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The Dangers of a Concussion by Pat Iyer

Wednesday, September 1st, 2010

When I was 19 years old, a frisky horse threw me and I landed on my head. I woke up sitting on my friend’s bed, having no memory of walking across the field with her to her house, and no understanding of how I had come to visit her. Her answers to my questions gradually made sense as my comprehension returned. After this concussion, I noticed I have trouble speaking fluently if I am very tired or stressed. I was fortunate. I was not taken to the emergency department to check for a skull fracture or brain bleed. My friend was a veteran of the rodeo circuit and said she had never seen anyone thrown as hard as I was. Her guilty–looking horse knew he had made a big mistake.

Soccer can cause head injuries The subject of head injuries associated with sports is in the news. A new study found high school-age athletes are more likely than younger kids to have sports-related concussions, but the rate of such injuries in both groups is on the rise. From 1997 to 2007, emergency department visits for concussion in kids aged 8 to 13 playing organized sports doubled, and the number of visits increased by more than 200 percent in older teens, according to the report. In related news, the American Academy of Pediatrics has issued new guidelines on what to do about sports-related concussions, with advice for both parents and physicians. The study and guidelines are published online and in the September print issue of Pediatrics. See the table for recommendations of action. Parents should know that “no athlete should go back to play on the same day they have their concussion. We recommend athletes who have a concussion be evaluated by a medical professional before they return to play,” Dr. Halstead said. Concussions can result in intracerebral hemorrhage, cerebral edema, and permanent damage. Repeated concussions, such as those suffered by boxers, can be disabling.

Source: http://www.healthfinder.gov/news/newsstory.aspx?docID=642556

Med League has worked on a few cases involving school-related head injuries. This is what I recall about these cases. In the first case, the school nurse became a defendant when a child hit her head on the wall. The school nurse was not clear enough to the parents about the need to have the child checked in an ER instead of going home. The child suffered a catastrophic brain injury; the plaintiff won the case.

In the second case, a college student was hit in his head during a soccer game, passed out, and was taken to the infirmary where an orthopaedic surgeon and college nurse examined him. Although they both advised him to go to the ER, he refused and went back to his dorm. A day later his roommate found him unresponsive and took him to the hospital, where he was diagnosed with a catastrophic brain injury. The judge dismissed the case against the defendants during trial.

The value of head injury cases is largely dependent on the liability issues and the extent and permanency of the damages. School personnel will need to be familiar with these guidelines so they obtain the urgent medical attention needed after a concussion. A delay in recognizing the development of swelling or bleeding can lead to permanent injuries.

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Tags: concussion, head injury, intracranial bleed, school injury
Posted in Damages, Emergency Medicine | No Comments »

Death after being restrained by Pat Iyer

Wednesday, August 25th, 2010

The charge nurse found Alexis Evette Richie alone in a small room at SSM DePaul Health Center, motionless and sprawled facedown on a bean bag chair. Minutes earlier, the 16-year-old foster child had tried to hit, scratch and bite staff members in the adolescent psychiatric ward. Two aides grabbed her arms and took her down a hall and into a small room called the “quiet room.”

They held her facedown in the chair while a nurse injected a sedative into her hip. Alexis continued to struggle and then went limp. The nurse and the two aides left without checking her pulse or making sure she was breathing. Charge nurse Iris Blanks checked on her minutes later and didn’t think Alexis looked right. An aide helped Blanks roll the girl over. Alexis wasn’t breathing. Her pulse was faint. It was 12 minutes after she stopped moving before anyone tried to revive Alexis. By then it was too late.

Dr. Wanda Mohr and I did a teleseminar on the topic of death in restraints. She talked about a colleague of hers who did a study of pediatric deaths from restraints. Just simply looking at lawsuits and newspaper articles, within that 10-year period he found that 45 deaths had occurred and those deaths were specifically limited to children. The youngest child who had died was 6-year-old. The most common mechanism of death is restraint asphyxia. A person essentially asphyxiates or chokes to death. Her oxygen is cut off and that, most commonly, occurs in a prone position. This is associated with individuals actually putting pressure on people’s back and their lower back and despite their pleas that they were unable to breathe, the staff would not let the person up.

For a death in another treatment center, read about a 17-year-old boy who was strangled while being restrained.

One child dying of being restrained is far too many. There are safe ways to help agitated or violent people get back under control. Any healthcare provider working in a setting where this type of behavior could occur should know how to protect the patient (as well as the healthcare workers) from injury.

What are these?

