Articles Posted in Medical Malpractice

Every day I get calls and emails describing awful medical care, which conclude with “will you take my medical malpractice case”? And 90% of the time I politely say “no”. Why?

Justice may be blind, but it’s expensive. That’s particularly true in “med mal” cases. In some cases we have to spend six figures to get the case to a jury. That’s because we have to hire smart experts – doctors – to explain to the jury that the defendant-doctor screwed up, and to prove that the harm he or she caused are no trifling matter. Those smart experts are very expensive.

In many cases the injury is worth less in compensation than the expense of those experts, and the other expenses in the case. If we took on medical malpractice cases with only modest injuries, we would quickly drive our law firm into bankruptcy.

For at least a decade, hospitals and doctors’ offices, hoping improve medical care, have been equipping their offices, operating rooms and staff with nifty computers, ipads, smartphones and other electronic devices. This is great for quickly digging up patient data and drug information. But it also has a dark side.

Doctors and nurses and technicians, just like the rest of us, can get addicted to the “fun” side of these new technologies – social media, texting, tweeting, etc. So addicted, in fact, that they text, tweet, talk and web-surf during important medical procedures.

Apparently, America’s gadget addiction has even penetrated the operating room. For example, more than half of technicians who monitor bypass machines admit they had texted during surgery. Other examples abound. A nurse in an Oregon hospital was caught checking airfares on a computer in the operating room.

If you were my client, and you read the following headline in our local Central New York Newspaper, the Syracuse Post Standard, what would you do?:

“Central New York Injury Lawyer Worst in Nation“.

Or what about this one:

Hospital care in this country is sick. Sadly, old-fashioned medical “care” is giving way to the “big business” model. Nothing new about that. Profits are being exalted over patient care. Again, nothing new. But the news about Health Management Associates, a for-profit hospital chain based in Naples, Fla., is simply over the top.

The New York Times reports that, in order to entice their ER docs to drum up more profits, the hospital chain carefully tracked each physician’s ratio of admitting, versus not admitting, ER visitors for overnight stays. Worse, each physician had a visible-to-others color-coded “score card”: green (good grade), yellow (watch out!) or red (failing grade). “Green” docs were given bonuses while the reds’ jobs were on the line.

The goal? To inflate the company’s payments from Medicare and Medicaid by admitting patients who really don’t need to be admitted to a hospital, like — and this really happened — an infant whose temperature was a normal 98.7 degrees for a “fever”.

I recently read an interesting online article entitled “Patient Harm: When An Attorney Won’t Take Your Case”. The article describes the sad truth that most legitimate medical malpractice victims will never find a lawyer to represent them because their injuries are too “insignificant” to be “litigation worthy”.

You see, medical malpractice cases are extremely expensive to bring because (1) the doctors and their insurance companies will generally fight you all the way to trial and won’t settle; (2) to prove your case, you need to hire at least one, and usually more, expensive expert physicians who will testify that the defendant doctor committed medical malpractice and who will describe the injuries he caused you.

Because medical malpractice cases are so expensive (the costs, not including attorney’s fees, are generally at least $50,000 and usually closer to $100,000), the amount of compensation a jury is likely to give you for the injury has to be worth at least $250,000 to make it worth the lawyer’s time, and worth the risk he is taking of going to trial and losing.

Last week a very fine Syracuse New York medical malpractice lawyer, and a friend of ours, took a medical malpractice trial to verdict. His proof had gone in well. The malpractice seemed obvious, the harm horrendous. The jury seemed receptive. After his brilliant summation, the defendant’s malpractice insurance offered $800,000 to settle.

The plaintiff refused to take it. It wasn’t enough. The judge thought the jury was on plaintiff’s side. He told the insurance defense lawyer he should try to get more money to settle. The judge clearly felt the jury was going to come back with an even bigger verdict. The insurance carrier wouldn’t budge. So the jury did what a jury does, and came back with a verdict.

They found plaintiff had not met her burden of proving the doctor committed malpractice. That meant a zero-dollar verdict for plaintiff. The plaintiff had given up $800,000, confident that the jury would compensate her with twice that amount, and instead got the rug pulled out from under her.

I recently read a New York Times article titled “losing My Leg to a Medical Error“. The author, Frederick Southwick, a physician and professor in a Florida medical school, describes how, seventeen years ago, he had a routine surgery on his left Achilles’ tendon. To prevent bleeding during the procedure, a pressurized cuff was placed above his left knee. Apparently, the cuff was left on too long, and, unbeknownst to him, damaged his arteries. He didn’t find this out until just last summer when he experienced a sudden and total blockage of blood flow to his lower leg leading to amputation. Turns out the arteries, damaged by that cuff 17 years earlier, had slowly scarred, hardened and calcified, leading to the belated sudden blockage of blood flow.

Rare event? Probably. But medical malpractice is not.

Ironically, Dr. Southwick has, for the past two decades, been studying how to prevent errors in health care. In his case, he knows how the error could have been prevented; they could have used either (1) an alarm to remind the surgeon how long the cuff had been in place or (2) a cuff that automatically deflates after the prescribed time.

Yet another article about medical malpractice appeared in my favorite newspaper yesterday. The New York Times reports, in an article titled, “When Surgeons Leave Objects Behind” that surgeons in the U.S. leave an estimated 4,000 “surgical items” inside their patients every year, the vast majority of which are surgical sponges used to soak up blood during the surgery. Clamps, scalpels, and even scissors are sometimes left inside, but two-thirds of the “forgotten” items are surgical sponges. Too often one or more of them end up on the wrong side of the stitches once the patient is sewn up. These can cause all kinds of complications and infections later on.

Leaving sponges inside the patient seems pretty lame. How can they make such a major screw up so often?

First, the sponges are pretty small (see the photo above), and lots of them go into a patient during surgery. In abdominal operations, for example, doctors often stuff dozens of them inside a patient to absorb blood. And many surgical teams (usually nurses) keep only a manual count of the sponges that go into a patient, and then recount the ones taken out to make sure the numbers match. But in a busy, long operation, people sometimes forget how many went in, or else miscount.

I get calls and emails almost every week from medical malpractice victims, yes, truly malpracticed patients, yet I turn most of them down. Why? It kills me to explain this to them, but the truth is that often the harm they suffered is not worth the cost of bringing a medical malpractice lawsuit in New York.

Yes, medical malpractice lawsuits, at least in New York, are extremely expensive because getting a doctor to testify against another doctor (and you need that to win) is so costly.

Even though we turn away four out of five medical malpractice cases, because the harm is not large enough, the malpractice suits we do bring help make medicine safer by providing error-prone doctors and others with a wake-up call, a “sting”, when their sloppy practice causes major harm. But I often worry about the many, many mistakes that, through good fortune, cause only minor harm, and thus provide no “sting”. Doctors, nurses, hospitals and other medical providers can easily “blow off” these errors. There should be some “sting” in the smaller injury cases, too.