Two Mass. General doctors to pay $4.5M for patient’s death

Two doctors from Massachusetts General Hospital, Dr. Alasdair Conn and Dr. George Velmahos, will pay the estate of 62-year-old Plymouth resident Geraldine Moran $4.5 million due to allegations that they failed to take action that might have prevented the woman’s death.

According to the lawsuit, Moran fell from the top of a 6-foot-tall ladder in her home while cleaning on March 23, 2005, breaking several ribs. She was first taken to the Beth Israel Deaconess Hospital-Plymouth, formerly called Jordan Hospital, where her pelvis and chest areas were examined and it was discovered that she had several broken ribs, one in a very dangerous location near her aorta.

Doctors at Beth Israel suggested that she be taken to Massachusetts General Hospital, as they would be in a better position to treat her injuries. The lawsuit alleged that Conn and Velmahos, the doctors who examined her at Mass. General, failed to order chest imaging exams on Moran, or address the broken rib next to her aorta. The broken rib punctured her aorta overnight, resulting in cardiac arrest and her death.

Insurance industry financially booming yet rates steadily decline, according to 2013 report

The Medical Liability Monitor recently released its 2013 annual survey and one of its main findings showed that even as insurance rates and written premiums have continued to go down since 2006, the medical professional liability insurance industry as a whole has been booming financially over the years.

Chad Karls, author of this year’s Executive Summary, said the industry’s premium revenue has continued to surpass claims expenses, with annual combined ratios for medical insurers coming in below 100% annually since 2006. Insurance rates suffered a great decline this year with a 28.8% of all manual rates slumping in 2013 after a 3.1% increase last year.

The Northeast region of the United States was the only one to see an increase in medical insurance rates, albeit lower than last year’s 1.19% at only 0.7%, with New York leading the rise (4.8%). New York was followed by New Hampshire with a 4.2% increase.

It is important that physicians and medical staff do their job to the best of their abilities, follow all regulations, and ensure that medical procedures are done properly, as one error move can mean the difference between life and death for patients. If you have been the victim of medical malpractice in Massachusetts, our attorneys at Crowe & Mulvey, LLP can help. Call us at (617) 426-4488 to discuss your situation with us and find out more about your options.

Most Massachusetts medical malpractice claims caused by misdiagnoses

A study published in the JAMA Internal Medicine showed that a huge number of medical malpractice claims filed in Massachusetts are caused by misdiagnosis. Researchers examined resolved claims data from two insurance carriers in Massachusetts from 2005 to 2009.

Out of 7,224 medical malpractice claims during the five-year timeframe, 551 were from primary care practices constituting of failures in diagnosis (397 cases, 72.1%); medication (68 cases, 12.3%); other medical treatment (41 cases, 7.4%): communication (15 cases, 2.4%); patients’ rights (11 cases, 2%); and patient safety and security (eight cases, 1.5%).

The study also showed that primary care malpractice cases generate more settlements or results for the plaintiff than non-general medical malpractice claims.

If you or a loved one have been harmed by a medical professional’s negligence, you may consider taking legal action. Our attorneys at Crowe & Mulvey, LLP in Massachusetts are prepared to handle your case professionally and with care. Please call (617) 426-4488 to discuss your case today.

Monday Mornings

monday mornings cover
For anyone who wants a peek behind the curtain of Morbidity and Mortality conferences–those secret peer review meetings where medical errors are discussed–there’s a book-turned TV series that offers an interesting glimpse.  Monday Mornings is a TNT series based on a book of the same name by medical journalist Sanjay Gupta.  As with most things worth watching, the series was cancelled after one season, but it remains readily available thanks to Amazon Instant Video!

As I’ve ranted before, the medical profession has an established tradition of meeting to discuss bad outcomes in patient care, and has prevailed upon legislatures in every state to pass laws allowing them to keep those discussions secret, even from the patients whose care is being discussed.  Monday Mornings offers a fictionalized description of what goes on behind those closed doors.

