How Spine Implants Cause More Harm than Good

April 16, 2014

6087539168_6117cd51b0_b.jpgStimulation therapy is a growing treatment intended to relieve chronic pain in the spinal cord by sending electrical pulses through an implant. In some patients, the procedure works well and pain is well-managed. In others, the operation turns dire, causing permanent paralysis. Medical device attorneys at Pintas & Mullins look into these implants and who is to blame when a patient is paralyzed.

Spinal stimulator devices are manufactured by a variety of companies, including Medtronic, Boston Scientific, and St. Jude Medical. The devices are implanted into patients near the spinal cord, where a pulse generator sends low currents of electricity into extension wires, which are placed on the spine. The leads then transmit an electrical current onto the spine that distracts the brain from recognizing - and therefore feeling - pain signals.

Patients are typically admitted to hospitals for overnight stays, and can return home shortly after implantation with, ideally, a pain-free life. For dozens of patients, the procedure goes too far, causing partial or permanent paralysis or motor weakness.

In most of these cases, the injury occurs after the spinal cord is punctured or compressed by the electrical conductors, which are inserted into a narrow cavity called the epidural space in the lower spine (this is where an epidural anesthesia is administered during childbirth).

According to the FDA's database, nearly 60 patients were paralyzed by spinal stimulators in 2013 - up from nearly 50 the year before. It is worth noting that the FDA's database is far from complete, and many assert that injuries are vastly underreported.

Who is to Blame?

Doctors highlight a potential cause of the problem - insufficient awareness by doctors on the true risks of operating around the spinal cord, and proper techniques for avoiding the most dangerous areas. Much of the blame, they assert, rests on insufficient training and lack of surgical guidelines that leave physicians unprepared.

Part of the reason for this is that spinal stimulation procedures are conducted by various types of doctors: orthopedic spine surgeons, neurosurgeons, or anesthesiologists. Thus, no one medical society (which are typically responsible for developing training standards and practice guidelines) is held responsible for issuing such standards and performance tracking.

It may sound trite to say that surgical outcomes largely rely on the experience and skills of the doctor - but in spinal stimulation implantations this is particularly true. A physician at the Dartmouth-Hitchcock Medical Center stated that the surgery initially seems straightforward and simple, which attracts doctors who are not familiar with how risky a spine procedure actually is.

Medical device manufacturers like Medtronic claim they monitor adverse event reports and update the product labelling to reflect new or increased risks. Among these include the possibility that scar tissue can form around the device electrodes and cause nerve damage (which is also the site of paralysis). Companies like Medtronic offer weekend-long training sessions, however, experts agree that these courses are not sufficient.

Stimulators can cost between $20,000 and $60,000 each, but about a third of patients experience complications because of the device within a year of implantation. Nearly one in four patients have to undergo additional surgeries to fix the adverse side effects.

Continue reading "How Spine Implants Cause More Harm than Good" »

The Safety and Risks of Drugstore Clinics

April 8, 2014

1570415819_829c90fc56_b.jpgDrugstores and supermarkets like CVS, Walgreens and Target are expanding their walk-in medical clinic throughout the country to meet high public demand. There are several factors driving this new healthcare trend, and relatively little is known about how this will affect patient wellbeing, if at all. Our team of medical malpractice lawyers offers some guidance on how ill patients can best protect themselves.

Nation-wide, there are now about 1,600 walk-in minute clinics - a number that is expected to double within the next three years because of the newly-enacted healthcare program and an increase in public demand. With more people able to afford health insurance, there is an increase in strain on primary care physicians. Experts estimate that by 2020 there will be a shortage of primary care providers numbering around 45,000.

Because of this, patients with minor ailments like ear infections, coughs and colds, or pinkeye, are choosing to stop by a minute-clinic instead of waiting days for an appointment. At the clinic, patients typically sign in using an electronic system (no appointment needed, and no receptionist) and are given a wait time. Once the nurse practitioner calls your name, you walk into a small room and are given an examination.

Various services can be performed at a minute clinic, including physicals, tests for strep throat, ear infection, and the flu. In recent years, the clinics have expanded their services to screen for and even diagnose chronic conditions like diabetes and high blood pressure. Practitioners also often administer vaccines or write prescriptions.

Minute clinics are staffed by either nurse practitioner or a physician's assistance, but there are never doctors on staff. Many are affiliated with specific doctors or hospitals if they need to call someone to consult with a physician.

When to Make a Doctor's Appointment

Someone who is prescribed many different medications, has a complex medical history, or serious illness, should make an appointment with their physicians. Minute clinics will not accept infants under 18 months or those who clearly need immediate, emergency medical attention. Beyond that, it is up to the discretion of the patient.

They do take most insurance programs, and even for the uninsured, prices are typically listed on company websites or in-store. Various doctors' groups object to this new growing trend, particularly among pediatrics, which is warning parents not to rely on minute clinics over primary care needs. Medical professionals state that it is wisest to consider minute clinics as supplementary services.

