Why are hospital errors still so common?

It is normally considered atrocious to let something as self-serving as profit margins determine matters in anything that could influence the welfare of the public. However, according The Modern Voice, money seems to sum up the reality of what America has decided will influence the practice of medicine.

According to critics, President Obama’s Patient Protection and Affordable Care Act, or Obamacare, is to blame for medicine’s problems. Since its approval in 2010, 20 million more Americans now have access to healthcare, making it difficult for doctors and hospitals to handle the sudden influx of patients. Such increases in patient rates are said to cause medical errors such as misdiagnoses, incorrect dispensing of medications, and even unnecessary amputations.

Our personal injury attorneys at Crowe & Mulvey, LLP have the legal experience and technical know-how needed to provide our clients in Massachusetts with legal assistance in cases such a wrongful death, hospital negligence, and surgical errors, among others. Call our offices today at (617) 426-4488 to learn more about our services.

UMass student dies in Belchertown car accident

Twenty-year-old Freehold, New Jersey resident and University of Massachusetts Amherst student Matthew Schiek was struck and killed by a pickup truck in the early morning hours of February 14, CBS 3 Springfield reported.

Schiek and three other students were standing in the vicinity of Old Amherst Road and Two Ponds Road next to Schiek’s broken down vehicle, according to Belchertown Police Detective John Raymer. Schiek attempted to cross the road in the direction of the residency where he had called a taxi when a pickup truck traveling east along Route 9 in Belchertown hit him at around 1:45 a.m. None of the other students were reported as injured.

Raymer said the driver of the pickup truck remained at the scene of the accident and cooperated with the investigation of the police authorities. It was also reported that drugs, alcohol or any other erratic behaviors are not believed to have contributed to the pedestrian accident.

Pharmacy owners arrested for deadly outbreak in Boston

Fourteen people have been arrested and charged in relation to the distribution of tainted drugs by New England Compounding Center Inc., which resulted in the death of dozens, The Boston Globe reported on December 17.

The defendants, who were facing a 131-count indictment which included racketeering, racketeering conspiracy, introducing adulterated drugs into national commerce, criminal contempt, and mail fraud, were scheduled to make their initial appearances in the U.S. District Court in Boston, federal officials said.

Acting Associate Attorney General Stuart Delery said that of the 14 people indicted, 11 were arrested by the police and three turned themselves over to the authorities.

Under the indictment filed in federal court, NECC and Medical Sales Management, Inc., which provided NECC with sales and administrative services, were considered a criminal “enterprise” based on the Racketeer Influenced and Corruption Organizations or RICO law.

Medical corporations and companies can easily afford skilled lawyers and other legal resources to represent and defend them in medical malpractice cases. You should have the same ammunition. Call our attorneys at Crowe & Mulvey, LLP, in Massachusetts at (617) 426-4488 today for legal assistance.

Woman dies in second recent case of medical error at Tufts

Brothers Michael and Stephen Carcerano filed a lawsuit during the third week of August against Boston, Massachusetts-based Tufts Medical Center in the Suffolk Superior Court for the death of their mother.

Caroline Carcerano came to Tufts in November 2013 for a procedure to relieve pain from a back injury. Doctors injected the wrong dye into her spine, and she woke up from the procedure suffering from pain and seizures.

She died a day after her hospital visit. Her back injuries were an offshoot of a fall in her Watertown apartment during the summer of 2013, causing her to break several vertebrae.

The neurosurgeon who applied the injection, Dr. Steven Hwang, immediately admitted his wrongdoing, saying, “We gave her the wrong dye.”

Tufts Medical Center offered to settle and implemented new safety regulations in light of this and another recent, unrelated medical error at their facility.

All of us at Crowe & Mulvey, LLP would like to extend our thoughts and condolences to the relatives and loved ones of the Carcerano family during this tragic time.

Honoring the Value of Human Life

burning cigaretteMost of the newspaper headings describing the Supreme Judicial Court’s recent decision in Evans v. Lorillard Tobacco Co., a much-watched cigarette liability case, focused on the negative: that the Court vacated part of the judgment.   “Court Throws Out $81 Million in Damages Against Lorillard in Smoking Death Suit,” brags one business website.  “SJC Overturns Part of Award in Tobacco Case,” writes The Boston Globe.

