Articles Posted in Medical Malpractice & Medical Negligence

Medical negligence and medical malpractice usually involve mistakes in judgment on the part of a physician, nurse, or other health care provider. But an interesting source of medical negligence is on the rise in many American hospitals: It’s called “alarm fatigue”, and it most commonly affects nurses rather than doctors.

Think back to the last time you were on a patient ward in a hospital. Chances are, a great many of the patients were hooked up to some type of electronic patient monitoring system – whether for the purpose of monitoring heart rate, breathing, blood pressure or other vital signs. These machines are highly sensitive, and are designed to sound an alarm to the nursing station in the event of the slightest change in a patient’s medical status. That sounds good – until you consider the practical reality that if a patient so much as leans too much on a tube, or unintentionally pulls a wire out of its input, an alarm will sound. Sometimes, if a patient sneezes and breathing is momentarily interrupted, an alarm will sound. Now combine this with the reality that on any given hospital patient ward, there are perhaps 50 or more patients at any given time. The result? Patient monitor alarms going off left and right. The practical reality is that a cacophony of alarm noises can result at nursing stations, and eventually, the alarms no longer produce the result they were designed to: An immediate human response to investigate any medical emergency. The Boston Globe reported on this new development recently (click on link for story.)

All of this poses an interesting legal question: Should nurses and hospitals be held legally liable for medical malpractice if medical harm or death results from a patient not being responded to appropriately, due to ‘alarm fatigue’? As a Dedham, Massachusetts personal injury lawyer, my professional opinion is thus: It depends. Nurses are human beings. They are responsible for the care of several different patients at any one time. If a hospital floor or patient ward is regularly experiencing a cacophony of alarms, many of which are non-emergent or not life threatening, this can produce a desensitizing effect among the nursing staff. To my knowledge as a Boston, Massachusetts medical malpractice lawyer, there are no accurate statistics yet available as to what percentage of patient monitor alarms are in fact false alarms, but if the actual number were high, it would be understandable, from a human behavior perspective, why some nurses would not respond as quickly as if the false alarms were very low. The unfortunate result is that, eventually, a patient in genuine medical distress is not going to be responded to appropriately – and a medical negligence suit is likely to follow. One Massachusetts medical negligence lawsuit based on ‘alarm fatigue’ has already been brought.

In my previous post on this subject, I noted how President Barack Obama had raised the subject of “medical malpractice reform” in his State of The Union speech last week, and of how a Massachusetts medical malpractice case that just settled this week, illustrates how severe and unjust typical “tort reform” measures would have been in this case.

Just how bad was the medical malpractice alleged in this case? Consider these facts:

• Rebecca was prescribed Seroquel – a powerful antipsychotic commonly used in very serious, and primarily obvious, cases of psychosis.

President Barack Obama, in his State of The Union speech Monday evening, made another reference to the supposed need for tort reform; to ‘control the rise in health care costs.’ I bristle at these kinds of mentions, for two reasons: 1) They demonstrate how successful liability insurers have been in their propaganda campaign to convince everyone from the person on the street to the President of the country, that increases in the cost of health care and in the cost of liability insurance, are due to “frivolous lawsuits.” 2) The average person who has not been the victim of medical negligence or has not known someone who has been a victim, has absolutely no idea of the impact that these draconian ideas of limiting a plaintiff’s financial recovery in court, will wreak on such victims’ lives.

And they need to know just how bad “tort reform” really is. Tort reform isn’t a single concept or one single law. Rather, it’s an amalgam of ideas and laws that are designed to drastically alter the way our civil justice system works. Many of these “tort reform” proposals would place “caps” on jury awards for pain and suffering, as well as death that results from a doctor’s or a hospital’s medical negligence. Arbitrary caps like this are a liability insurer’s dream – and an insult to anyone else who has suffered due to medical negligence. I’ve blogged previously about this subject, but it can’t be said enough: Arbitrary and formulaic caps on damages, and restrictions on certain types of lawsuits, represent a horrible assault on this nation’s civil justice system. Furthermore, since lawsuits are not a major factor in determining liability and medical malpractice premiums, these inequitable and unjust ideas will not reduce liability insurance premiums, or health care costs.