Tags: Alexis Richie, asphyxiation, choking, death in restraints
Posted in Damages, Healthcare Risk Management, Patient safety, medical errors | No Comments »

Do You See What I See? by Pat Iyer

Monday, June 14th, 2010

From behind, the group of people walking in front of me through Newark Airport last week looked like a family. There was an older woman, a young couple, and a baby being pushed in the stroller. I filled in: grandmother, husband and wife and child. Then I took a closer look. The first detail I noticed was the older woman. She was in her early 50s. Her hair was cut in a punk style. The top half was dyed a deep purple. The next layer has dyed peacock blue. The bottom layer was a natural brown. She wore a black and white horizontal striped jacket over a white billowy dress. She had on black and white flower pattern leggings. Around her upper right arm was a wide tattoo.

The “husband” was Caucasian. The woman pushing the baby was Asian. The child looked to be full blooded Asian. After studying this unusual group, I realized how quickly I made assumptions. I assumed without thinking that they were a family. (And maybe they were – but maybe they weren’t.) Then I filled in other ideas, and speculated about their relationship, but all I was left with was questions.

How quickly do we jump to conclusions? In the medical legal arena, how often do we reach unfounded conclusions about the defendant? The plaintiff? The public may believe people who sue for medical malpractice are primarily interested in money. Read Sorrel King’s book, Josie’s Story, about the medical error that cost her 18-year-old daughter her life. In the book, Sorrel wrote that her attorney brought legal documents from Johns Hopkins, where the error occurred. “There it was: the settlement offer. It was a concept that was difficult to comprehend – money for the death of our daughter. The concept of us accepting it was almost as appalling as them offering it. We didn’t want their money and felt that by accepting it we would be letting them off the hook. We didn’t want it to be so easy for them.”

When their attorney asked them what they did want, Sorrel said, “I wanted them to remember Josie, to learn something from her and to never let this happen again. I want every hospital in the country to know her name and why she died. I want them all to learn something”’, I said angrily. Her attorney replied, “‘Then do that. Do that with the settlement money. If you leave this money, it will just get sucked up in a black hole. Take the money and do something good. Do something for Josie. You can make this more than a sad story for the media to cover. You can create something much more.” The King family took their settlement check and funded patient safety efforts in the hospital in which their daughter died, and has been instrumental in improving safety in other hospitals throughout the world.

Look at your conclusions. Are they founded on information or insufficient data? How often do we go through a situation assuming we understand it, only to realize a fact that changes all of our conclusions? I recently worked on a large case involving a girl who was in a motor vehicle accident. Her attending physician documented she was intoxicated at the time she came into the emergency department. I got three quarters of the way through 10 three binders before I saw a letter from her attending physician admitting he was given misinformation and the girl had a zero blood alcohol level.

Question your assumptions. Get more data. Ask questions.

What are these?

Tags: blood alcohol level, Josie's Story, Medical malpractice, medication error, Patient safety, Sorrel King
Posted in Damages, Medical malpractice, Nursing malpractice, Personal observations, medical errors | No Comments »

Prescription drug overdoses on the rise in U.S.

Monday, June 7th, 2010

by Megan Brooks
(Reuters Health) – More and more Americans are landing in the hospital due to poisoning by powerful prescription painkillers, sedatives and tranquilizers, according to a report released American Journal of Preventive Medicine, April 2010. City-living middle-aged women seem particularly vulnerable.
People have seen the headlines related to Heath Ledger, Michael Jackson, Anna Nicole Smith and they think that’s tragic but maybe contained to Hollywood,” Dr. Jeffrey H. Coben of West Virginia University School of Medicine in Morgantown told Reuters Health. “But the fact of the matter is we are seeing, across the country, very significant increases in serious overdoses associated with these prescription drugs,” Coben warned.

Between 1999 and 2006, US hospital admissions due to poisoning by prescription opioids, sedatives and tranquilizers rose from approximately 43,000 to about 71,000. That increase of 65 percent is about double the increase observed in hospitalizations for poisoning by other drugs and medicines, Coben and colleagues found.

Opioids — examples include morphine, methadone, OxyContin and the active ingredient in Percocet — are powerful narcotic painkillers that can be habit-forming. Some examples of sedatives or tranquilizers include Valium, Xanax, and Ativan.