Yet the much bigger news for personal injury victims and their families is that the SJC affirmed an award of compensatory damages totaling $35 million. As affirmed by the SJC, the award consisted of $25 million to Marie Evans’ estate for her conscious pain and suffering, and $10 million to her adult son, Willie, under the wrongful death statute.  Both amounts had been the subject of a remittitur by the trial judge from the jury’s award of $50 million to Mrs. Evans and $21 million to her son.

Even as reduced, the award is the largest compensatory award in a wrongful death case in Massachusetts, and validates the opinion of many plaintiffs’ lawyers that juries value suffering and death much more highly than insurance companies think.  And the fact that the SJC approved the judge’s decision shows that the Court, too, places a high value on human life.  So while the facts in Evans were extraordinary and even inflammatory–a cigarette company’s plan to entice African-American children to develop a smoking habit by giving them attractively packaged free samples–the Court is clearly willing to respect large awards as appropriate compensation for wrongful death and pain and suffering.  Nothing in the Court’s opinion or the applicable law suggests that such large recoveries are limited to extraordinary situations.

The rest of the SJC’s opinion is likewise encouraging to plaintiffs.  The Court rejected Lorillard’s various arguments that it should not be responsible for the addictive properties of its cigarettes and the consequent health effects.  The Court also gave short shrift to the defendant’s argument that Evans should have known that smoking caused lung cancer as far back as the 1960s, noting that the company’s CEO had, under oath in a congressional hearing, denied any connection as recently as 1994.

Even the Court’s reversal of the punitive damages award, which led most of the news stories, is hardly fatal to the plaintiffs: the court held that the issue of punitive damages must be retried because of confusion about whether impermissible legal theories may have contributed to the jury’s award.  Certainly the plaintiff would have preferred to hold his verdict, but a new trial on punitive damages, with liability and a $35 million compensatory award already established, is not the end of the world.

Case Law Update: Death Damages in Massachusetts

cut dollar signIn a previous post, I discussed the recent SJC case of Klairmont v. Gainsboro Restaurant, Inc., in which the Court held that building code violations that were significant and longstanding might serve as a basis for liability under the Consumer Protection Act, Chapter 93A.   That decision is also important for its extensive (and somewhat confusing) discussion of the interaction of damage claims available in wrongful death and survival actions.

As the Court noted, both parties mistakenly assumed that the wrongful death statute, G.L. c.229, Section 2, provides the sole avenue to recover damages for wrongful conduct that results in death.  Instead, the Court recognized that there may be other statutory causes of action–including 93A claims–brought on behalf of the decedent for his own losses.

The damages available to the decedent’s estate (so-called survival claims) recognize the loss to the decedent himself, while the wrongful death statute permits recovery for consortium-type losses to the designated beneficiaries.   Thus, claims for medical expenses and the decedent’s conscious pain and suffering preceding his death belong to the estate.  On the other hand, the Court held that loss of consortium damages were available only under the wrongful death statute, and not as part of the estate’s claim under 93A.

The Court then focused on the related claims for lost earnings and loss of earning capacity.  In a somewhat confusing exposition, the SJC decided that the decedent’s estate could recover only for lost earnings actually sustained in the time between the injury and the death.  Any claim for future lost earnings, the Court held, would impermissibly duplicate the statutory beneficiaries’ claim for loss of reasonably expected net income as provided in G.L. c.229, and thus would not be allowed.

This result ignores the reality that many statutory beneficiaries under the wrongful death statute are not financially dependent on the decedent–as was likely the case of the college student in Klairmont.  In such cases, the SJC’s claim that an award to the estate for loss of future earnings would duplicate the beneficiaries’ recovery under the death statute is factually incorrect.  Thus, the decision leaves Massachusetts plaintiffs in death cases with a continuing bar to recovery of damages for future earning capacity, except to the extent that there are financially dependent beneficiaries.  And defendants whose victims are children, unmarried adults and even non-working parents, escape liability for an important category of financial loss.

