Articles Posted in Professional Malpractice

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Earlier this week we pointed to an Observer story that discussed in detail a case of doctor discipline gone awry. The bad doctor in that case was described in horrific terms by his own colleagues. Yet, even though those who saw him operate on unsuspecting patients went to great lengths to warn others about his poor skills, it took months and months before any official action was taken. In the meantime, at least two patients were killed and several others paralyzed as a result of his malpractice.

Doctor Discipline – Patients Should Come First

This topic has received significant attention over the past few weeks, as various other media outlets have honed in on the consistent problem of lackluster enforcement by state medical boards. A USA Today article–which we also discussed–provided similar examples of chronically negligent doctors who are allowed to see patient after patient. The problem is not limited to a single state or practice area. It is widespread.

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If you suspect that you or a loved one may have been affected by a medical error, you may contact a lawyer. This first contact may take the form of a phone call or perhaps sending an online message. After that an in-person meeting will likely take place where more information is shared and the legal professional attempts to determine if you have an actionable claim.

Pursuing a medical malpractice claim is an expensive proposition. The time and cost of preparing court documents, conducting depositions, hiring expert witnesses, and the many other tasks are significant. For that reason, not just any possible case can be advanced. Virtually all of these matters are taken by attorneys on a contingency fee basis. This means that the attorney/law firm fronts all of those costs, only collecting if they are successful in recovering a settlement or award for the plaintiff. If they are not successful, then those costs are lost. For this reason, attorneys are careful when meeting with potential clients, understanding their situation, and considering whether to pursue the matter.

But what analysis goes into determining whether a claim is likely to succeed and worth pursuing? It is a complex answer that involves different factors.

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Last week Forbes published a helpful primer that goes over many general, but critically important and practical topics related to medical malpractice. Considering the large number of people who may one day be affected by a medical error, it is helpful to re-visit some of the general issues that all Illinoisans should know about the legal ramifications of medical negligence.

For one thing, as the article notes, everyone should understand the full scope of the problem. Negligence by medical professionals is not a fluke occurrence–it is the third leading cause of death in the country behind only heart disease and cancer. Every 43 seconds there is another payout in some form–settlement or court judgement–as a result of a medical error.

Considering that a large number of errors go without legal consequence, this is a truly staggering number. According to recent estimates, even though about 200,000 people are killed every year as a result of medical malpractice, only 15% of personal injury cases relate to medical errors. This is in large part because of the expense and complexity of these legal cases. Proving malpractice can be challenging, because of the nuance in the law and the cost of hiring experts, etc. This is one of many reasons why it is important to have the aid, as soon as possible after an incident, of an experienced attorney. The legal professional can provide advice on the likelihood of success.

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It is the same in any profession: the longer you work the more real-world skills you obtain. Learning about time pressures, unique clients, office dynamics, work-life balance, how to handle an emergency, and other issues can generally not be learned from a book. No matter how long one is forced to train and study before entering a field–from medicine and law to accounting–there is no replacement for on-the-ground training that comes with experience. Obviously this is something that society has understood since the earliest days with the use of apprenticeships and other training programs.

Most consumers also understand the value of experience. It is no wonder than many professionals, including doctors and lawyers, prominently display their years and manner of experience so that prospective clients and patients understand what they are getting.

When It Truly Matters

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The safety of all consumer goods is critical. But the need for tight standards to control systematic manufacturing or design problems is perhap most important when it comes to the porducts that are used in the medical profession. Medical tools and devices are often involved in very invasive actions, and if there is a problem the potential for serious harm is greatly heightened. In fact, there are even some products that are actually implanted into the body and stay there. If those medical devices have problems it is almost inevitable that there will be severe consequences for the patient.

All those working on these products are well aware of these risks, and regulators are charged with providing necessary oversight to ensure basic safety standards are met. Patients are unable to determine the safety on their own, and so they rely on the good work of designers, manufacturers, and public regulators.

