Medical malpractice law

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Recent local outbreaks of measles have prompted health officials to issue immunization and prevention reminders: 

"The virus usually causes a red skin rash, high fever and watery eyes, symptoms that last for about a week. The first symptoms can appear as long as 21 days after exposure. Although most people recover within a week, measles can lead to pneumonia and, in rare cases, can be fatal. Those who suspect that they might have measles are encouraged to call ahead before going to doctors offices or hospitals to avoid spreading the virus.

Measles cases are uncommon in the United States because vaccinations are required of most schoolchildren and foreign-born individuals who become U.S. citizens. Outbreaks often begin when an unimmunized person visits a country where the disease is still prevalent and then returns with the infection. The virus is usually spread through sneezing and coughing and can remain in the air or on surfaces for two hours. "

Outbreaks continue to occur in high schools (one or two per year) and on college campuses (less than one per year). These educational institutions are potential high-risk areas for measles transmission because of large concentrations of susceptible people.

As the incidence rate of measles declines in the United States, aggressive surveillance becomes increasingly important. Known or suspected measles cases should be reported immediately to local health departments.

Speed in implementing control programs is essential in preventing the spread of measles. Control activities should not be delayed until laboratory results on suspected cases are received. All persons who cannot readily provide 1) a physician-documented history of measles, 2) laboratory evidence of measles immunity or 3) a documented history of vaccination with live measles virus vaccine on or after the first birthday should be vaccinated or excluded from school. Documentation of vaccination should be considered adequate only if the date of vaccination is provided. If a persons measles immunity is in doubt, he/she should be vaccinated."

"Despite the fact that a safe and effective measles vaccine costs less than $1, parents in many developing countries do not have access to immunization services that would protect their children. Factors such as poverty, poor health systems and a lack of information make it difficult for families to secure preventative medical care.

"As long as measles remains an issue for one nation, it remains a threat to all," said Athalia Christie, senior technical advisor with the American Red Cross.

The Measles Initiative - a partnership led by the American Red Cross, Centers for Disease Control and Prevention, United Nations Foundation, UNICEF, and the World Health Organization - is working to address this problem."

The Initiative, formed in 2001, has invested $670 million in measles control activities, helping to save an estimated 3.6 million lives. A strategy to reduce global measles mortality, which includes vaccinating all children before their first birthday through routine health services and mass campaigns, has been key to securing a 74 percent reduction in global measles deaths (2000-2007). More than 600 million children in 60 countries have been vaccinated through the Measles Initiative.

Following are statements issued by the Measles Initiative technical advisors:

"Measles knows no borders but can be prevented worldwide for less than $1 per child. We must be steadfast in our efforts to reduce measles cases globally. As long as children remain unvaccinated, they are at risk."

Posted by: Salvatore J. Zambri, Esquire and Catherine Bertram, Esquire

According to MercuryNews.com, technologists monitoring the threat have determined that hundreds of medical devices used at hospitals throughout the country are infected by the computer worm known as "Conficker".  The infected devices include MRI machines and hundreds, if not thousands, of other medical devices.  Manufacturer of the devices told investigators that "none of the machines were supposed to be connected to the Internet — and yet they were. And because the machines were running an unpatched version of Microsofts operating system used in embedded devices they were vulnerable," states the report.

The report explains that "Conficker spreads by copying itself onto machines running Microsofts Windows operating system that lack the security patch from October. Conficker installs itself and periodically reaches out for directions from its maker that cause it to rewrite its code, increasing its capabilities for malicious action and decreasing its chance of detection."  Apparently, patients have not yet been harmed, but it is clear that these infected devices place patients at risk.

To read the entire article, please click here.

Many Americans are injured or killed each year due to defective products.  For information about your legal rights, please click here or contact us at Regan Zambri & Long, PLLC at 202-463-3030. 

By Victor E. Long, Esq.