While the characters’ personalities–the pompous chief of staff, the emergency department doctor who shoots from the hip, the scruffily handsome neurosurgeon who is having an affair with his beautiful colleague– are rather stereotypical and obviously created to bolster the dramatic storyline, there is still plenty of focus on how hospitals react to medical mistakes.  For the most part, discussions in the Monday morning meetings are brutally honest in their criticism of surgeons who’ve made errors, both in technique and in reasoning.  Of course, when the chief of staff decides to terminate the privileges of a doctor who made an inexcusable error, it is clear that he will allow the physician to go practice at another facility–another dose of reality in a world where bad doctors move freely from hospital to hospital and state to state.

Most people outside the medical profession will never get a chance to see the inner workings of the peer review process up close and personal.  Gupta’s inside knowledge brings readers and viewers a unique look at how the medical profession handles errors.  The result is flattering and frightening in equal parts, as the providers genuinely seem to strive for improvement, yet at the same time are willing to conceal mistakes from public view.  Despite the dramatic embellishments, the book is worth a read for lawyers and patients who are interested in how the peer review system really works. The TV series faithfully tracks the book, and the cast makes a compelling drama.

Common Sense and Elephants

insuranceThe Rhode Island Supreme Court recently approved the actions of a trial court judge who took the unusual step of speaking to jurors about insurance–an issue that is ordinarily mysteriously absent from the evidence in most personal injury trials.

The trial judge in Oden v. Schwartz instructed the jury that they were not to consider such issues as medical or other insurance or attorney’s fees.  She further told them that they were not to consider what might happen to the physician’s malpractice premiums as a result of a verdict against him (which is probably nothing).  Predictably, as whenever there is any mention of insurance at trial, the defendant doctor’s lawyer objected vociferously, and when there was an adverse verdict, appealed.

In striking a blow for common sense, the Rhode Island Supreme Court held that it was entirely proper for the trial judge to address issues that are often in the minds of jurors, and to tell them–accurately–that these are not proper considerations in their deliberations.  The Court noted that the trial judge “simply addressed the reality that jurors often wonder about liability coverage, especially in instances where there is typically an insured risk, such as medical malpractice.”

The Rhode Island court is entirely correct.  We all know from our own experience on juries and from hearing comments by jurors after trial that they are well aware that doctors carry malpractice coverage.  They also assume that their verdict might impact the doctor’s premiums–even though this is not usually the case.  They usually suspect that large medical bills are or will be paid by health insurance, and expect that the plaintiff will have to pay his attorney a contingent fee.  Yet none of these factors is a proper consideration in the jury’s deliberations.

These issues are the elephant in the corner of the courtroom.  They are a natural part of a juror’s thought process–yet the rules of evidence forbid any mention of these issues.   The approach chosen by the trial court and approved by the appellate court is sensible, because it confronts the elephant head on, and attempts to explain the absence of any mention of logically related issues by telling the jurors that they are not proper considerations.

If anything, it would make sense for trial judges to go even further: to explain to jurors that their verdict depends on whether a defendant is legally responsible, and not whether he is insured, or that most health care insurers can recover what they’ve paid from the plaintiff if the plaintiff gets a verdict that includes medical expenses, so the plaintiff will not receive a windfall.  The best way to prevent jurors from improperly taking these factors into account, or from making incorrect assumptions, is to be frank, to name the elephant in the corner and explain why it must be ignored.

Read the Rhode Island court’s opinion in Oden v. Schwartz here.

Lawyers No Better than Doctors

conspiracy of silenceFor years, I have roundly criticized “peer review” statutes, which permit doctors to conduct private discussions about medical errors, and to refuse to tell even the patient about the discussion.  The principle behind these statutes, which make these discussions privileged in all 50 states, is that doctors won’t tell the truth if they know anyone might find out about it.  The premise is that health care will be improved by allowing doctors to discuss their mistakes freely among themselves.

Now, the Supreme Judicial Court has decided that lawyers are no better than doctors in terms of honesty and openness.  In a recent decision, RFF Family Partnership LP v. Burns & Levinson LLP, the Court held that a members of a law firm could have secret conversations among themselves to discuss a threatened malpractice claim by an active client of the firm.  The result strikes me as completely inconsistent with the fiduciary duty that we as lawyers have to put our clients’ interests above our own.