What’s behind the rise in poisoning by prescription painkillers, sedatives and tranquilizers? “There is not any single cause,” Coben said. “There is increasing availability of powerful prescription drugs in the community and attitudes toward their use tend to be different than attitudes toward using other drugs, especially among young people, who report that prescription drugs are easy to obtain, and they think they are less addictive and less dangerous than street drugs like heroin and cocaine.”
Read more

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Tags: drug overdose, Medication errors, medication overdoses, narcotics, opioid overdose
Posted in Damages, Medication errors, Patient safety, medical errors | No Comments »

Common Errors of Pharmacy Technicians – Guest Post by Ashley Jones

Wednesday, June 2nd, 2010

Medications save lives, but they do so only when they’re taken correctly – by the right patient, who takes the right medicine, at the right time, in the right dosage, by the right route, and for the right amount of time. According to the National Patient Safety Foundation, of the 3 billion prescriptions that are filled, as many as 30 million dispensing errors occur. While some of them are not even noticed, others can have serious consequences, even resulting in death at times. The most common pharmacy errors occur when:

• Pharmacy technicians hand out the wrong prescriptions to patients – they get the names wrong, which means the entire set of medicines is wrong. (Pat was once given pills for another patient with the same last name. The technician did not ask for her first name.) And when patients fail to check the drugs they’ve been given and follow the prescription blindly without even looking at the name, it spells disaster in the making.
• Overworked and negligent pharmacy technicians give out the wrong drug because they don’t read the prescription carefully. This could cause serious consequences if the patient is allergic to the new drug or if it worsens their symptoms and causes them to become more ill.
• Pharmacists and technicians substitute one drug for another without checking with the doctor who prescribed the drug. This could lead to complications because the pharmacist is assuming that he/she is qualified to make the switch.
• They give out drugs that are past their expiration dates and which could either cause harm or not effect a cure since they are worthless past a certain date.
• Pat adds: They can misinterpret handwriting and fill the prescription with the wrong medication.

Errors can have profound consequences for the pharmacists who supervise technicians. A former Ohio pharmacist pled no contest to involuntary manslaughter of a 2-year-old child who died in 2006 as a result of a chemotherapy compounding error. The pharmacy board revoked the pharmacist’s license, and a grand jury indicted him on charges of reckless homicide and involuntary manslaughter. The pharmacist faced up to 5 years in prison. Prosecutors held the pharmacist responsible for the toddler’s death because he oversaw the preparation of her chemotherapy. The child had undergone surgeries and four rounds of chemotherapy to treat a curable malignant tumor at the base of her spine. She was supposed to receive her last dose of chemotherapy on the day of the error. A pharmacy technician mistakenly prepared the infusion using too much 23.4% sodium chloride. According to a news report, the technician mentioned to the pharmacist that the final preparation didn’t seem right, but the error went unnoticed. The infusion was administered to the child, who died 3 days later.

The Institute for Safe Medication Practices expressed the outrage of many in the patient safety world that this case resulted in criminal charges. Safety experts including ISMP advocate for a fair and just path for individuals involved in adverse events, arguing that punishment simply because the patient was harmed does not serve the public interest. Its potential impact on patient safety is enormous, sending the wrong message to healthcare professionals about the importance of reporting and analyzing errors.

Most of these errors occur when pharmacy technicians and pharmacists are too busy, distracted, and overworked. As patients, we can help minimize pharmacy errors by being vigilant, checking the name on the prescription, double checking the medicines against the prescription, ensuring that the drugs are not past their expiration date, and consulting the doctor before we switch to generic or branded equivalents. Don’t be in a rush because it could be a matter of life and death – take the time to check with your pharmacist if you’re not sure that you’ve been given the right medication or if it looks different from what you’ve been taking so far. It’s your health and your life, and unless you assume responsibility for both, you are equally to blame for the disasters that happen when pharmacy errors occur.

This article is contributed by Ashley M. Jones, who regularly writes on the subject of Pharmacy Technician Certification. She invites your questions, comments at her email address: ashleym.jones643@gmail.com.

What are these?

Tags: drug store errors, medication dispensing errors, Medication errors, pharmacy errors, pharmacy technician errors
Posted in Damages, Medication errors, Patient safety | 2 Comments »

Debridement: A Painful Treatment by Pat Iyer

Monday, May 24th, 2010

Debridement is the medical term for cutting away dead tissue from a pressure sore. It is pronounced as if the “I” is a long “e” or “ee”. Debridement can be performed by chemical or mechanical means. Chemical debridement agents use enzymes to digest dead tissue. Mechanical debridement can be performed by maggots, by surgeons, or nurses. Medicinal maggots (called maggot debridement therapy) clean the wounds by dissolving dead and infected tissue. Some doctors call them microsurgeons. Many people find this concept repulsive. I worked on a case involving infected breast tissue. The patient asked the nurses to remove the maggots because she felt them biting her. The photograph I inserted into my report summarizing medical records, which showed a jar full of maggots, helped to settle the case.

Surgical debridement of a foot

Surgeons perform debridements at the bedside or in the OR. Bedside debridements can be the most painful as there is no anesthesia and only occasionally do the surgeons order pain medication in advance. They cut tissue until it bleeds.