According to Washington Post  the American Cancer Society, finds Virtual Colonoscopy  to be effective at finding large polyps.  Virtual colonoscopy is a procedure used to look for signs of pre-cancerous growths, called polyps; cancer; and other diseases of the large intestine. Images of the large intestine are taken using computerized tomography (CT) or, less often, magnetic resonance imaging (MRI). A computer puts the images together to create an animated, three-dimensional view of the inside of the large intestine.

Invented 16 years ago by a radiologist who got the idea while playing video games on a flight simulator during advanced training at Johns Hopkins, virtual colonoscopy has become an increasingly popular.  However, Medicare has tentatively decided not to pay for virtual colonoscopies.

The benefits and risks of the procedure have been identified as follows:

Benefits

• This new minimally invasive test provides three-dimensional images that can depict many polyps and other lesions as clearly as when they are directly seen by optical colonoscopy.
• CT colonography has a markedly lower risk of perforating the colon than conventional colonoscopy. Most of those examined do not have polyps, and can be spared having to undergo a full colonoscopy.
• CT colonography is an excellent alternative for patients who have clinical factors that increase the risk of complications from colonoscopy, such as treatment with a blood thinner or a severe breathing problem.
• Elderly patients, especially those who are frail or ill, will tolerate CT colonography better than conventional colonoscopy.
• CT colonography can be helpful when colonoscopy cannot be completed because the bowel is narrowed or obstructed for any reason, such as by a large tumor.
• If conventional colonoscopy cannot reach the full length of the colon—which occurs up to 10 percent of the time—CT colonography can be performed on the same day because the colon has already been cleansed.
• CT colonography provides clearer and more detailed images than does a conventional barium enema x-ray examination.
• CT colonography is tolerated well. Sedation and pain-relievers are not needed, so there is no recovery period.
• CT colonography is less costly than colonoscopy.
• No radiation remains in a patients body after a CT examination.
• X-rays used in CT scans usually have no side effects.

Risks

• There is a very small risk that inflating the colon with air could injure or perforate the bowel. This has been estimated to happen in fewer than one in 2,000 patients.
• There is always a slight chance of cancer from excessive exposure to radiation. However, the benefit of an accurate diagnosis far outweighs the risk.
• The effective radiation dose from this procedure is about 5 mSv, which is about the same as the average person receives from background radiation in 20 months. 
• Women should always inform their physician and x-ray or CT technologist if there is any possibility that they are pregnant. 
• CT scanning is, in general, not recommended for pregnant women unless medically necessary because of potential risk to the baby.

Posted by Victor E. Long, Esq.

According to a recent study published in the April 2009,  New England Journal of Medicine, although uncontrolled asthma may increase the risk of adverse perinatal outcomes, women with well-controlled asthma in pregnancy generally have good outcomes.  The recommendations in the article are consistent with the guidelines published by the American College of Obstetrics and Gynecology in 2008.

Avoiding allergens and irritants, such as tobacco smoke, that exacerbate asthma can improve maternal well-being and lessen the need for medication. Additional information is available thourh American College.

Specific recommendations are as follows:

• During pregnancy, it is safer for women with asthma to be treated with asthma medications than to have asthma symptoms and exacerbations.
• The clinical assessment of asthma includes both subjective evaluations as well as pulmonary function tests.
• During pregnancy, the main goal of asthma treatment is to maintain sufficient oxygenation of the fetus by preventing hypoxic episodes in the mother.
• The step-care therapeutic approach entails increasing both the number and dosage of medications as asthma severity increases.
• For persistent asthma during pregnancy, first-line controller therapy consists of inhaled corticosteroids.
• During pregnancy, budesonide is the preferred inhaled corticosteroid.
• For pregnant women with asthma, recommended rescue therapy is inhaled albuterol.
• Maternal well-being can be improved, with less need for medication, by identifying and controlling or avoiding exposure to tobacco smoke and other allergens and irritants.
• Continuing immunotherapy is recommended for women who are at or near a maintenance dose, who are not having adverse reactions to the injections, and who seem to be deriving clinical benefit.
• In general, only small amounts of asthma medications enter breast milk. During breast-feeding, use of prednisone, theophylline, antihistamines, inhaled corticosteroids, beta₂-agonists, and cromolyn is therefore not contraindicated.

