By Rick Garcia
Tort reform is taking its toll on emergency room patients in Texas. As detailed in a recent New York Times story, a little known consequence of the Texas Tort reform massacre of 2003, is near blanket immunity for emergency room physicians who commit serious medical errors.
The law now requires that injured patients have to prove that an emergency room doctor’s negligence was “willful and wanton”. Willful is defined as “said or done on purpose” or “deliberate.” Wanton is defined as “gratuitously cruel” or “merciless.” Do we think doctors make mistakes on purpose or out of an excessive need to cause pain and suffering? Of course not. In our experience, serious medical errors are caused by poor training, poor work habits, or gross miscommunication. But Texas law doesn’t make that distinction, leaving injured patients with no legal protection.
This means lawyers many times won’t take these cases, since they are so difficult to prove. The result is emergency room patients have almost no legal recource if they are seriously hurt by a doctor’s conduct.
The Times details the case of Jennifer McCreedy, a San Antonio single mom and full-time mortgage broker who is now maimed for life after an emergency room visit in July, 2006.
That’s when she stumbled on her front porch and broke her ankle in three places, severely dislocating the bones. She spent four hours at the San Antonio Methodist Hospital ER and never saw the doctor overseeing her case and never heard from an orthopedic surgeon. She never had her bones set back in place, which surgeons later said was vital to reducing swelling. A physician’s assistant eventually put her in a splint and told her to follow up with an orthopedic surgeon and sent her home.
By the time she got in to see an orthopedic surgeon the next day, the ankle was too swollen for surgery. After 13 days of trying to reduce the swelling, her surgeon decided he had to operate. The one-hour surgery took four hours and he had to slice her Achilles tendon to lengthen contracted muscles. Because of the swelling, Ms. McCreedy’s wounds refused to heal, eventually requiring a graft. She underwent a total of five surgeries. At 52, she’s now permanently disabled, unable to work and in constant pain.
She sued her doctor, who admitted in court that he should have seen the patient himself, should have called the on-call orthopedic surgeon and should have looked at her medical chart more carefully. But the jury found him not guilty. Why? Because lawyers couldn’t prove that the doctor’s conduct was “willful and wanton.”
At least Mrs. McCreedy got her day in court. The story also describes the case of Connie Spears who ended up with both legs amputated after an emergency room doctor at Santa Christus Rosa Hospital in San Antonio failed to follow up on her complaint of severe leg pain.
Mrs. McCreedy couldn’t find an attorney willing to take the case because of the “wanton and willful” standard, according to the newspaper story.
These two tragic cases illustrate what happens to patients when their legal rights are weakened. If you haven’t made this point to your local lawmaker, just think about what might happen the next time you or a loved one has to go to an emergency room.
By Rick Garcia
Ten years after the nation was stunned to learn that 198,000 patients die on average every year in American hospitals from preventable medical errors, hospitals are as unsafe as they ever were, according to the first major follow-up study on the issue.
The Harvard study, published in November’s New England Journal of Medicine, looked at patients in 10 North Carolina hospitals from 2002 to 2007. Researchers found that 18.6 percent of all patients were harmed by their medical care, some more than once, and 63.1 percent of the injuries were preventable. The majority of the errors were related to complications from procedures, medication mistakes and hospital acquired infections.
Although many of the injuries were minor and treatable, 2.4 percent of them caused or contributed to a patient’s death, according to the study.
Ironically, these hospitals were selected because they were known to be working hard at making safety improvements, according to study authors. The same poor safety record is likely to be found at most U.S. hospitals, noted lead author Dr. Christopher P. Landrigan, in a story in the New York Times. “It is unlikely that other regions of the country have fared better,” he said.
This study comes on the heels of another government report that showed 15,000 Medicare patients die every month in hospitals in the U.S. from largely preventable medical errors. These deaths were linked to medical mistakes, substandard care and lack of patient monitoring and assessment. The report also estimated that the additional hospital care required because of these errors costs Medicare more than $300 million per month.
The health care industry should be ashamed. It spends millions of dollars each year lobbying for reductions in the rights of Americans to sue for medical errors. Yet it obviously isn’t spending enough time or attention on preventing these errors in the first place. Americans should be outraged.
Texans, especially, should be outraged since their rights to sue for medical injury were gutted in 2003 in an effort led by hospitals, insurance companies and Gov. Rick Perry. This so called “tort reform” promised lower health care costs for consumers. But health costs – along with medical errors — are still rampantly out of control. A decade after the world was stunned to learn the terrible safety record of American hospitals, the only thing that’s changed is that consumers have fewer legal options should they become the victims of medical error.
By Rick Garcia
Nellie Mae Ned worked for Parkland Memorial Hospital in Dallas for 28 years, mainly scrubbing floors and toilets. At age 51, healthy and privately insured, she entered the hospital in 2008 for knee surgery. What happened next is one of those stories that’s too horrible to believe and yet occurs too often to ignore.
As detailed by the Dallas Morning News, Ned is now a destitute amputee after 24 surgeries in 16 months and $1 million in unpaid bills to Medicaid.
All because of medical errors:
1) Ned was operated on initially by an unsupervised second year surgical resident.