In RFF Family Partnership, the client sent the firm a letter complaining that the firm had failed to identify and pay off an existing mortgage, and threatening a lawsuit for legal malpractice.  The attorneys representing the client met with the firm’s “ethics counsel” to discuss the firm’s liability and the best course of action.  The firm represented the client at the time of the discussion and continued the representation for sometime thereafter.

Rejecting the client’s argument that the firm was placing its own interests above its fiduciary duty to the client, the SJC held that the communications with the in-house ethics expert were protected.  The Court reasoned that this would benefit clients by encouraging lawyers to get dispassionate advice about whether to withdraw from representing a current client who threatens a lawsuit, so that the lawyers would not withdraw “prematurely or without careful advice.”

The court placed four conditions on a law firm’s ability to hide behind the attorney-client privilege: 1) the firm must designate one of its lawyers to represent the firm as in-house counsel; 2) the designated lawyer must not have performed any work on the case that is the subject of the potential malpractice claim; 3) the firm cannot bill the client for the time spent discussing the potential claim with in-house counsel (really?); and 4) the communications must be made in confidence and kept confidential.

But as someone who has railed against peer review secrecy in the medical profession, I am disturbed by the idea that the legal profession should be seeking a similar foxhole.  So long as we represent a client, our first obligation is to that client.  If we’ve made a mistake, we should be accountable.  To allow lawyers to hide conversations from their clients poses a very real likelihood that the lawyer’s own interests will take precedence over the client’s.  At a minimum, it creates an unsavory appearance that the lawyer is looking out for himself, at the client’s expense.  These results are wholly inconsistent with the high ethical standards that the legal profession has always aspired to attain.

Read the SJC’s decision here.

Surgical Errors on the Rise?

mast-surgical-errorRecently released statistics from the Massachusetts Division of Health Care Quality  (DHCQ) show a projected increase in certain types of surgical errors in 2012 as compared to 2011.  According to the data, which comes directly from mandatory hospital reports, the number of surgeries performed on the wrong body part and the incidence of foreign objects left in patients both increased by 60% in the first half of 2012, as compared to the previous year.  Hospitals reported smaller increases in performance of the wrong surgery or procedures performed on the wrong patient.

The DHCQ calculated the statistics by doubling the the number of each type of incident reported by hospitals from January through June 2012 to estimate the number of adverse events for the full calendar year.  The data for the last half of the year is not yet available, and may not be directly comparable due to changes in some definitions that took effect in October 2012.

The statistics are based on Massachusetts hospitals’ self-reports of “serious reportable events (SREs),” a term intended to capture certain presumably preventable adverse events.  Under DHCQ regulations, hospitals must report events falling within the enumerated categories–and must notify patients that such an event has occurred.

A major weakness in the system is that it is dependent on the honesty of hospitals and the health care providers who may be involved in errors.  A surgeon who quickly finds a sponge left in a patient might not report it to the administration–or the administration might interpret the regulations so as not to require a report.  For example, recent statistics show that neither Children’s Hospital in Boston nor South Shore Hospital in Weymouth–two fairly busy hospitals– reported ANY surgical errors during the 18 months from January 2011 through June 2012.  Maybe, but I’m suspicious.

A more serious problem flows from the definitions used by the DHCQ, which exclude many otherwise serious reportable events.  For example, hospitals are required to report any death of a low-risk patient occurring within 24 hours of surgery.   Yet if the patient  is irreversibly brain damaged during surgery, yet remains on life support until the day after the surgery, no report is required.

Other gaps occur when patients are treated at multiple hospitals, none of which accepts responsibility for the report.  For example, in one case we handled, a mother suffered a hemorrhage during delivery and was transferred to a tertiary care hospital, where she later died (a reportable event).  The delivering hospital took the position that it was not required to report the death because the mother didn’t die at its facility–while the receiving hospital didn’t feel it had to report since the injury that caused the death occurred elsewhere.  In another case, a psychiatric patient being transferred from one hospital to another eloped  (another reportable event) during transport and committed suicide.  Neither hospital reported the elopement.