For information about your legal rights, please click here or call the law firm of Regan Zambri & Long, PLLC at 202-463-3030.

By Victor E. Long, Esq.

Has your rhuematologist recommended exercise to relieve symptoms of arthritis?    Working with a good fitness trainer can ensure that your exercise meets your needs.  However the qualifications of fitness trainers vary widely. First ask your rhuematologist  or physical therapist to refer you to a qualified trainer. You can also check with your local chapter of the Arthritis Foundation, which may have a list of trainers experienced in working with people who have arthritis.

Once youve selected several trainers and determined their certification, youll need to interview them, asking the following:

According to a recent investigation by the Associated Press, "U.S. manufacturers, including major drugmakers, have legally released at least 271 million pounds of pharmaceuticals into waterways that often provide drinking water - contamination the federal government has consistently overlooked."

"Federal and industry officials say they dont know the extent to which pharmaceuticals are released by U.S. manufacturers because no one tracks them - as drugs. But a close analysis of 20 years of federal records found that, in fact, the government unintentionally keeps data on a few, allowing a glimpse of the pharmaceuticals coming from factories.

As part of its ongoing PharmaWater investigation about trace concentrations of pharmaceuticals in drinking water, AP identified 22 compounds that show up on two lists: the EPA monitors them as industrial chemicals that are released into rivers, lakes and other bodies of water under federal pollution laws, while the Food and Drug Administration classifies them as active pharmaceutical ingredients.

The data dont show precisely how much of the 271 million pounds comes from drugmakers versus other manufacturers; also, the figure is a massive undercount because of the limited federal government tracking.

To date, drugmakers have dismissed the suggestion that their manufacturing contributes significantly to whats being found in water. Federal drug and water regulators agree.

But some researchers say the lack of required testing amounts to a dont ask, dont tell policy about whether drugmakers are contributing to water pollution."

"After contacting the nations leading drugmakers and filing public records requests, the AP found two federal agencies that have tested.

Both the EPA and the U.S. Geological Survey have studies under way comparing sewage at treatment plants that receive wastewater from drugmaking factories against sewage at treatment plants that do not."   Results from these studies are expected to be released later this year.

As recently reported in American Medical News, Washington Hospital Center began a pilot program for residents working in the intensive care unit - an ethics checklist.  The program was implemented after a realization that checklists seemed to have helped in surgery and infection control.  "Hospitals implementing the WHO checklist cut deaths after surgery by 46% and surgical complications by 36%.   Director of WHO Safe Surgery Saves Lives initiative recommends integrating ethics issues."  We have reproduced the ethical checklist in its entirety:

Clinical Ethics Patient Assessment

Add relevant ethical issues to progress notes and report on rounds

• Patients wishes unclear/refusal of treatment
• Questionable capacity to consent to, or refuse, treatment
• Disagreement involving relatives/surrogates/caregivers
• End-of-life (advance directive/power of attorney, do not resuscitate/allow natural death, withdraw/withhold Rx)
• Confidentiality/disclosure issue
• Resource or fairness issue
• Other (please note)
• No notable ethical issues

The idea is "fantastic," said John J. Lynch, MD, chair of the Washington Hospital Centers bioethics committee. "This is a brief list that raises the really important questions that residents and other physicians need to be clear about. It makes eminent sense."

The ethics checklist will be considered at the Loyola University Chicago Stritch School of Medicine, said Kayhan Parsi, PhD, a clinical ethicist who directs the Neiswanger Institute for Bioethics and Health Policy graduate program there.

"What the checklist does, in my mind, is it more formally integrates ethics into the care of patients so it really just becomes part of the culture," Parsi said. "It actually standardizes care so everyone gets treated in a similar fashion."

Dr. David Warriner, a physician in South Yorkshire, England, is so enthusiastic about the checklist concept that he had an ink stamp made of it so that he can quickly add it to patients charts.