Continue reading "The Safety and Risks of Drugstore Clinics " »

Another da Vinci Robotic System Approved for Market

April 3, 2014

fort-belvoir-community-hospital-astounds-with-groundbreaking-technology-and-devotion-to-patient-care.jpgIntuitive Surgical, the company that makes the da Vinci Robotic Surgery System, recently announced that it gained approval for a new robotic system, called the da Vinci Xi. Our team of da Vinci surgery injury lawyers takes a closer look at this new system and how it could affect patient care.

Robotic surgical systems are aggressively marketed to hospitals throughout the country as the "new, latest, most advanced" technology. In fact, there are no conclusive studies that show that such robotic systems provide better care for patients - quite the opposite. Hospitals are agreeing to pay millions of dollars (an average of $1.85 million) for these systems only to stay up on the competition.

The new Xi features thinner arms than the traditional da Vinci, and is intended to perform more complex surgeries. It also includes a fluorescent imaging system, nicknamed Firefly, which the company believes will improve patient safety by improving surgeon's seeing ability. Other upgrades include new joints for greater range of motion and improved visual definition.

To use the robots, surgeons sit behind a console and operate the device using a control panel, which includes a screen, pedals and joysticks. The system has raised much controversy since its initial 2009 release, and several lawsuits have been filed against Intuitive by patients seriously, some fatally, injured by the robots.

Adding fuel to the fire, the FDA approved the Xi robotic system through a special process (called the 510(k) approval) that requires minimal testing. What makes this so disconcerting is that Intuitive has been reprimanded by federal authorities for withholding information on how many patients have actually been injured by the robots. All injuries and deaths associated with a certain type of medical device are reported by the hospital directly to the manufacturer. The manufacturer is then required to inform the FDA within 30 days of receiving the report, and is also required to investigate the injury or device malfunction, sending the FDA a report of this investigation once it is completed.

According to lawsuits against Intuitive, the company was systemically underreporting the complications caused by da Vinci robots, along with knowingly misclassifying serious injuries and deaths as "other." The FDA was then never informed of the true injury risks from the da Vinci, and the public was never informed. The company also concealed three separate voluntary recalls from the FDA, which involved defective da Vinci parts. Due to their lack of reporting, dozens of patients were injured - specifically, burned - by malfunctioning parts.

According to reports, patients who are obese or who suffer from other serious medication conditions are significantly more likely to suffer an adverse event from the da Vinci. Other studies note that robotic surgery is not at all superior to traditional methods.
The original system was approved for minimally-invasive laparoscopic surgeries on the gallbladder and for gynecologic procedures. It was later approved for more complex procedures, such as chest, cardiac, and urologic surgeries.

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Changes to Come to California Malpractice Laws

March 31, 2014

witkin-ninth-edition-ca-law_l.jpgIn 1975, the California government established a maximum money amount injured patients could receive for noneconomic damages in malpractice lawsuits. Nearly four decades later, the $250,000 cap has yet to adjust to keep up with inflation. Medical malpractice lawyers at Pintas & Mullins explore how and why California advocates are now pushing to raise the cap.

Consumer Watchdog, a nonprofit public advocacy group, is organizing the campaign to raise the damage cap among other changes, which its president believes will significantly impact patient safety for the better. In addition to raising the cap, proponents are also aiming to require doctors to undergo routine drug and alcohol testing.

If the initiative qualifies, this law change will be put to California voters in November 2014. The drug testing aspect of the law change is actually a major move - nationally, physicians are much less scrutinized for this type of impairment than other high-risk professions, like firefighters or police officers. We recently wrote a post on some particularly horrendous cases of surgical malpractice in Texas, which was likely caused by the physicians' addictions to alcohol and prescription drugs.

Why Malpractice Caps at All?

Currently, 35 states have some kind of law placing a maximum on the amount of noneconomic damages patients can recover in malpractice suits. California's cap, at $250,000, is toward the lower end, and prevents many patients from ever bringing claims against hospitals or doctors who injured them at all. The costs of expert testimony and continued litigation can add up quickly, and in many cases, the costs are far too great to make a lawsuit seem worth it, so the injury case is never pursued, and the patient is left without justification or compensation for their pain and suffering.

Earlier this month, the Florida Supreme Court ruled that these types of noneconomic damage caps were unconstitutional. In its decision, the court argued that the caps only protected doctors and hospitals from facing responsibility for medical negligence. They said damage caps are arbitrary, unfair, and hurt the most vulnerable patients. The justices concluded that noneconomic damage caps offended the "fundamental notion of equal justice under the law."

The initiative in California would raise the damage cap to $1.1 million and will make sure that number will be able to adjust to inflation. The law would also require doctors and nurses to check patients' prescription drug histories using a state database. This is meant to identify and monitor people who "doctor shop," looking to get different prescription medications to abuse.