2) The doctor who was credited with supervising the resident was actually vacationing in Africa
3) Ned was not seen by a doctor on the medical staff until three days after surgery – and three days after other staff had documented her foot was swollen, purple, cold and the patient was delirious.
4) The above was only the beginning of how she was hurt and neglected by Parkland.
The newspaper was able to piece together Ned’s story only by analyzing various documents obtained through legal means (Parkland is a publicly-funded teaching hospital) . They showed attempts by hospital staff to cover up, create confusion, and otherwise keep the facts from Ned and the public. To date, they have taken no financial responsibility.
Turns out, according to the Dallas Morning News, the hospital seriously harms about 60 patients a month. Parkland’s patient safety officer, Dr. Angelique Ramirez, presented a report to Parklands’ board of directors in February that analyzed patients whose stays from October 2008 to December 2009 resulted in “prolongation of hospital stay, need for ICU care, permanent harm, or death.” During one 90-day period, 74 percent of these occurrences were “potentially preventable,” stemming from failures of technical competence, infection prevention or care planning, the report said.
While overall patient care at Parkland is questioned by even other teaching hospitals, the medical error rate at all hospitals continues to be unacceptable. According to the latest Healthgrades report on this issue, released in 2008, nearly 240,000 patients died from preventable medical error in the U.S. from 2004 through 2006.
Just this month, the U.S. Department of Health and Human Services reported that more than 13 percent of Medicare patients in U.S. hospitals each month experience an adverse event, and some 15,000 of them die as a result. The report went on to say that “adverse events” are often the result of medical errors, like surgical mistakes or infections, and that 44 percent of adverse incidents occurring in hospitals are avoidable. The report also estimated that these adverse events are costing Medicare more than $300 million each month.
It’s so clear that hospitals and doctors need to take responsibility for preventable medical errors if they are ever going to get serious about dealing with them. They need to step up, stop shifting the blame, and start cleaning up their practices. Just ask Nellie Mae Ned.
By Rick Garcia
Any nightmare about a hospital surgery involves doctors removing the wrong body part or getting patients mixed up and operating on the wrong one. Turns out, this particular nightmare is more reality than bad dream.
A study published in the October issue of Archives of Surgery reported that this type of “never event” (as in, it’s never supposed to happen), occurs in one half of one percent – or one out of 200 – of all surgeries.
(insert istock photo http://www.istockphoto.com/stock-photo-10988733-doctors-and-nurses-on-operation. )
In the study, researchers examined a Colorado database of 27,370 physician self-reported adverse occurrences between January 1, 2002 and June 1, 2008. They found 25 instances where surgery was performed on the wrong patient and 107 instances where surgery was performed on the wrong part of the body. Of these, 20% resulted in significant harm to patients and 1 resulted in death.
In 100% of the wrong-patient surgeries, errors in communication were cited as factor, followed by 56% that involved misdiagnosis. In wrong-site surgeries, 85% involved errors in judgment and 72% occurred when the operating team failed to follow the standard pre-surgery practice of taking a “time out” to re-review the procedure before cutting.
Looking at these figures tells me that right off the bat that if doctors and nurses simply slowed down and talked to each other more often, or more clearly, they could reduce these “never events” substantially. Rather than spending hundreds of millions of dollars each year to fund efforts to gut patient’s rights to sue for medical errors (such as cutting off the wrong leg), health care providers should be investing in better training and oversight of their personnel.
By Rick Garcia
Medical fraud resulted in a Texas jury slapping a $2 million verdict against a hospital in a case that highlights how far some hospitals will go in trying to cover up medical mistakes.
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By Ric Garcia
When I visit friends or relatives in the hospital, most of them are wearing oxygen tubes, tubes for IV medicine, catheters, feeding and the like. All the tubes look the same to me. They apparently look the same to a lot of nurses as well – with catastrophic results.
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A 49-year-old businessman and father died during a routine heart procedure. A defective medical device went out of control and slashed his heart tissue. We discovered that, if a 25¢ brake was added during manufacturing, the problem would have been prevented. Loose rules allowed Boston Scientific to avoid FDA review of the equipment. Along with doctors, Garcia & Karam petitioned the U.S. Food and Drug Administration (FDA) to tighten rules on how they approve medical equipment.
Sanchez vs. Vioxx
Garcia & Karam filed the first Vioxx case in Texas. In this case, a woman using the drug to treat arthritis pain for only 6 months experienced severe pain which required emergency care and open heart surgery. The manufacturer Merck had said only people taking the drug for over 18 months were at risk. Vioxx was taken off the market for safety reasons. This case allowed our firm to inform the public of this risk not only in the United States, but also in Mexico, where the drug is still sold.
Trevino vs. Edinburg Regional Medical Center
Mrs. Trevino went to the Medical Center with severe kidney pain, blood in her urine and other significant medical symptoms. But the Medical Center discharged her with only mild pain medication. Within a few days, she developed a severe infection which led to the amputation of her legs and arms. Garcia & Karam achieved a settlement that took care of her family and her future needs.
Baby walkers are one of the most dangerous items in a household and should be banned in the U.S. as they are in Canada. Every year falls down stairs in baby walkers cause serious head injuries in babies under two. Not only that, but babies in walkers can move quickly, bump into sharp edges, grab electrical cords and tip over.