While the SRE program is well-intended, the tremendous individual variation in hospital reporting and the narrow definitions used by the DHCQ make the resulting statistics of limited use to consumers.  Unless more stringent reporting requirements are instituted, it is difficult to compare one hospital to another, or even to determine whether the quality of care is improving.  So far, there is little evidence to show that it is.

Read the DHCQ presentation of its statistics here.

When Simple Malpractice isn’t Simple

broken glassA woman falls on broken glass, cuts herself, and goes to the local emergency room, where the doctor on duty sends her home without finding a piece of the glass lodged in her buttocks.  Several days later, another doctor orders a CT scan–not done by the first doctor–that shows the glass.  On its face, many people would think this is clear malpractice–the first doctor should have found and removed the shard of glass.

A recent decision by the Massachusetts Appeals Court reminds patients and lawyers alike that even seemingly simple malpractice cases aren’t all that simple.  In Delaney v. Russo, the court dismissed the case because the patient didn’t have a medical expert witness to testify that the emergency room’s doctor’s failure to find the piece of glass was malpractice.  The patient had claimed that the malpractice was so obvious that a jury could recognize it without testimony from an expert.  The court disagreed, and that was the end of the plaintiff’s case.

The general rule in medical malpractice cases is that expert testimony is required to prove both the standard of care–what the average health care provider would have done under the circumstances–and causation–how the alleged negligence of the defendant caused injury.  The only exception is if the negligence is so obvious that it falls within the “common knowledge” of the jurors.  In fact, this seemingly straightforward case would require expert testimony on several points: 1) that the standard of care required the emergency room doctor to do a particular test to search for broken glass; 2) that the test, if performed, would have located the glass, and 3) that the patient was harmed by the doctor’s failure to find the glass.

Many people with potential malpractice claims that seem obvious are dismayed to learn that the legal requirements for expert testimony make it difficult or impossible to bring their claims.  Particularly if the injury is minor or temporary, the expense of hiring an expert witness can be prohibitive, and the patient is left with no practical remedy.

The result in Delaney v. Russo demonstrates the danger in attempting to proceed with a malpractice case without an expert witness.  Experienced malpractice lawyers can help determine whether a claim is valid, and whether expert testimony will be required to bring the case.

The Appeals Court opinion is available on the court’s website.

Playing Tribunal Roulette

roulette wheelA pair of recent decisions from the Massachusetts Appeals Court this week underscore one of the biggest problems faced by a plaintiff’s lawyer in preparing an offer of proof as required by G.L. c.231 s.60B.  The plaintiffs in Hasouris v. McGlowan and Burns v. Rustum both presented offers of proof containing reasonably detailed opinion letters from qualified medical experts.  Yet in each case, the Appeals Court affirmed the tribunal’s finding that the plaintiff’s evidence was not sufficient to meet the admittedly low threshold set by the tribunal statute.

Although it is difficult to be sure from the relatively brief decisions issued under Rule 1:28, the opinion letters in both cases seem to be adequate: they name the health care providers the reviewing physician finds responsible, identifies the deviations from the standard of care, stating specifically what the omissions were, and connect the negligence to the injury alleged.  Yet in each case, the Appeals Court found the letters to be too “conclusory” or “speculative” to pass muster.

The tribunal is meant to screen out claims that are frivolous, and to do so by applying a directed verdict standard.  Translated somewhat, that should mean that, if an expert witness sat on  the witness stand at trial and testified to the exact contents of his letter, the trial judge would permit a jury to decide the case.  Yet sporadically, tribunals seem to go beyond this standard, which requires all evidence to be construed in the light most favorable to the plaintiff, and criticize the lack of detail or specificity which would normally be left for challenge on cross-examination.  Indeed, Section 705 of the Massachusetts Guide to Evidence would seem specifically to permit an expert witness to testify to his conclusions without stating the “underlying facts or data.”  If it’s good enough for trial, it ought to be good enough for a tribunal.