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Florida Supreme Court Strikes Down Medical Malpractice Damage Caps

March 14, 2014

4859672786_88e1695eae.jpgGood news this Friday, the Florida Supreme Court just became the latest state to strike down damage caps for pain and suffering in medical malpractice lawsuits. The court ruled the limits unconstitutional and only shielded doctors and hospitals from liability, at the expense of injured patients. Our team of medical malpractice attorneys digs into this case and others like it throughout the country.

Damage caps for pain and suffering in malpractice cases are common in conservative states trying to lower insurance premiums for doctors and other medical practitioners. Supporters believe that setting maximum dollar amounts for damages from medical malpractice saves doctors, hospitals and insurance companies from having to pay for "frivolous" lawsuits and other baseless claims.

In reality, frivolous lawsuits rarely even make it to court, and if they do, no jury would award a patient clearly only minimally injured millions of dollars for pain and suffering. Setting maximum amounts for these damages hurt those most vulnerable: patients grievously or permanently injured by negligent medical care.

The state Supreme Court explains its decision through a series of examples to illustrate how arbitrary and unfair damage caps really are. They drew one example, where one negligent physician injures three separate patients, who all file claims against him. Patient A was injured moderately and suffers pain and disability of a month; patient B is severely injured and suffers for about one year; and patient C is permanently injured, suffering disability for the remainder of her life.

Say patients A and B were both awarded $100,000 for pain and suffering and plaintiff C is awarded $1 million for lifelong pain and disability. Under damage caps, the award would be automatically reduced to $250,000, without justification, even though the $1 million was reasonable and fair. The court concluded that the maximum cap "offends the fundamental notion of equal justice under the law."

Only Patients in Crisis

We recently wrote about an particular egregious case of medical malpractice in Texas, where damage caps are currently set at $250,000. As stated, caps were initially created to respond to a "medical malpractice crisis," which was based on the claim that doctors' insurance premiums were skyrocketing due to litigation costs.

In response to this, the Court wrote that such a malpractice "crisis" does not and has never existed, as it is not supported by any available data. In fact, jury trials and awards only make up a small fraction of medical malpractice insurance payments.

At present, 19 states have laws establishing caps on malpractice damages. Among those states, only two, or 10.5%, have experienced static or declining physician insurance rates. In contrast, among states without damage caps, physician insurance rates have declined or stayed the same in 18.7% of states.

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Dangerous Doctors, Patient Deaths Reveal Failing Texas Healthcare System

March 11, 2014

299122118_1e0a8cdc8e.jpgDr. Christopher Duntsch arrived in Texas in 2010 to start a neurosurgery practice. By 2013, he had killed two patients from malpractice, paralyzed four others, and had his medical license revoked. Our team of medical malpractice lawyers examines this horrifying story and the problems within the Texas legislature that allowed it to happen.

Throughout the three years he was practicing in Texas, physicians, patients, and malpractice lawyers repeatedly tried to have his license suspended. Their efforts were unsuccessful for so long because of a series of conservative reforms in the Texas court and medical systems. Over the past ten years, these reforms have severely limited the resources and options available to patients injured by negligent physicians.

The medical system in Texas used to be overseen by a connected network between the state medical board, hospital management, and the courts, which prevented and punished cases of medical malpractice. This changed around 2003, when the Republican Texas Legislature set maximum dollar amounts for malpractice lawsuits at $250,000. This is problematic for many reasons that are beyond the scope of this article, but in essence the damage cap does not adequately protect patients who suffer permanent injuries from doctors like Duntsch and deters malpractice lawsuits from being filed.

Other laws were introduced that protected hospitals from being sued for the actions of their doctors. Currently, Texas law states that hospitals may only be held liable for damages if the plaintiff can prove that hospital management knew that the doctor posed an extreme risk to patients and hired them anyway. Compounding this, hospitals in Texas are allowed to keep all their information regarding doctor hiring practices completely private, so neither patients nor plaintiffs can access them.

So, with hospitals deregulated and the court system substantially curtailed, the Texas Medical Board was all that remained to police physicians and protect patients. The board, however, was established to monitor physician licenses and oversee professional standards, not in any way protect the public. The board's intention is to protect physician's rights, and does not revoke medical licenses unless there is overwhelming, inarguable evidence such as a felony conviction or dolling out opioids to addicts.

Dr. Duntsch and His Wake of Destruction

In 2010, Duntsch started a practice, the Texas Neurological Institute and worked at Baylor Regional Medical Center in Plano. Another surgeon at Baylor told the Texas Observer that Duntsch was, by far, the worst surgeon he had seen, even when performing relatively minor procedures.

Reports of serious harm done to patients by Duntsch are long and illustrate consistently dangerous and unconscionable medical care. After the first few botched surgeries Baylor had to bring in senior surgeons to correct the damage done to patients, though most of it was irreparable. Duntsch even operated on a childhood friend, severely damaged his spinal cord, and delayed follow-up tests so long that his friend permanently lost the use of his arms and legs.