"The list stimulates doctors to think laterally, concerning themselves with the patient, the relatives and their future, not just their temperature, blood tests or scan results," Dr. Warriner said.

Some skeptics of the ethical checklist believe that ethical issues should be integrated into existing checklists, while others believe that checklists receive too much hype and dont think they will change behavior.

"FDA warned consumers to immediately stop using Hydroxycut products by Iovate Health Sciences, Inc. Hydroxycut products are associated with a number of serious liver injuries. Hydroxycut products are dietary supplements that are marketed for weight-loss, as fat burners, as energy-enhancers, as low carb diet aids, and for water loss under the Iovate and MuscleTech brand names.

FDA has received 23 reports of serious health problems ranging from jaundice and elevated liver enzymes, an indicator of potential liver injury, to liver damage requiring liver transplant. One death due to liver failure has been reported to FDA. Other health problems reported include seizures; cardiovascular disorders; and rhabdomyolysis, a type of muscle damage that can lead to other serious health problems such as kidney failure.

The agency has not yet determined which ingredients, dosages, or other health-related factors may be associated with risks related to these Hydroxycut products. The FDA continues to investigate the potential relationship between Hydroxycut dietary supplements and liver injury or other potentially serious side effects.

Read the complete MedWatch Safety summary including links to the FDA news release, Q&As and a listing of all products included in this alert."

Posted by: Salvatore J. Zambri, Esquire and Catherine Bertram, Esquire

Doctors are increasingly practicing medicine in DC, Md, and Va.  This fact flatly rejects the myth that physicians are fleeing because of medical liability concerns.  The new figures from the American Medical Association (AMA) show the number of doctors has risen over the last five years and also outpaced the metropolitan areas population growth.

“The AMA’s own figures show that tort reform is clearly unnecessary, and may actually be detrimental to patient safety," states Salvatore J. Zambri, senior partner at Regan Zambri & Long and Past-President of the Trial Lawyers Association of Metropolitan Washington, D.C.  According to a comprehensive study by the American Association for Justice, nationwide, all states saw an increase in doctors; however, the number of physicians per capita (100,000 population) is 13 percent higher in states without caps. In the four states that doctor growth did not outpace population (Georgia, Alaska, Utah and Montana), caps have been passed.  Additionally, a study released in December 2008 from the American College of  Emergency Physicians showed that states with tort reform scored far worse in patient safety.

“Safety improves when patients can hold negligent hospitals or doctors accountable,” said Zambri.  “Tort reform will only help insurance companies that want to hoard more profits while leaving patients less safe.”

Posted by Patrick Regan and Paul Cornoni

Bloomberg News (4/30 Fisk, Feeley) reports, "Just two months after the U.S. Supreme Court decided patients can sue drugmakers over injuries from medicines approved by the government, long-stalled lawsuits against GlaxoSmithKline Plc and Bristol-Myers Squibb Co. are again moving toward trials."

The Supreme Courts decision in Wyeth essentially states that federal regulatory approval (FDA) of a medicine or drug doesnt shield drugmakers from claims that patients were not adequately warned of potential side effects and other harms.  The Wyeth decision has already affected more than 250 lawsuits involving at least ten different drug companies. 

As the article explains: "Glaxo this month settled two cases on claims its antidepressant Paxil can make patients suicidal, after judges set trials citing the Wyeth decision. A Barr Pharmaceuticals hyperactivity-drug case is to be tried in August in federal court in Tallahassee, Florida. And a group of Bristol-Myers lawsuits over the blood-thinner Plavix may now proceed to trial in federal court in Trenton, New Jersey."