Unfortunately, history is a reminder that those standards are often not met. For example, several hip implant products have recently been pulled from the shleves but not before affecting thousands of patients who were harmed by the defects in the devices. These metal-on-metal hip replacement products include those made by Strker and DepPuy, two of the leading companies in the field. Our lawyers are working with those in Chicago and throughout Illinois who have been harmed by these products.

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The “typical” medical malpractice case involves something pretty clear: a patient receives the wrong medication and is injured, a surgeon accidentally makes a mistake which causes harm, or a diagnosis is botched leading to long-term problems. In all of these incidents a medical patient does not receive care up to reasonable standards and the patient is harmed as a result. But it is not always that simple–and complex legal issues might arise in those more atypical cases.

Third-Party Liability in Med Mal Cases

For example, not long ago one state court addressed an issue related to third party liability for medical mistakes. The case involved a doctor who failed to explain how a patient’s medical condition would affect her driving ability. The patient subsequently drove recklessly and caused serious harm to another. The patients had liver and kidney problems which come with latent driving risks. She wasn’t warned about those risks and blacked out when behind the wheel–causing the serious accident.

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A recent editorial published by CNN delves into a critical issue that perennially lies underneath various policy making proposals at the local, state, and federal levels–the need to protect patient legal rights. Fortunately, we have not heard as much this election cycle about tort reform proposals as we have in the past. But it is critical not to assume this means that the issues are behind us. Not only do we need to fight for the rights of those who live in places where laws already severely limit their right to fair compensation following malpractice, but there are always new threats made by insurance companies and big medical interests to press for more changes.

The CNN editorial, written by the President of the American Association for Justice, points out that tens of thousands of patients are killed each and every year as a result of preventable errors. Hundreds of thousands (perhaps even millions) more are hurt unnecessarily as consequence of those mistakes. When taken as a form of injury, medical malpractice is the sixth leading cause of death in the country. The consequences are not only medical–there are very real financial losses. According to the editorial, every year nearly $27 billion is spent unnecessarily because of this negligence.

All discussion about changing the legal rights for patients and their families must keep those stats in mind. Unfortunately, the discussion often ignores those safety issues. We must keep bringing it up so that the real consequences of medical malpractice are part of the discussion.

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The UCLA Newsroom reported this week on a new clinical study that took a look at how the development of pressure sores at hospitals ultimately impacted the patients who developed those sores. As blog readers likely know, these pressure sores are serious skin breakdowns that often affects patients in hospitals and residents of nursing homes. Also known as pressure ulcers or bed sores, these injuries are almost always preventable with proper care. Re-positioning, grooming, hydration, and proper nutrition are also key components of keeping patients healthy in this regard.

Pressure Sore Consequences

This latest research effort suggests that there is a direct correlation between the development of pressure sores and increased hospitalizations and patient deaths. In other words, these sores are not minor problems that cause inconvenience to patients–they are serious. It is critical that all healthcare providers treat them as such.

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It goes without saying that there is little room for error when it comes to medical products that are inserted inside a patient body. It is absolutely imperative that all mistakes be avoided when patients agree to have a device surgically installed in their body to treat a certain ailment. Unfortunately, there are many cases of various objects their either do not work as intended or actually cause more harm. In those cases, lawyers often fight hard to ensure the affected families have their legal rights respected.

Spinal Implants Problems

One of the more recent examples of this scenario involves BMP spinal implants–like one known as Infuse. Some “off label” uses of the device may actually cause injuries and harm to patients.

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Transparency and accountability are buzzwords when it comes to improving patient safety and limiting medical malpractice. The idea is that if hospitals, clinics, doctors, nurses, and other medical professionals are held accountable for their mistakes–and if those past problems are made available to the public—then patients will make decisions based on the quality of services they are likely to receive. Essentially the economic laws of competition will apply to improve care.

But for all the talk about the need for more accountability and transparency in the caregiving process, we still have a long way to go, including here in Illinois.

“Operating in the Dark”