Duntsch was suspended for 30 days, after which he was supposed to be supervised during every surgery. This never happened; soon after the first paralysis, a woman named Kellie Martin went to Duntsch to treat back pain. Duntsch recommended a microlaminectomy, a minor surgery which removes part of the spine to relieve pain from nerve pressure.

Duntsch performed the surgery, which was supposed to take 45 minutes, unsupervised. Two hours after she went in the OR, her husband asked to speak with Duntsch, who said there had been some complications and she would have to stay the night. Another few hours later, she was rushed to the intensive care unit. Ultimately, after an excruciating wait, he and his daughters were told Kellie had died.

The medical examiner had to examine her twice because he was so shocked by the state her body was in. It was clear Duntsch severed one of her spinal arteries during surgery (as he had with his childhood friend a month prior), and failed to notice it in time to save her life. She eventually bled to death.

Continue reading "Dangerous Doctors, Patient Deaths Reveal Failing Texas Healthcare System" »

Popular Hysterectomy Surgery Causing Cancer Spread

February 27, 2014

6025359063_81a0b67b4c.jpgDoctors across the country are calling to change standards for a common gynecological procedure, morcellation, which can spread dangerous types of uterine cancer. Many studies have confirmed this risk, forcing the medical community to reevaluate how and when the procedure is done. Medical malpractice lawyers at Pintas & Mullins take a closer look at this procedure and who is most at risk.

Morcellation is a hysterectomy procedure that involves grinding the uterus so tissue can be more easily removed through small incisions. In women with cancerous or pre-cancerous uterine cells, however, the procedure breaks up the cancerous tissue and scatters them into the abdomen or other organs.

What makes the issue particularly dangerous is the inability to test for cancerous uterine cells before the surgery. These cancerous cells can also often appear non-cancerous or non-threatening in initial tests, so the risk is amplified.

Personal Tragedy leads to Public Change

Among the most vocal physicians fighting to curb the use of morcellation is a Harvard-affiliated cardiothoracic surgeon, whose wife suffered the serious consequences of the procedure. He has written dozens of letters to medical journals and media outlets saying that the surgery endangers women, referring to it as a major public health crisis. The surgeon's wife, who is also a physician, underwent a morcellation procedure to treat what her medical team believed were benign (or non-cancerous) masses in her uterus.

The procedure went smoothly, however during follow-up testing showed that the "benign" cells actually contained a rare and extremely aggressive cancer known as uterine leiomysarcoma. The cancerous tissue was spread throughout her abdomen and lungs during the morcellation surgery, inflicting her with stage four cancer.

She is now going through chemotherapy and additional surgeries to remove cancerous tissue, with the support of her husband and six children. She asserts that neither her gynecologist nor her surgeon informed her of the risk of cancer spread before she agreed to a morcellation procedure. At present, the hospital she underwent her procedure, Brigham and Women's Hospital (where her husband also works), has imposed limits on morcellation procedures, including strengthening the informed consent process and adding restrictions for eligibility.

The couple is now criticizing doctors, hospitals, and medical society that they believe underplayed the risks of morcellation. The issue is quickly becoming a hot topic of debate in the field of gynecology, and many other physicians have joined in on the call to curb the procedure. Already, two esteemed medical journals have published critical articles on morcellation.

Very recently, on February 26, 2014, the FDA announced it would begin investigating information and data on morcellation procedures. FDA spokespeople stated that the agency is extremely concerned about the potential of cancer spread in at-risk women.

Since the couple started campaigning against morcellation, many other wives and their spouses, have come forward to say they suffered similar devastating cancer spread from the surgery. They are calling the procedure flawed and are asking researchers to conduct analyses of morcellation studies and the rate of cancer spread.

Risk Factors Include...

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Bariatric Surgery and Children: When Weight Loss Kills

February 17, 2014

childhood-obesity-1_l.jpgThe number of overweight and obese children is rising substantially throughout the United States and the world. This, of course, is a problem in and of itself, however additional concerns are being raised about the prevalence and dangers of pediatric bariatric surgery. Medical malpractice lawyers at Pintas & Mullins take a closer look at this troubling trend and how it could impact our children.

The childhood obesity problem is most prevalent in developed countries, and rates are expected to rise even more over the next decade in affluent Middle Eastern countries. A recent article in the Wall Street Journal profiles one little boy, aged three, who currently weighs in at 61 pounds, more than twice the average for his age. He was just one year old when his parents began noticing health issues associated with his weight, including dangerously slow circulation due to pressure on his airways.

Due to his extraordinary size, his parents recently decided to have him undergo bariatric surgery. The procedure will remove part of his stomach, ideally so he will be unable to eat as much and feel satiated with lesser amounts of food. They hope that this surgery will prevent a lifetime of additional obesity-related health problems, such as diabetes, heart disease, and severe sleep apnea.

Obesity in children is caused by a sedentary lifestyle (excess video games and television time, lack of physical activity) and overindulgence in unhealthy foods lacking in real nutrients. It is now a serious health problem not only in Western countries but other places, such as Saudi Arabia, where over 9% of school-aged youths are obese (about 18% of American school aged children are obese).