If anyone needs proof of just how unjust “tort reform” is in the real world, I offer the following. A Massachusetts medical malpractice case that was filed in Suffolk County a few years ago, and that settled this week, illustrates just how horrific some of these cases can be, and of how proposals to enact “caps” on jury awards and damages, are scathingly unjust. Consider the following facts in this case:

Here’s an interesting case – far from decided or even litigated yet – but interesting nonetheless. It’s a hybrid of both medical malpractice and wrongful death (actually, wrongful death arising from alleged medical negligence.)

The parents of two young children, whose mentally ill aunt literally carried them to their deaths on a Lowell highway in 2008 have sued McLean Hospital in Belmont, alleging that the hospital was negligent in treating the woman, Marcelle Thibault, 39, whose actions killed the children and herself.

Ken and Danielle Lambert, of Brentwood, New Hampshire, argue in the complaint filed in Suffolk Superior Court that the renowned Massachusetts psychiatric hospital provided negligent care to Danielle Lambert’s identical twin sister, Marcelle Thibault, and is therefore legally responsible for the wrongful deaths of their 5-year-old daughter, Kaleigh, and 4-year-old son, Shane. Thibault, the children’s aunt, was also was killed on Jan. 11, 2008, when she intentionally carried the children into high-speed traffic on Interstate 495 in Lowell. Following the deaths of their children and Thibault, the Lamberts told the Boston Globe that psychiatrists had diagnosed Thibault with bipolar disorder in September 2007 and discharged her six days later after prescribing psychotropic drugs and outpatient therapy.

2009 ended with a big bang when it comes to Massachusetts injury law, specifically, Massachusetts medical malpractice. A lot of legal specialists such as me are paying close attention to a jury verdict that was handed down last month in a Suffolk County medical malpractice case: A $15 million award to the parents of a boy who died after being treated at Children’s Hospital in Boston.

The case, brought by the parents of a 3 year-old boy who died in December 2004 after undergoing surgery for a birth defect at Children’s Hospital, has caught the attention of both plaintiffs lawyers as well as insurance defense attorneys. The boy’s parents, Brian and Andrea Fox of Philadelphia, said they brought the suit because they believed that doctors at Children’s Hospital had lied to them about the treatment their son received at the hospital. After four days of deliberations in Suffolk Superior Court, the jury found that two doctors at the hospital caused the boy’s death: Dr. James Lock, and Dr. James A. DiNardo, an anesthesiologist. Dr. Lock had until last year been the physician in chief at Children’s Hospital.

Massachusetts juries have awarded medical malpractice awards of this size before (awards this high don’t happen often, but they have happened.) What’s unusual about this jury award is not only its amount, but the fact that most jury awards, and non-jury settlements, of this amount, are given when the victim is still alive, and will require several or many years of specialized medical and custodial care. Awards and settlements of that size are designed to pay for the future expenses of such care, which over time can easily cost millions. So when a jury awards damages that are this high, in a case where the victim is deceased, it’s very noteworthy. Also important: The boy’s parents will not receive the full $15 million, but an un- unspecified, lesser sum. This is because the attorneys for the plaintiffs and the defendants entered into an agreement before the case went to the jury, informally called a “High-Low Agreement.” This agreement is designed to guarantee the plaintiffs a minimum amount of damages, regardless of the jury’s verdict, in exchange for a cap on a possibly higher damages figure that the jury may award. Lawyers for both parties would not reveal what this figure is, and that too is standard procedure: These agreements are under seal. The jury did not know this, however, and what’s outstanding here is, not knowing this, how much they awarded the plaintiffs.

In my final post in this case, let’s ask who are the real targets of this suit – the nurse practitioner, the supervising doctor, or Harvard University? For those of you who said “Harvard University” (thinking correctly that it’s the world’s most famous university with billions of dollars in assets and endowments,) you’d be wrong. You see, shockingly enough, Harvard University, as an educational institution, is considered legally to be similar to a “charitable organization”, and as such in Massachusetts, enjoys limited immunity against liability suits. The operative statute is referred to among lawyers as the “charitable immunity cap.” Created by the legislature many, many years ago, its purpose was to shield charities such as hospitals and educational institutions from high liability judgments, such as might result from a medical negligence suit, so that they could be safeguarded in their “charitable” missions, from potential financial ‘ruin.’ Currently, the “charitable immunity cap” is $20,000.00; meaning that is the maximum they can be held civilly liable to pay in any liability judgment against them.