But despite nearly forty years of experience with the tribunal system, the standards for assessing the adequacy of an offer of proof remain murky and malleable.  The appellate courts have on many occasions rejected expert opinion as “conclusory” or “speculative,” but those pejoratives are in the eye of the beholder; for each opinion so rejected, there are many more that are deemed sufficient despite the same or less detail.  The courts’ inconsistent treatment of opinion letters creates a major dilemma for plaintiffs’ lawyers, who have no firm guidance about what is sufficient, and thus find themselves at the mercy of the tribunal judge and/or the appellate court.  The lack of clear guidance for what a court will consider adequate is aggravated by the lack of information available to the plaintiff at the tribunal stage.  Often the lack of detail in an opinion letter flows not from lack of merit, but from lack of discovery to flesh out facts that aren’t apparent from the medical record.

The result is a system where tribunal outcomes can be unpredictable–and completely unrelated to the merits of the claim.  Given the enormous expense and effort that go into the preparation and trial of a malpractice case, no plaintiff’s lawyer wants to take a case that has no merit, and most of us screen cases very carefully.  The tribunal presentation should be judged by a fair, impartial and clear standard, consistently applied.  Yet, as these recent cases show, too often, the courts demand an unpredictable–and sometimes unavailable–level of detail that is not necessary to achieve the purpose of the statute.

The Appeals Court’s unpublished decisions are available through the court’s website here.

Case Law Update: SJC Limits Doctors’ Liability to Non-Patients

car crashThe Massachusetts Supreme Judicial Court ruled today that a doctor who told his patient that it was safe to drive was not liable to another motorist injured when the patient suffered a grand mal seizure and lost control of his car.  The Court’s decision in Medina v. Hochberg restricted the application of the Court’s earlier opinion imposing liability on physicians.

The patient, Robert Riskind, was being treated by a Massachusetts General Hospital neurologist, Fred Hochberg, for an inoperable brain tumor.  The tumor caused Riskind to suffer seizures on several occasions, including a previous grand mal seizure which, under Massachusetts law barred him from driving for six months.  Riskind followed Hochberg’s instructions, and did not drive during this period.

Hochberg continued to treat Riskind, and several months later, told him that he could pursue his normal activities, including driving.  Riskind, again following Hochberg’s instructions, was driving on December 10, 2001, when he suffered another grand mal seizure, and lost control of his car, injuring Richard Medina, who was on his way home from work.  Medina brought suit against Riskind and Hochberg, claiming that Hochberg was negligent in permitting Riskind to drive given his numerous medical problems.

The Court chose to narrow the application of an earlier decision, Coombes v. Florio, in which it had held that a doctor could be liable to a non-patient who was injured as a consequence of a doctor’s failure to warn a patient of side effects of a prescribed medication.  Although this decision caused much hand-wringing among malpractice insurers, who are always active in trying to limit patients’ rights, it has resulted in very few lawsuits, and does not require doctors to do anything they shouldn’t already be doing.

Distinguishing Coombes, the Court in Medina held that a doctor has no liability to non-patients who are injured as a result of complications or effects of the patient’s underlying medical condition, as opposed to consequences of an affirmative act by the doctor, such as a prescribed treatment or medication.  A doctor is only liable if his treatment of the patient “creates or increases” the risk of harm to the general public.

In reaching its decision, the Court also relied heavily on numerous “public policy” grounds urged upon it by doctors and their insurance companies.  The Court gave short shrift to the concern that the public may be endangered by patients whose medical conditions put others at risk, instead focusing on the supposed cost to doctors of increased litigation and the privacy rights of the ailing patients whose conduct causes harm.

The result is that there is an entire class of injuries that doctors have the ability, but not the obligation, to prevent. Without question, the doctor would be liable to the patient if the patient himself were injured by the doctor’s failure to give him important safety information.  Yet when the injured party is not the patient, the doctor escapes liability for not doing what good medical practice would require him to do anyhow.  Proper information and warnings given to the patient protect not only the patient, but the public as well.

And in focusing on the potential liability of the doctor, the court fails to recognize that in some cases, it will be the doctor, rather than the patient, who is in the best position to prevent harm to others.  A patient may be completely unaware of the potential danger he creates by driving or otherwise engaging in activities that could harm himself or others–as in the case of Mr. Riskind, who was simply following his doctor’s advice when he crashed into Mr. Medina.

The Supreme Judicial Court’s decisions are available on its public website.