Weight-Loss Surgery and Children

U.S. doctors are willing to perform bariatric surgery on teenagers, however such procedures on children under the age of 13 are generally not done. In order to qualify for bariatric surgery, youths must have a BMI of 35 or higher in addition to a serious weight-related health problem. This may include diabetes, sleep apnea, increased pressure inside the skull (pseudotumo cerebri), high cholesterol/blood pressure, or severe liver inflammation.

There is a plethora of other factors doctors should consider before deciding to perform bariatric surgery on a child. Among these include:

• whether or not they have been able to lose weight on their own through diet and exercise

• whether they are finished growing

• understanding that they must be willing to follow lifestyle changes post-surgery

• use of alcohol or drugs within 12 months before surgery

If any of the above-mentioned factors were not considered before surgery, the child may suffer severe, even life-threatening complications from the procedure. Unfortunately, more and more rogue physicians are looking to cash in on this trending market by performing surgeries on children who do not qualify. Parents need to inform themselves on the general safety guidelines for bariatric surgery to avoid a devastating malpractice event.

There is now a global debate over the appropriate age for bariatric surgery. In the U.S., the youngest is typically about 14; abroad, as stated, children as young as three are undergoing the procedure. The World Health Organization points to a total lack of data on the long-term health effects of such surgeries on children, and that surgeons should err conservatively on the age spectrum.

Currently, the issue of highest concern is not the procedure itself but on how the abrupt change in nutritional consumption would affect long-term brain and sexual development. The brain critically needs the proper types and amounts of nutrients to mature properly, which also affects hormones associated with sexual maturation and cognitive functioning. There is currently no data proving weight-loss surgeries do not affect this development.

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Congress to Tighten Leash on VA after Disastrous Medical Errors

February 10, 2014

6989660347_405bf398c4.jpgIn the wake of the our efforts in Iraq and Afghanistan, the Department of Veteran's Affairs (VA) has been innundated with a new generation of injured troops entirely different than in wars past. The changes in veteran demographic, mixed with the pre-existing American healthcare problems and an array of other factors, is causing disarray in the VA. Medical malpractice attorneys at Pintas & Mullins take a closer look into the disorder and how Congress plans to fix it.

You know something has gone terribly wrong when the least-productive Congress in U.S. history is calling foul on another government agency. Bipartisan members of Congress are launching investigations and working on remedial efforts after reports of serious and devastating problems at VA hospitals throughout the country. To have bipartisan members of Congress frustrated with the agency is extremely telling of its fundamental, deep-rooted problems.

The issues are wide-spread and affect all 1,700 VA facilities in the U.S. Among the problems, legislators are blaming lack of accountability, management errors, and restrictions on performance-based pay for the abundance of medical errors, which are devastating veterans. Congressional members are now considering and will more than likely approve penalties for the VA.

The House Veterans Affairs Committee chairman told the Wall Street Journal that he plans to introduce legislation that will make it easier for poorly performing hospital staff to be demoted or fired. Currently, VA executives receive bonuses based almost exclusively on tenure rather than performance or contribution.

Needless Deaths of our Veterans

Much of the Congressional uproar is in response to an influx of media coverage of the dire, often fatal conditions at VA hospitals in Pennsylvania, Georgia, and South Carolina to name just three. CNN recently published a story on several patient deaths at the Dorn VA Medical Center in South Carolina and the Charlie Norwood Medical Facility in Georgia. CNN reporters investigated the facilities after it became clear that dozens of patients were dying of cancer due to delayed or flat-out denied care.

The report noted that thousands of veterans at these two facilities alone were being forced to wait several months even for routine screening tests such as colonoscopies - within some waiting lists going back as far as 2010. To say this is unacceptable is a dire understatement. Making matters worse, those in charge of these facilities were wholly unable to report remedy and disciplinary action for the backlogs.

VA facilities function differently than traditional privatized hospitals and healthcare clinics. As with any other government agency, the environment within the facilities is extremely enclosed and nepotistic. Inadequate employees are rarely fired; the worst that happens is a transfer to another VA facility, where the cycle of negligence merely continues without discipline or consequence. Additionally, many do not realize that the VA in its entirety is paid for by the American public through taxes.

Among its aims, Congress will explicitly examine each VA executive's history of contribution, action and capabilities. The VA system cares for about 8.75 million patients - from WWII vets to teenagers coming back from Afghanistan - with an annual budget of over $145 billion. There are no current discussions surrounding cuts to this massive budget, only of the VA's performance and lack thereof.

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Problems with Medicaid Affecting Patient Care

January 28, 2014

6170068917_88e420de2b.jpgPhysicians throughout the country are seeing an increasing problem with Medicaid programs, particularly in hospice and emergency rooms. With the roll-out of the Affordable Healthcare Act, enrollment in Medicaid is expected to increase, further intensifying the program's problems. Medical malpractice attorneys at Pintas & Mullins highlight a few issues brought to our attention by medical experts in the field.