Posted by Catherine D. Bertram, Esquire and Salvatore J. Zambri, Esquire

The U.S. Agency for Healthcare Research and Quality supported a study of 122 closed malpractice claims by Allen Kachalia, M.D., J.D., Tejal K. Gandhi, M.D., M.P.H., Ann Louise Puopolo, B.S.N., R.N., and others, the results were published in the February 2007 Annals of Emergency Medicine 49(2).  That study has been available for more than two years.   Unfortunately, we continue to see these sames types of errors in the cases we have at Regan Zambri & Long.  As set forth below in the AHRQ summary,  a majority of the ER malpractice cases that were reviewed involve  failure to order appropriate test and consults or failure to perform an adequate examination of the patient. 

According to the government study, "65% of the cases involved missed emergency department (ED) diagnoses that harmed patients. Nearly half (48% ) of these missed diagnoses were associated with serious harm, and 39 percent resulted in death. The leading breakdowns in the diagnostic process were failure to order an appropriate diagnostic test (58 percent of errors), failure to perform an adequate medical history or physical examination (42 percent), incorrect interpretation of a diagnostic test (37 percent), and failure to order an appropriate consultation (33 percent).  The cause of malpractice was complex.  A majority of cases involved multiple breakdowns in the diagnostic process, several contributing factors, and more than one provider. The most common contributing factors were mistakes in judgment (87 percent of missed diagnoses), lack of technical competence or knowledge (58 percent), and lapses in vigilance or memory (41 percent).

These cognitive factors operated alone in one-third of missed diagnoses; in two-thirds of cases other factors also contributed to the missed diagnoses. Other leading contributing factors to missed diagnoses included patient-related factors (34 percent), lack of appropriate ED staff supervision (30 percent), inadequate handoffs of patients to new staffers (24 percent), and excessive workload (23 percent)."

We have extensive experience litigating cases involving emergency room malpractice.  The outcomes can be tragic and sometimes, even deadly.   It is critical to have the records evaluated by a board-certified emergency medicine physician in order to determine if the national standard of care was breached and if the error caused serious injury or death to the patient.  At Regan Zambri & Long, we have relationships with nationally known experts in Emergency Medicine who will review the case and give us the answers you need to determine if medical error was involved.    Please contact us by clicking here or call 202-463-3030 for a consultation. 

Posted by Jacqueline Colclough

The Washington Post is reporting that a member of the security advance team for President Obamas trip to Mexico is suspected of having contracted the swine flu and transmitted it to his family in Anne Arundel County, Maryland. The agent is on the staff of Energy Secretary Steven Chu and appears to have transmitted the virus to his wife, son and nephew.

White House Press Secretary Robert Gibbs has reported that the President has not been affected by the virus, further stating that White House physicians believe that he does not need to be tested. President Obama was in Mexico for less than 24 hours en route to the three-day Summit of the Americas in Trinidad and Tobago. A museum official who escorted Obama through an exhibit died of health problems unrelated to the flu a week later, and White House officials earlier this week went to great lengths to explain that "the presidents health was never in any danger."

Previously on the DC Metro Area Medical Malpractice Law Blog, we have posted the following articles:

• Swine Flu Affects Maryland Residents;
• Swine Flu Raising More Questions Than Answers While the U.S. Sees Its First Fatality;
• World Health Organization Raises Swine Flu Pandemic Alert to Phase 4;
• CDC Provides Swine Flu Questions and Answers.

If you have been in contact with anyone who has traveled to parts of the world where swine flu has been detected, we encourage you to seek a medical evaluation. Obviously, if you suffer any symptoms associated with swine flu, please seek medical attention immediately.

For information, please click here or contact us at Regan Zambri & Long, PLLC at 202-463-3030.

Posted by Jacqueline Colclough

On April 27, 2009, the American Urological Association (AUA) issued new guidelines on prostate cancer screening for men. Contrary to recent advice of other groups, AHA recommends that well informed men aged 40 and over who have a life expectancy of at least 10 years should be offered the prostate-specific antigen (PSA) test in order to establish a baseline reading and that PSA testing should be individualized rather than a blanket annual test for any man aged 50 and over. These guidelines have been issued amid growing recent controversy regarding when men should start regular PSA screening, how often, and at what point a biopsy is indicated.

