanondh was also accused of deceiving staff members by claiming he gave Smith oxygen during the procedure and by saying that Smith was monitored by a pulse oximeter during her procedure. Neither step was taken, the board said.

Dr. Osathanondh, or his insurance company, will most likely pay the Estate of Ms. Smith for her unfortunate loss. It is quite uncommon for doctors to be charged with criminal cases in addition to the civil lawsuit by the family, so this will be very interesting to follow. To add another twist to this case, the defense must be careful to select jurors who will listen to the facts of the case and not find Dr. Osathanondh guilty of manslaughter because he performs abortions.

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