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As we all continue to await voting on H.R. 1215, a house-introduced bill that would limit non-economic damages in medical malpractice, nursing home, product liability, and pharmaceutical cases, we are constantly reminded of the impact medical error can have on one’s life.

This month, a Colorado woman was awarded $15 million after unauthorized use of an epidural steroid known to cause severe neurological problems. The woman suffered a stroke from the medication and is now paralyzed from the waist down. The woman, Mrs. Robbin Smith, told CBS4 Denver that “Our life has changed forever. I died that day, I completely died that day.” Colorado is one of a handful of states that have passed legislation limiting the amount of non-economic (also known as punitive) damages. Despite a $15 million jury verdict, the second largest malpractice verdict in the state’s history, Mrs. Smith will only receive a capped amount as allowed by Colorado law – likely less than 1/3 of the full amount awarded to her.

Doctors Ignored FDA Warning

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Public Policy Polling (PPP) recently released data from phone polls conducted in late March on the topic of H.R. 1215, a House bill that will be voted on in the next several weeks. H.R. 1215 seeks to limit non-economic damages to $250,000 in medical malpractice, nursing home abuse, prescription and OTC drug and medical device lawsuits. PPP asked the same set of questions to between 500-700 registered voters in 7 red (Republican) and purple states (those that have voted both Republican & Democratic in the past several elections). Polling only red & purple states was intentional, as  Republicans have traditionally leaned towards tort reform, the act of limiting medical malpractice and nursing home abuse lawsuits in favor of protecting big corporations. PPP found that in the polled states of Florida, Georgia, Pennsylvania, Texas, Utah, Alabama and Arizona, support for H.R. 1215 was virtually non-existent, with over 60% of polled citizens in every state disagreeing with the bill.

Even more impressive was the percentage of voters in each state that believed nursing homes should be held accountable if acts of negligence caused the injury or death of a loved one. The amount of support for nursing home abuse and negligence lawsuits was 77% at its lowest (Florida), and 86% at its highest (Georgia).

Finally, each state’s opposition to H.R. 1215 grew stronger as the person conducting the phone interview gave more information on the bill to voters.

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Much has been said about the impact of medical malpractice lawsuits on the increasing costs of healthcare. Although it has been disproven that medical lawsuit payouts are increasing (payouts for physician error have fallen every year since 2001) and that malpractice premiums are rising for physicians (they’re lower than they have been in years), many politicians and citizens are still pointing fingers at the legal system and calling for change. ProPublica, a public interest advocacy group, has begun to examine the true reasons why healthcare costs and insurance premiums for Americans are higher than ever. Among their findings: unjustifiably high administrative costs, high prices for treatment, over treatment, and medical supply waste, all said to be found at the hospital-level. Medical waste seems to be hardly discussed, but with constant talk of changing the Affordable Care Act and the need for controlling surging medical costs, medical experts have begun to speak up about the excessive amount of unused, perfectly good materials discarded from hospitals, physician offices, clinics, and medical centers in this country.

Medical Supply Waste: A Blessing and a Curse

In 2012, the National Academy of Medicine conducted a study that found that an estimated $765 billion a year was wasted on unused, unnecessary medical supplies and equipment. For a point of reference, the study authors noted that the amount of waste was more than the annual budget for the Department of Defense. It’s a jaw dropping fact to face and one that any hospital, nursing home, or clinic employee can attest to. Ultrasound machines, beds, walkers, and other equipment is discarded when newer models come out, or when something is considered a risk to patient safety or infection control. While the primary focus should always be the safety and health of patients, steps should be taken to address how hospitals can better manage their ordering and inventory in order to avoid waste at such an excessive level.

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In a recently published OpEd on The Hill’s online news site, author Paul Bland points out the inconsistency in GOP principles in pushing H.R. 1215, the bill that aims to limit non-economic damages in medical malpractice and nursing home neglect & abuse cases to $250,000. The passage of such a bill at the federal level would also supersede the policies in many states that have already contemplated this issue and, in certain states, enacted their own legislation.