These guidelines are set forth in the updated AUA Best Practice Statement, which was first issued in 2000. The main change to the statement is the recommendation that well informed men aged 40 and over who have a life expectancy of 10 years or more should have the option to go in for early detection and risk assessment for prostate cancer.

Dr. Peter Carroll, Chair of the AUA panel that developed the new guidelines, said the most important message is that "[p]rostate cancer testing is an individual decision that patients of any age should make in conjunction with their physicians and urologists.” Prostate cancer, as noted by Dr. Carroll, comes in many forms, some of which are aggressive. "But the bottom line about prostate cancer testing is that we cannot counsel patients about next steps for cancer that we do not know exist."

Please see the American Cancer Society for important information about prostate cancer.  To view the AUA guidelines, please see the 2009 Updated Best Practice Statement.

Posted by Jacqueline Colclough

According to a new survey from the American Hospital Association (AHA), six out of ten hospitals in the United States are seeing a greater proportion of patients without health insurance coming through their emergency departments, while nearly half of hospitals reported that they have reduced staff. In fact, the U.S. Bureau of Labor Statistics has released information confirming that hospital employment is no longer growing and that the number of mass layoffs for hospitals reported in February 2009 was more than double what it was a year ago.

Further, the majority of reporting hospitals disclosed that fewer patients are seeking elective and inpatient services, while many hospitals are seeing more patients covered by Medicaid and other public programs for those in need. The need for hospital-subsidized services such as clinics, screenings and outreach is increasing even as charitable contributions are down for many hospitals.

"Todays findings signal what many of us in health care are concerned about: people put off care when they lose their job, which can complicate health care issues for many down the road," said AHA President and CEO Rich Umbdenstock. "At the same time, the fact that hospitals are cutting staff challenges the notion that hospitals are recession-proof."

To view the AHA report in its entirety, please click here.  For more information about your legal rights, please visit us at Regan Zambri & Long, PLLC.

According to a recent editorial in the NY Times, an alarming one-fifth of all Medicare patients discharged from the hospital end up back in the hospital within 30 days, and fully a third return within 90 days. If this yo-yoing could be greatly reduced, Medicare could save billions of dollars. Many patients would certainly benefit from the better care.

High rates of rehospitalization are partly the fault of the hospitals. The more fundamental problem is the fragmented nature of the American medical system: too often, health-care providers fail to communicate with one another, patients fall between the cracks and no one seems clearly in charge of a patient’s welfare.

A new analysis by three researchers, published in The New England Journal of Medicine, estimated that unplanned rehospitalizations among fee-for-service beneficiaries cost Medicare $17.4 billion in fiscal year 2004, which is a big chunk of the $102.6 billion that Medicare paid hospitals that year.

Most patients were readmitted for problems other than those that led to their original hospitalizations. Surgical patients, for example, were typically readmitted for such medical conditions as pneumonia, heart failure or bacterial infections. Some of these readmissions may have been unavoidable in an elderly, sick population. But many could surely have been prevented through better planning and coordination.

The most disturbing finding was that half of the medical (nonsurgical) patients readmitted within 30 days had not seen a physician for follow-up care after they were discharged. They were apparently left on their own, perhaps with poorly understood instructions from the hospital on how to take care of themselves.

There was also wide variation in readmission rates between hospitals and between states: only 13 percent of patients were readmitted within 30 days in Idaho, compared with 22 percent in Maryland. That suggests that there is plenty of room for improvement. The rates were adjusted to compensate for the severity of patients’ illnesses, so hospitals and states with high readmission rates can’t easily blame caring for sicker patients.

Proposed solutions include better discharge planning by hospitals, more effective education of patients and closer cooperation between hospitals and physicians to ensure follow-up care.

The Obama administration, as part of its ambitious health care reform, has proposed that Medicare use incentives and penalties to encourage hospitals and doctors to cooperate in overseeing care from hospitalization through the first 30 days after discharge. The administration estimates the approach could save $26 billion over 10 years. It is a sound idea that should also improve the lives of patients.