Medicaid is a federal program that provides healthcare coverage for low-income children, adults, the elderly, and people with disabilities. Over 58 million Americans depend on Medicaid for long-term medical health care. Most enrolled truly need the program at some point in their lives to better their health and overall well-being, however, many medical experts are arguing that long-term dependence on Medicaid is hurting medicine.

Several reports from different state research programs reinforce this opinion. For example, the Oregon Health Insurance Experiment recently studied the effects of expanding public health insurance on medical outcomes, health care usage, overall well-being of low-income adults, and financial strain. Among its findings, the Experiment found that being enrolled in Medicaid increased the likelihood that the patient would be admitted to a hospital by 30%, and be prescribed medications by 15%.

Additionally, Medicaid patients were 7% more likely to be admitted to the ER, which is steadily increasing (more on this study can be found here). The problem, of course, is incredibly complex and does not have a single set of easy solutions. As Dr. Edwin Leap writes for MedPage Today, at the heart of the issue is that Medicaid patients do not have ownership of their own health care costs. They are told they have federal insurance, however, they are not fully informed of how the payment processes operate.

Those with more privatized insurance coverage (meaning not through Medicare or Medicaid) try their best to avoid repeat or constant doctor visits because of high co-pays and schedule impediments. Conversely, Medicaid patients are often unemployed because of their disability, or elderly and retired, and are not asked for co-pays during emergency room visits. This leads to a lot of excessive, unnecessary ER visits; Dr. Leap asserts that even a minimal $5 dollar co-pay could help weed out the superfluous patients.

This is not to say Medicaid patients do not need emergency room care. It is widely known, however, that the complete lack of co-pay drives Medicaid patients into the ER who do not have an emergency medical need, causing the department to be crowded and staff to be overwrought. Ambulances are called for fevers, and common depressive symptoms are referred to as suicidal, with demands to be admitted to a mental health facility.

The problem is not limited to a few bad egg Medicaid patients. Physicians and other providers, too, can egregiously abuse the system. The most recent example is Seth Gillman of suburban Chicago, who was charged with defrauding Medicare and Medicaid in his medical facility, Passages Hospice.

Hospice programs are reserved only for patients who are diagnosed with less than six months to live, providing intensive palliative care for the elderly and terminally ill. Despite this, Gillman was billing the federal government for about six years of care per patient, signaling that hospice care either was clearly not needed, or that he was billing for deceased patients.

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Court Rules Minor Malpractice Cases not Subject to Statute of Limitations

January 23, 2014

8178804876_04313157fa.jpgWashington's Supreme Court recently decided that statutes of limitation are not applicable to medical malpractice cases involving minors. The suit centered on Jaryd Schroeder, who was injured from negligent medical care when he was nine years old. At age 18, Schroeder decided to sue the physician for medical malpractice, which he attempted to have barred due to the statute of limitation. Ultimately, Washington's highest court ruled such a statute violated the Schroeder's constitutional rights, awarding him a trial.

Our team of medical malpractice attorneys highlights this case to discuss how and when statutes of limitations are used to prevent minors from filing lawsuits later in life. The Washington Supreme Court believes, as do we, that this places an unfair burden on injured children.

Schroeder filed suit against Dr. Stephen Weighall and Columbia Basin Imaging just before he turned 19, for events that transpired ten years prior. When he was nine, Schroader suffered from double vision, nausea, leg weakness, headaches, and dizziness, and went to Columbia Basin Imaging for an MRI. The radiologist, Dr. Weighall, examined the tests and told Schroeder and his family that everything looked normal.

About eight years later, Schroeder underwent another MRI because his symptoms did not subside. These later tests showed that his brain was protruding into his spinal cord, which was causing his debilitating ailments. Less than two years later Schroeder filed suit.

The defendants, Weighall and Columbia Basin Imaging, attempted to have the case barred on basis of the statute of limitations. The initial judge approved and dismissed Schroeder's case. He then appealed directly to the state's Supreme Court, claiming the dismissal violated his constitutional right of equal protection for minors.

The Supreme Court voted 7-2 to revive Schroeder's case. In the majority opinion, Justice Sheryl Gordon McCloud wrote that statutes of limitation laws placed undue burden on children whose guardians are unwilling or unable to pursue a claim on behalf of the child. She went on to say that numerous other courts have reached similar conclusions, and particularly harm children in foster care, children of teenage parents, and neglected children.

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Medicare to Release Doctor Payment Data

January 15, 2014

2454143641_dfe4a15364.jpgThe Centers for Medicare and Medicaid Services (CMS) recently announced that it would release data on how and why it pays its physicians starting in spring 2014. This is a bold move for many reasons, and could greatly influence the process and outcome of medical malpractice cases throughout the country. Our team of malpractice lawyers discusses how and why this decision is such a big deal.

Starting this spring, CMS will release data regarding Medicare physician services on a case-by-case basis, to be publically available. This decision overturns a decades-long federal policy which prohibited the public release of such information. That policy, enacted in 1979, privatized how much physicians made under Medicare, noting that the public interest in such matters did not warrant its release.