Both financially and legally, the real targets here are both the doctor and the nurse practitioner. Why? Because each of them is required to carry policies of professional liability insurance. These professional (malpractice) liability policies typically provide coverage of at least a million dollars each, and it is these policies that would provide indemnification (liability coverage) for each of these defendants. This type of insurance would pay for the verdicts or judgments issued against each defendant, subject to each policy’s limits. Harvard University is being named as defendant here, in its legal capacity as the employer of each of these to defendants. This is known as the legal doctrine of “respondeat superior.” Notwithstanding that Harvard would be named as a defendant in the suit, the university’s legal liability is still limited to the charitable immunity cap that it enjoys. So in the practical sense, this lawsuit, like all Massachusetts medical negligence or Massachusetts wrongful death cases, is a suit against the individual medical professionals who are alleged to have committed the specific negligence alleged.

Will this family win this suit? Obviously, I haven’t reviewed any of the relevant pleadings, or been party to any discovery yet conducted. It’s too early to say. But, as a Boston medical malpractice lawyer with over 15 years experience in this field, the facts as reported don’t look too promising for these defendants. Regardless of what happens, I wish the family of this young man the best in the days ahead. The loss of a child, never mind to suicide, is a devastating event for any family.
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In my previous post, I reported on a wrongful death and medical malpractice lawsuit filed by the family of a Harvard University student who committed suicide while under the care of the school’s Health Services Department. Now I’ll explain the legal basis for why this suit is being filed, and why the family is accusing the defendants here with negligence.

The fact that patients taking Accutane, Prozac or Wellbutrin should be monitored for development of any suicidal thoughts is not news to anyone – certainly not to anyone in the medical community. Furthermore, according to the suit, young Edwards told the nurse who prescribed these drugs that he had taken Prozac when he was younger, but that it made him experience feelings of being “out of control.” Despite this, the nurse prescribed allegedly him the combination of Adderall, Wellbutrin and Prozac – knowing that he was also taking Accutane, known to create a higher risk of suicide in many patients. What this family (the plaintiffs) must legally prove here (as must all plaintiffs in medical malpractice suits or medically-related wrongful deaths suits,) is that the actions of both this nurse practitioner and her supervising doctor fell below the “standard of care” required of medical professionals of the same qualifications, intelligence, and experience, operating under similar circumstances.

The term “standard of care” refers to professionally-recognized, widely-accepted routine custom and practice in any given profession. There is no one standard of care applicable to all professions, but different ones that apply to and are particular to, different professions. For example, in this case, professional organizations such as the American Medical Association and the American Psychiatric Association will have published certain minimum steps and “best practices” that should be followed when evaluating and treating a young adult presenting with certain mental health complaints. Expert witnesses and academic authorities can also tesify to certain minimum standards of care that these defendants were required to adhere to in caring for a patient such as young Mr. Edwards. Whether or not their care deviated from or fell below these standards, has yet to be determined.

In my previous post, I wrote about how Massachusetts medical malpractice occurs far more commonly than most people think. I also wrote about how some people view the subject of medical malpractice as largely an exaggeration cooked up by plaintiffs’ personal injury lawyers. That viewpoint is extremely false. To illustrate a very probative and illustrative example, in my last post I introduced the first-hand account of a doctor who herself witnessed a shocking example of medical malpractice. The doctor’s name is Amy Tuteur, an obstetrician-gynecologist, who was educated at Harvard College and received her medical degree from Boston University School of Medicine. She is a former clinical instructor at Harvard Medical School. Earlier this year, in April of 2009, Dr. Tuteur posted a story on www.salon.com, entitled “They committed malpractice on my dad … and got away with it.” Not only was the malpractice shocking, it was tragic: It was her own father who died, at the hands of her own medical colleagues within the very hospital she worked in. What follows are excerpts from the rest of her story.

“(Following the discovery of the medical negligence that condemned her father to incurable cancer,) I had two questions: How had this happened? And why did (my father’s doctors) lie about it? Speaking with all the people involved, I was able to piece together what had happened. As part of the routine preparations for the bladder surgery, my father went to the hospital for pre-operative testing the day before. The hospital staff drew blood, did an EKG and took a chest x-ray. That night, he received a call: There had been a problem with the chest x-ray. Could he stop and have another one done the next morning before he presented for his surgery?