The end result in Klairmont was a virtual evisceration of the trial court’s damage award made pursuant to G.L. c.93A, striking more than $2 million in damages awarded for the decedent’s economic loss and the decedent’s parents loss of consortium, as well as $2 million in attorney’s fees.  The SJC instructed the trial court that the damage awarded had to be recalculated in light of its opinion, and that the amount of the legal fee should be reviewed in light of the dramatic reduction in the final damage award.

The discussion of damages in Klairmont is an important reminder to examine all available causes of action so as to insure the decedent and his family a full recovery.  There may be practical reasons not to bring all of these claims, but that decision should be made reflectively, not reflexively.

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

Case Law Update: Chapter 93A and the Building Code

basement stairsThe Supreme Judicial Court held last week that violations of the Massachusetts building  code may form the basis for liability under the Consumer Protection Statute, General Laws Chapter 93A.  In Klairmont v. Gainsboro Restaurant, Inc., the SJC affirmed a judge’s finding of liability, holding that the defendant bar could be liable for the death of a college student who tumbled down a set of cellar stairs that violated multiple sections of the building code.

The stairs in question led from a back hall down to a cellar used for storage, and had been constructed in the early 1980s without obtaining required building permits.  The plaintiffs produced evidence that the stairs did not comply with several applicable sections of the building code, including the lack of a self-closing door, a landing at the top of the stairs, specific riser and tread dimensions, and a hand rail.   A kitchen manager at the restaurant had complained to the owner that the stairs were dangerous, and that both she and a sales representative had fallen on the stairs.

The plaintiffs’ son, a student at Northeastern, had apparently entered the back hallway to find a quiet place to take a phone call.  An employee found him a short time later at the bottom of the stairs with a fractured skull and a brain bleed, which proved to be fatal.  A jury found the bar negligent, but that the negligence did not cause the young man’s death; the judge, as permitted by G.L. c.93A, decided the causation question in favor of the plaintiffs.

While finding that not every building code violation would serve as a basis for liability under G.L. c.93A, the Court held that code violations that were “unfair or deceptive acts” that occurred in the course of trade or commerce might warrant recovery.   The Court noted that the defendants had knowingly violated the building code for more than 20 years, thereby creating a hazard in a place where alcohol is served.

The application of 93A, with its potential for multiple damages and attorney’s fees, is a powerful weapon for plaintiffs in premises liability cases.   While the SJC was careful to note that only a limited class of building code violations would rise to the level of 93A violations, in appropriate cases, a 93A claim will give the plaintiff important options to a traditional negligence action.   This remedy has long been available to plaintiffs in other types of personal injury claims, such as defective products.

An interesting feature of Klairmont is that the judge found in favor of the plaintiff after a jury had rejected their negligence claim.   This is permitted because the judge, who is the factfinder in the 93A claim, is not bound by the jury’s decision, and is free to make her own, in this case contrary, factual findings.  This result underscores what many experienced plaintiff’s lawyers have known for years–that jury-waived trials are not always to be feared, as many judges have not fallen prey to the tort reform propaganda that has infected many jury pools.

Klairmont also contains an extensive discussion of what damages may be recovered on the 93A claim, which will be the subject of a post later this week.

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

Examining the “Risk” of Malpractice

risk_factorA common defense lawyer’s explanation for a bad outcome is that what happened is “a risk of the procedure.”  But what does that really mean?  And what does it mean for a patient who suffers one of the known complications of a procedure or surgery?

As used by defense lawyers, “risk of the procedure” tries to convince a jury that the health care provider wasn’t negligent, that what happened was unvoidable, and happened despite appropriate actions by the provider.  But the explanation that a bad outcome was “a risk of the procedure” doesn’t answer the real question in a malpractice case, which is “Was the doctor negligent?”  Sometimes, there is a bad outcome even though the doctor did everything in a completely appropriate manner.  But sometimes, the bad outcome was the result of bad medical practice.  And that’s the definition of malpractice.

A good example of the difference comes from a case we handled recently.  A man had developed fluid around his heart and needed a procedure known as pericardiocentesis, where a needle is inserted into the space around the heart to drain out the fluid.  As you might imagine, any time a needle is in close proximity to the heart, there is a potential for injury,  So, one might say, injury to the heart is a known risk or complication of pericardiocentesis.