How the federal court came to this decision in 1979 was based on two previous court decisions that found privacy interests for physicians to outweigh the need for transparency. Today, as healthcare costs in this country reach absurd heights, the need for transparency trumps doctor privacy interests. The need for transparency in American healthcare is a complex and extremely important issue, though beyond the scope of this post. More on health care transparency can be found on this Department of Health & Human Services site, or this Forbes article.

Consumer Advocates Speak Up

In 2006, advocacy group Consumers Checkbook requested physician payment data for those treating Medicare patients and was swiftly denied. The group filed a federal lawsuit, initially winning their case, though that decision was overturned on appeal. Four years later, The Wall Street Journal published an in-depth article series on the fraud and waste in the health care system. WSJ's parent company subsequently filed a motion requesting the 1979 policy be overturned.

Ultimately, WSJ won its legal battle, and in 2013 CMS agreed to release the data, which many assert was long-overdue. However, the data will not be release en-masse, and requests will be reviewed by CMS on a case-by-case basis, so we will have to wait to see how it will comply with public demand. In short, CMS holds all the cards right now, and it will get to decide which, when, and how much information is disclosed.

Currently, anyone can look up medication prescribing habits by physicians for Medicare patients. This is available on the ProPublica website, and was made public in efforts to protect the American elderly and disabled from unsafe prescriptions, such as antipsychotics and other dangerous, addictive, and disorienting drugs.

How this Will Impact Malpractice Suits

The database (which is technically known as the Carrier Standard Analytic File) includes information for about 5% of Medicare beneficiaries, and all care services their physicians' bill to CMS. Although the information focuses on a small cohort of patients, the data itself is extremely powerful.

Say a patient (regardless of Medicare status) is seriously injured while under the care of a physician listed on the Medicare database. If that patient chooses to bring a malpractice lawsuit against that physician or affiliated hospital, plaintiff lawyers could request all information related to that physician from the CMS database. This could provide invaluable information on prescribing habits, physician quality, and countless other factors that influence patient care, which could in turn impact the outcome of that case.

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What Fuels Medical Mistakes

January 8, 2014

4727573126_7418a98c6f.jpgAs a law firm specializing in medical malpractice and mistakes, we see firsthand the traumatic and often catastrophic results of malpractice, and its effects on victims' families. Our passion for this field translates into great interest into how and why these mistakes are made in the first place, and what malpractice attorneys and plaintiffs as a community can do to prevent them.

Though much ink has been spilled on this topic, we recently came across an article in the esteemed British Medical Journal (BMJ), in which the author asserts that evidenced-based medicine is damaged. Evidence-based medicine is heralded in the U.S. as the solution to medical malpractice reform. In theory, it sounds ideal: in order to minimize medical errors, physicians should apply therapeutic principals rooted in scientific and medical research when diagnosing and treating patients.

The reality, of course, is much more complex, varied, and as many argue, broken. The BMJ author declares that drug manufacturers have figured out how to manipulate this evidence-based system to their advantage, conducting research trials as opportunities to tout unnecessary drugs. Once these trials produce "evidence," that certain drugs help certain patients at certain times, physicians are forced to comply, often to the rapid demise of their patients' health.

Overdiagnosis, Overtreatment

Truth be told, the drug industry funds (and therefore controls) the majority of medical research, which leads to massive overdiagnosing and overmedicating. This, many doctors believe, is what is truly fueling medical mistakes in American health centers. Our societal dependence on prescription drugs is immense and steadily increasing. According to the Center for Disease Control and Prevention (CDC), nine out of ten adults in the U.S. report using at least one prescription drug in the past month.

That clinical research is corrupted by the drug industry doesn't make national headlines like egregious medical malpractice lawsuits do, but it is the driving force behind such cases. In order to remedy this, we have to first understand and accept that it is happening, and direct energy toward changing what is broken.

Medical researchers need to focus on what desperately needs to be studied - natural history of diseases, diagnostic criteria, long-term efficacy and safety of drugs. Conversely, we also need to urge researchers, philanthropic organizations, and government officials to tighten regulation of competing interests, predetermined agendas, and Big Pharma influence.

Complex Patient, Understaffed Hospitals

Another major problem affecting every subset of our healthcare system is overworked, underpaid nurses and medical assistants. An article recently published on ProPublica, written by a Harvard Medical School graduate and internal medicine resident, illuminates how difficult it is to keep patients with complex conditions safe in hospitals. The author's mother died of breast cancer after six months in a nationally-ranked hospital, during which time she witnessed a slew of medical mistakes and incidents that hastened her mother's death.

She asserts that, most often, injuries from medical mistakes are not the result of negligence, but of critical information falling through the cracks. Things like medication errors, nutritional regimens, and falls are often caused by seemingly minor incidences, like handoffs between nursing shifts, nearly identical labeling and drug names, and lack of fail-safe systems.