My father assumed that the problem had been technical; perhaps the X-ray was too light or too dark. He reported the next morning, as requested, for his repeat chest x-ray and headed off for surgery. The surgery went well. The bladder stones were easily removed and he recovered quickly and completely. What my father did not know is that he had been asked to have a repeat chest X-ray because the original X-ray had shown a small abnormal area on his left lung. The radiologist could not be certain about the identity of the abnormality, but strongly suspected that it was cancer. The repeat film confirmed that it was, indeed, cancer. Why had (my father’s doctors) failed to tell him of his cancer diagnosis? Because every doctor (involved in the case) had thought that the job of telling the patient this news, belonged to someone else. The radiologist thought that the urologist would tell my father, since the urologist had ordered the x-ray. The urologist thought that the radiologist would alert my father if there were anything abnormal on the x-ray. The anesthesiologist was aware that the chest x-ray showed a small cancer, but assumed that either the urologist or the radiologist had told my father. The radiologist actually sent the urologist the x-ray report, which mentioned the cancer, but the as the urologist admitted at trial years later, he had never looked at it.

Why did the doctors lie about it? To this day, I can’t figure it out. When I confronted the primary care doctor he claimed that they did it to “protect” my father. They didn’t want to “lower his morale.” Obviously, this was an excuse, because no one wanted to admit what had (really) happened, and because they wanted to protect each other. (Editor’s note: Doctors do this frequently. Don’t be surprised.) The part I can’t figure out is how they thought they would (successfully) keep it a secret: I worked at the same hospital. I had complete access to all the records, including the X-ray, yet somehow they imagined I would never look. Despite multiple types of aggressive chemotherapy, my father died, gasping for air, 8 weeks to the day after the second chest X-ray. What’s (so) difficult to believe is that his doctors had known for months that he had cancer, but they had “forgotten” to (even) tell him.”

Even though this is a true story, and the words no less of a doctor, supporters of medical malpractice and tort reform (translation: medical malpractice insurance companies that would like to restrict or outright eliminate a victim’s right to sue for medical negligence,) will likely brush off stories like this as an anomaly. Trust me, I’ve heard every excuse in the book: “It doesn’t happen statistically that often.” “Plaintiffs’ tort lawyers are suing doctors left and right, and we need to restrict the ability of people to file law suits.” “Medical malpractice jury awards and settlements are driving up the cost of doctors’ liability insurance.” Because of plaintiffs’ lawsuits and jury awards, doctors are abandoning the practice of medicine, leaving patients high and dry.” The high cost of health care is due to plaintiffs’ lawyers and medical malpractice lawsuits.”

Don’t believe a word of this. The objective, black-and-white truth is that medical malpractice lawsuits represent a very small portion of total tort suits filed in the United States, and in Massachusetts, the rate is even slower. Furthermore, the vast majority of Massachusetts medical malpractice lawsuits end in favor of the doctor, not the patient.

So don’t believe the false stories and excuses you may hear about how medical negligence is “rare” and “exaggerated”. As a Massachusetts medical malpractice attorney and a Massachusetts personal injury lawyer with more than twenty years’ experience in this field, I can assure you that medical negligence is anything but a rare occurrence. To learn more, visit the American Association for Justice’s website.
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Most people who hear stories of medical malpractice or medical negligence think those stories usually come from plaintiff’s personal injury lawyers, intent on “dramatizing” a rare and infrequent anomaly. Trust me, that isn’t so, at all. Medical negligence occurs with shocking frequency. What makes this truth hard to believe, is our historic, and cultural, faith in doctors as “saints in surgical garb”, people of almost above-human capabilities, who are above fault and above reproach. While most doctors are ethical professionals and certainly mean to do well, they are far from flawless, and some are far from above lying about their faults to protect themselves or their colleagues from the legal consequences of their mistakes. As a Massachusetts medical malpractice lawyer, I have seen more than my share of stunning examples of medical negligence.

For those who continue to doubt that medical negligence exists among the most esteemed of hospitals and medical environments, consider the story that follows – from a respected physician herself. It is the story of Dr. Amy Tuteur, a woman who placed her father in the care of colleagues at a major hospital, only to see him die needlessly due to multiple medical errors at the hands of otherwise “flawless” doctors – doctors she trusted. Dr. Amy Tuteur is an obstetrician-gynecologist, who received her undergraduate degree from Harvard College and her medical degree from Boston University School of Medicine. She is a former clinical instructor at Harvard Medical School. Earlier this year, in April of 2009, Dr. Tuteur posted a story on www.salon.com, entitled “They committed malpractice on my dad … and got away with it.“

Excerpts of her story follow here:

“I often write about egregious behavior I have seen during my medical career. Because of patient confidentiality, I generally cannot provide the details that will confirm those stories. This story is one of the most shocking, and certainly the most disillusioning for me, and it is my story to tell. Or rather, it is my father’s story, but he’s been dead for almost two decades, and I have to tell it for him.