Republican Policies Centered Around Less Federal Intervention

Traditionally, the GOP has supported bills and policies that limit the federal government’s role and give power to the states in which citizens live. Their argument is that there’s no one more equipped than state lawmakers to decide what legislation should pertain to its residents. If one follows their line of thinking, it is nearly impossible to connect Republican-backed H.R. 1215 to their long standing history of preserving states’ rights. The bill is an absolute contradiction to the foundation of the GOP’s belief system.

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In a collaborative report with Chicago physician Dr. Steven Fox and two pharmacy professors who specialize in drug interactions, the Chicago Tribune has pulled back the curtain on a frighteningly common occurrence. Pharmacists at both major chains and independent pharmacies are dispensing medications with well-known interactions with no warning to the patient. The study, conducted over 9 months at 255 Chicagoland, Indiana, Michigan, and Wisconsin pharmacies, found that 52% of the time, pharmacists entirely missed the opportunity to notify the patient of interactions or to call Dr. Fox to confirm that the two conflicting drugs prescribed were intentional, which is considered a best practice.

Prescription drug interactions cause thousands of hospitalizations a year. The FDA, citing data obtained from a JAMA study, estimates that 2 million people a year experience a serious drug interaction (from both prescription and over the counter meds) and that 100,000 a year die from these combinations. The pharmacy failure rate demonstrated in our region alone should be enough of a cause for concern to major pharmacies and small pharmacies alike. If some of the 5 combinations chosen by the pharmacists that led the study were actually taken by patients, the end results could’ve been kidney failure, stroke, birth defects, multi organ failure, extremely low blood pressure, gangrene and even death. According to one of the pharmacists leading the study, the possible interactions of the drug combinations they had Dr. Fox write were ‘no-brainers’ for pharmacists.

CVS Has Highest Failure Rate of Any Chain Pharmacy

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In a co-authored investigative report by ProPublica and The Atlantic, journalist David Epstein outlines the epidemic being played out in hospitals, clinics, and doctor’s offices around the country. Despite evidence to the contrary, physicians frequently are prescribing medicines and treatments that are not necessarily the safest choice for patients. Epstein describes how factors such as not keeping up with current research, relying on popular but unfounded research findings, profits, and bending to demanding patients has led to over invasive treatments and tests, useless medication therapies, and even severe injuries and death.

A Tale of Two Stents

The report begins with the stories of two patients who both were recommended for stent placement. One, a high-stress middle-aged man with chest pains and high blood pressure, used Google to second guess his doctor’s stent recommendation. He avoided the procedure entirely by seeking a second opinion and remains healthy and stent-free. The second man was a 51 year old stage IV lymphoma survivor who, after rounds of chemo and radiation, was suffering from lung scarring. He went to the hospital with chest pains from the scarring and despite his prior cancer history was given a stent, along with medication that would prevent blood clots arising from the implantation site of the stent. Months later, the man’s scarring had progressed to the point where a lung transplant was needed. The anticoagulant medications from the stent had to clear his system before a transplant surgery could take place, or else the man could bleed to death. While waiting for the blood thinners to wear off, the man suffocated to death due to the scar tissue that had invaded his lungs. Using the stent stories of two men with two drastically different outcomes leads to the main point of the report: Widely-known and frequently used procedures are not always the right choice. American College of Cardiology recommendations have been altered to clarify which situations merit stent placement and this has reduced the number of needlessly placed devices. However, in the stents that are implanted, a recent study revealed that half of them are unnecessary. It is important to note here that stents are recommended and have been proven to be beneficial in patients who have suffered a heart attack.

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Levin & Perconti has just settled a medical malpractice lawsuit against Mt. Sinai Hospital, recovering $3.6 million for the estate of Alberto Mendez, who died after improperly administered anesthesia after a cascade of medical oversights. Mr. Mendez’s estate was represented by Founding Partner Steven Levin, Partner Margaret Battersby-Black and Associate Jaime Koziol.