In a word, the author believes complexity is the problem plaguing our health system. As medical advances save and improve lives, it is also creating an influx of new medical devices, pharmaceuticals, and treatments; there are just too many layers to manage, and overbooking physicians is only exacerbating the problem.

How to Help

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Uterine Growth Removal Procedure under Scrutiny for Cancer Risk

December 30, 2013

8759177830_2ecb0f9160.jpgThree U.S. teaching hospitals are now examining the safety of a popular surgery to remove uterine growths after reports that the procedure could spread cancer in high rates. Two esteemed hospitals in Boston, along with the Cleveland Clinic, plan to better inform patients of this risk. Medical negligence attorneys at Pintas & Mullins remind women undergoing these types of procedures that they must always be adequately informed of all risks before they consent to a surgery.

The procedure, known as uterine fibroid surgery, is recommended for patients diagnosed with noncancerous growths in the uterus. It is estimated that about three out of four women will experience these types of growths (fibroids) in their lifetime, some without ever realizing it. By themselves, uterine fibroids do not cause cancer and are easily manageable. In a specific subset of patients, however, the symptoms (pain, bleeding) interfere with health to such an extent that surgery is necessary.

Uterine growth procedures are minimally invasive, typically performed laparoscopicly. The number of these types of surgeries has skyrocketed over the past decade, often with positive results. For some women, however, the procedures have turned disastrous and even fatal, because it significantly increases the risk of cancer spreading into the abdomen.

In some women, undetectable cancer cells proliferate in these uterine growths and can spread into the abdomen during or after laparoscopic surgery. This is due to the nature of the surgery, which requires surgeons to "grind" the growths down into small pieces so they are more easily removed. Thus, the cancer cells release into the abdomen and uterus, making the potential for full-blown cancer more likely.

Making matters worse, physicians are currently unable to test the fibroids to determine if the growths are cancerous before the procedure and the American Congress of Obstetricians and Gynecologists explicitly notes that there are not guidelines for how physicians should inform patients of this risk.

Why Women aren't Being Warned

In a study involving 30,000 patients, researchers determined that about one in every 415 women who undergo this procedure have undetected cancerous fibroids. Prior to these findings, which will be published in the New England Journal of Medicine, physicians believed the risk to be much lower - about one in 10,000 - and were therefore understating the actual risks to patients.

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One of Six American Deaths Caused by Preventable Hospital Error

December 16, 2013

4726929163_1dc2a8fd75.jpgHealth experts estimate that an alarming number of patients in the U.S. - about 440,000 per year, to be exact - die from medical errors in the hospital. That amounts to about one-sixth of all deaths nationally, and the third leading cause of death overall. Our team of medical malpractice attorneys examines how this could be so in a country so touted for medical advancement.

According to a recent article by the New York Times, the number of patients seriously injured (but not killed) by medical negligence is 10 to 20 times higher than 440,000. The author of that article suggests that the most surefire way to heighten hospital safety is to make information and records more transparent. She affirms that hospitals began tracking safety errors in 2000, and in 2003 the Centers for Medicare and Medicaid Services started collecting hospital safety information.

The website Hospital Compare lists much of this information, and most states run similar websites. Other websites and advocate groups that rank or publish hospital safety information include the U.S. News Best Hospitals, Consumer Reports, and Leapfrog Group.

Among the information that can be mined from these sites include rates of surgical site infection, drug-resistant bacteria infection (such as C.diff), and bedsore and blood clot rates. There is also, however, a significant dearth of information, which is worrisome to say the least, and confirms that hospitals are not comprehensively reporting their data on preventable errors and medical mistake.

The American healthcare system is hotly contested in all its factions, as it affects the lives of everyone in this country: young and old, sick and healthy, rich and poor. The politics in this issue are omnipresent and intrinsic in understanding how and why the reporting system is so colluded. Enter: the National Quality Forum, a federal organization established in 1999 that is influenced by hospital lobbyists just as Congress is. Consumer representatives of National Forum committees told the Times that they are rolled over by lobbyists and hospital administrators "constantly" in deciding core reporting requirements and other issues.

For example, Hospital Compare no longer provides information on surgical instruments left in patients after procedures, or frequencies of air embolism. About 27 states now require public report of hospital-acquired infection rates, however, this is the only government-mandated safety information required, leaving much buried beneath the surface.

Proving Fault in Hospital Error Lawsuits

When medical negligence directly causes serious patient injury or death, a lawsuit is the most efficient and effective way to ensure the hospital corrects the inadequacies that led to the error. Lawsuits may only be filed, however, if it can be proven that the physicians or hospital staff failed to meet the standard level of care in your treatment.

To prove negligence it must be demonstrated that the physician/hospital's conduct fell substantially below the general medical standard of care. This medical standard can be established through testimony by a medical expert practicing in the same field (for example, if the lawsuit is being brought against an OB/GYN, the testimony of another obstetrician or gynecologist from a different hospital would be acceptable).

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