On November 1, my father went to his doctor complaining of coughing up blood. He had never smoked, and could not imagine why this was happening. A chest X-ray done that morning revealed a fist sized tumor in the middle of his chest. I got the message as I was finishing up in the operating room and raced to meet him at the office of the chest surgeon where he had been sent. I didn’t have to go very far. All my father’s doctors were at the hospital where I worked; they were all my colleagues. I simply took the elevator. During the appointment, I listened as the chest surgeon explained the various grim possibilities: lung cancer, lymphoma, etc. They scheduled a biopsy procedure for two days later and the surgeon asked if my father had any questions. He had only one: How could he have a fist sized tumor in his chest if only a few months before, he had been in this same hospital to have bladder stones removed, and his pre-op chest X-ray had been normal? The surgeon was sympathetic; sometimes tumors could grow so fast that it they could be too small to detect even a few months previously.

The next few days have a rather nightmarish quality in my memories. The biopsy revealed adenocarcinoma with an unknown primary. The cancer was so aggressive that it had lost all the features of the organ where it originated; it might have been lung cancer, but it easily could have been a metastasis from prostate cancer, or indeed any other cancer. I went down to the pathology lab to review the slides with the pathologist. I remember looking at the bizarre and wildly growing cells and thinking that they would kill my father. Anything that aggressive was certainly incurable. At some point during those days, I thought to look at the original chest X-ray, the one that had been done routinely three months earlier, before his bladder surgery. I wanted to see if, knowing what we knew now, the cancer could be detected in its earliest stages. It was easy to find out. I just went down to the Radiology department and requested the film. As I was an attending physician at the hospital and had worked there for years, they handed over the film without question.

It is difficult to capture the sense of shock and horror that I experienced on looking at the X-ray. The cancer had been diagnosed on the pre-op film. Ironically, the diagnosis had been very skilled. The cancer was small and indistinct on the original x-ray, but the radiologist had found it anyway and prominently noted it in the written report. I immediately called my father’s primary care doctor to ask if he was aware of this. He admitted that he had known since November 1, as had the chest surgeon. The surgeon had simply lied when he had he led my father (and me) to believe that the original chest X-ray was clear.”

Next: Part 2 of Dr. Tuteur’s Story Continue reading

Thanks to a very effective and coordinated campaign by the medical liability insurance industry, a lot of people think that true cases of medical negligence, or medical malpractice, are rare. This is reflected in the relatively low rate of plaintiff’s verdicts in medical malpractice cases brought in Massachusetts courts. (“Plaintiff’s verdicts” are verdicts that find in favor of the plaintiff and against the hospital or doctor that committed the medical negligence alleged. In my more than twenty years’ of experience as a Massachusetts medical malpractice attorney and Massachusetts personal injury attorney, that is not true at all. Medical negligence occurs all the time – with alarming frequency. In my career as a Massachusetts medical malpractice lawyer, I have seen repeated cases of shocking medical negligence.

These cases have ranged from flagrant failures by doctors and nurses to diagnose an obvious disease process, to removing the wrong organ, to overall poor medical procedure. I have seen patients who presented to their doctor with obvious symptoms of a heart attack, told that they are suffering from indigestion, and later died from that heart attack. I’ve seen patients whose symptoms of cancer were misdiagnosed as benign, later die of that disease after too much time had passed, the cancer had spread and the patient lost the chance to treat that cancer, and died as a result.

Most people like to think that doctors – especially their doctors – are immune from fault – almost flawless. Of course, that’s not true. No professional is immune from fault or error. The truth is, nearly 100,000 patients die each year from medical errors. And that figure reflects only officially reported cases – many times that amount are never even reported at all, due to patients and their families either not possessing enough information to proceed ahead with a legal action, or by just being intimidated by the overall, complex healthcare industry. When medical negligence occurs, devastating results can follow – often ending in the death of a loved one. The lives of the victims of medical negligence, and their families, can be forever altered or destroyed.