“A Perfect Storm”

In 2012, Mr. Mendez visited the emergency department at Mt. Sinai hospital with obvious symptoms of rhabdomyolysis, a disease that arises from muscle injury and causes muscle fibers to release their contents into the bloodstream. Leaked contents such as potassium can cause serious complications if left untreated, including kidney failure and even death. However, if timely interventions are implemented, rhabdomyolysis is treatable. What happens next has been described by Ms. Margaret Battersby-Black as a “little bit of a perfect storm.” Despite presenting with obvious symptoms that easily led to his diagnosis, Mr. Mendez’s potassium levels rose unnoticed by staff, allowing his overall condition to worsen and cause compartment syndrome in his thigh. Compartment syndrome occurs when a muscle injury causes pressure to build up in a part of the body, ultimately causing muscle death and requiring surgery. Doctors determined Mendez needed a consult on his condition. 2 hours after that determination, surgical residents evaluated Mendez and reached the conclusion that he needed a pressure-needle test to measure the pressure buildup in the affected thigh. 3 hours after calling for the test, it was finally administered, showing that his pressure level was at 80 millimeters of mercury. 5 mmHg is considered safe. 30 mmHg requires emergency surgery. While Mr. Mendez was prepped for surgery, his anesthesiologist, referred to a 12 hour old potassium level test and administered a drug that is specifically not recommended for patients with elevated potassium levels. The paralytic anesthetic, succinylcholine, caused Mr. Mendez to go into cardiac arrest 30 minutes after it was administered. He passed away 28 hours after his admission to Mt. Sinai.

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A report by the Institute of Medicine has brought attention to the frequency of diagnostic errors in healthcare and the outcomes of such mistakes. The report analyzed data from several studies, relying heavily on one particular study led by an accomplished physician from Johns Hopkins.

What is a Diagnostic Error?

An error is more than just assigning an incorrect underlying cause to a set of symptoms. Diagnostic errors are classified as one of three types: misdiagnosis (attributing symptoms to the wrong disease or condition), delayed diagnosis (failure to identify a diagnosis until a later time when symptoms and the underlying condition have become more progressed), and missed diagnosis (failure to attribute symptoms to any condition or disease). The study estimates that the rate of diagnostic errors is between 5-15%, with a much higher rate associated with certain types of cancers and disease. In many cases, a delayed, missed or misdiagnosis can result in serious injury and even death.

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Late last month, Dallas surgeon Christopher Duntsch received life in prison for surgical errors that directly caused the death of 2 patients and serious injuries to many others. The neurosurgeon, often described as overly confident, has left behind a bloody trail of victims in his wake. In a November 2016 article in Dallas Magazine author Matt Goodman describes just some of the carnage caused by Duntsch: ‘There was Kellie Martin, who died from massive blood loss after a surgery at Baylor Plano. There was Floella Brown, whose sliced vertebral artery triggered the stroke that killed her at Dallas Medical Center. There was Duntsch’s childhood friend, Jerry Summers, who woke up from a procedure unable to move his arms and legs. There was a dissection of one patient’s esophagus, and screws that an indictment labeled “far too long” that caused significant blood loss in another patient. One surgeon described these as “never events.” They shouldn’t ever happen in someone’s entire career. And yet they occurred in Duntsch’s operating rooms over a period of just two years.’

With all the horror the article describes, one can only wonder why none of these patients had tried to sue Duntsch and why the hospital hadn’t caught on to his pattern of death and destruction and terminated his employment.

Malpractice Caps in Texas Caused Horrific ‘Domino Effect’

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In our continuing fight to protect patients’ rights and to combat H.R. 1215, a proposal that would cap a patient’s right to fair compensation for medical errors and negligence, we would like to take the opportunity to share more evidence to contradict the myth that medical costs are skyrocketing due to malpractice costs.

Fact vs. Fiction: Medical Malpractice

Below, please see some of the most commonly cited arguments in defense of limiting medical malpractice payouts and review the truth about these so called facts.