But if that injury occurs, it may or may not be due to negligence.  In our case, two important facts led us to conclude that the man’s death from injury to his heart was due to negligence, and was not  just an unavoidable complication.  First, although there are imaging techniques that are commonly used to allow the doctor to see the needle’s progress in real time, the doctor in our case chose not to use them.  He did the procedure “blind.”  And worse, when the heart monitor showed abnormalities indicating that the needle was touching the heart, the doctor did not stop the procedure.  Instead, he pushed on, puncturing the heart and causing the man’s rapid death.

The defense in this case urged the jury to conclude that what happened was “a risk of the procedure”–just bad luck, really, and that the doctors had done nothing wrong.  However, we were able to show that when something is a known risk, it’s even more important for the doctors to try to prevent that risk from occurring.  And that makes sense.  If you know the driveway is slippery and you might fall–you take precautions.  Maybe you spread salt on the pavement.  Maybe you walk more carefully.  Likewise, if a doctor is doing something that has a risk of harm, the negligence may be in not taking appropriate steps to prevent that harm.

This idea of taking appropriate precautions ties into the concept of informed consent.  When a patient gives informed consent, he acknowledges that he is aware that some risk is involved, even if everything is done perfectly–and he accepts that risk.  But that patient still has the right to expect the doctor to take every reasonable precaution to minimize or prevent that risk.  Put another way, the patient does not consent to malpractice, nor does he give up his right to bring a claim if the doctor is negligent in causing the injury.

This distinction, between an injury that occurs despite proper care by the doctor, and an injury that is caused by negligence, is important when evaluating a case where the injury is a “known risk” of the procedure.  That doesn’t end the inquiry–the crucial question is whether that “risk” should have been anticipated and prevented.  If so, there may be a valid malpractice claim.

Deciding on an Autopsy

Not uncommonly, I get a call from a distraught family member.  A loved one has just died, and someone needs to decide whether there should be an autopsy.  A terribly unpleasant decision to make, particularly under stressful and emotional circumstances.  And if the death has been preceded by events the family considers suspicious, the decision-making process is that much more emotionally charged.

Sometimes the call is precipitated by the fact that one or more family members don’t want to have their loved one subjected to the invasive procedure of autopsy.  “He’s been through enough.  I don’t want him to be cut again,” is a common refrain.  It may be a doctor who’s pushing the autopsy–in which case the doctor should be asked to explain the reason and the anticipated benefits, and leave the choice to the family, just as with any other medical procedure.

Other times, a family member is considering an autopsy as a means to answer unanswered (and sometimes unanswerable) questions.  I can hear the cynics bemoaning the fact that families are considering a lawsuit “at such a time.”  But sometimes the circumstances leading up to death make it almost inevitable that the thought will cross someone’s mind.  Consider, for example, a recent case we handled, where a healthy young wife and mother went to a day surgery facility for what was supposed to be a routine procedure to correct a sinus problem.  She ended up being transferred to a hospital, where she later died of internal bleeding.  With such an unexpected result, there are bound to be questions.

When the question is asked, I usually advise the family seriously to consider the autopsy.  Information is almost never a bad thing.  If the circumstances warrant litigation, the autopsy can provide important evidence of the cause of death, and the existence or non-existence of other medical conditions.  And sometimes, the autopsy shows something unexpected that may explain the death, or otherwise show that there was no malpractice.  Isn’t that a good thing for everyone to know?

Another question families ask, if the autopsy is to be performed at the same place where the death occurred, is, “Can I trust the hospital pathologist?”  Call me naive, but I believe that for the most part, the answer is yes.  In my experience, pathologists seem to be among the most scientifically honest members of the medical profession.  Not to say that cover-ups, or simply favorable, or even biased, interpretations don’t occur, but for the most part, I think pathologists call ’em like they see ’em.

The autopsy also preserves important information, in the form of stored tissues and prepared slides, for later use.  An independent pathologist can review the slides, or even have new tissue cuts prepared.  This process permits a second opinion to check the accuracy of the original review, or a new interpretation if additional clinical information is discovered.