Nurses perform debridements when they use wet to dry dressings, a practice which was no longer recommended as of 1994 but is still being done today. This practice is not advised because allowing the dressing to dry pulls off healthy tissue.

Practice tip for personal injury attorneys: Look for evidence of maggots, bedside debridement or wet to dry dressings. Ask the patient or family about whether these procedures were performed. These are painful procedures that have great jury impact.

What are these?

Tags: debridement, maggot debridement therapy, painful debridement, wound debridement
Posted in Damages, Pain and suffering, Personal injury, Trial lawyer skills | No Comments »

The Pain Score – Modified by Pat Iyer

Wednesday, May 19th, 2010

Pain over a score of 4 interferes with daily activities.

Pain is typically measured on a scale from 0-? Who knows the answer to this question?

The right answer is 10.

The zero to ten pain intensity scale is the most common method of determining pain intensity or severity. One to three is mild pain, four to six is moderate pain and seven to ten is severe pain. Screening pain scores (a pain intensity rating at the time of patient visit or admission) can be used to get a baseline indication of pain level upon hospital admission or with each ambulatory care visit. Each patient should be assessed for the presence of pain, pain intensity, and barriers to pain assessment. To make the process easier, simple screening questions are used on acute and long term care admission forms to ask if pain is present and if so at what intensity, if the patient has any prior problems with pain management, or if the patient has had severe pain for longer than twenty-four hours. If the patient indicates pain, or responds positively to these questions, a more detailed and comprehensive pain assessment should be carried out. The use of screening scores for pain assessment has been cited by the Joint Commission as one method of identifying patients with pain.

These pain scores or forms with pain assessments should be entered into the patient’s permanent chart. If the patient has a pain rating of 3 or above on a 0 to 10 scale, there should be a documentation of further assessment questions. Appropriate questions might be; what caused the pain, where is it located, how long has it been present, what has the patient been using for pain relief, how many days of work have been lost? There should also be some written indication of what the cause of the pain might be; tests such as x-rays, CT or MRI scans are ordered if the cause is unclear. The medical plan should include interventions or actions for pain relief. These actions could include pain medications, physical therapy evaluation, or a pain specialist consultation. This intensity scale is used for reassessment after pain medications to indicate how effective the pain medication is for relieving the patient’s pain.

How can plaintiff personal injury attorneys use this? Here’s your practice tip: Have the patient describe the character of the pain. Patients use words such as squeezing, crushing, tightness, cramping, throbbing, shooting, aching, dull, and pulling. Ask the plaintiff to use vivid words. Also, consider having a medical person find the references to pain levels and have them placed on a graph to show the actual values.
Modified from D’Arcy, Y., “Pain Assessment”, in Iyer, P. (Editor), Medical Legal Aspects of Pain and Suffering

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Posted in Damages, Pain and suffering, Personal injury, Trial lawyer skills | No Comments »

Do Not Resuscitate Orders- Expanded by Pat Iyer

Monday, April 26th, 2010

Teri Cox RN MS CLNC presented a provocative concept to the New Jersey chapter of the American Association of Legal Nurse Consultants at our March 2010 meeting. CPR is a medical intervention. A competent patient may refuse to have CPR performed in the event of a sudden death.

There is a newer form of an advanced directive that memorializes the wishes of a competent patient. Called the “Physicians Order for the Life Sustaining Treatment”, it is portable, brightly colored, and addresses not only CPR, but also antibiotic use, artificial nutrition, and degree of medical intervention desired. The Physician Orders for Life-Sustaining Treatment (POLST) Paradigm program is designed to improve the quality of care people receive at the end of life. It is based on effective communication of patient wishes, documentation of medical orders on a brightly colored form and a promise by healthcare professionals to honor these wishes.

The purpose of this paradigm is to convert the patient’s treatment goals into medical orders. The process is based on communication with patients and/or surrogates (i.e. an informed consent process). It is not just a form, but a program that brings together multiple providers from across the healthcare system to meet the goals of patients. In order to be considered a POLST Paradigm Program, the Program must include these elements:
1. The form constitutes a set of medical orders.
2. The process includes training of health care providers across the continuum of care about the goals of the program as well as the creation and use of the form.
3. Use of the form is recommended for persons who have advanced chronic progressive illness, those who might die in the next year or anyone wishing to further define their preferences of care.

The form may be used either to limit medical interventions or to clarify a request for all medically indicated treatments including resuscitation. The form provides explicit direction about resuscitation status if the patient is pulseless and apneic. The form also includes directions about other types of intervention that the patient may or may not want, for example, decisions about transport, ICU care, antibiotics, artificial nutrition, etc. The form accompanies the patient, and is transferable and applicable across care settings (i.e. long term care, EMS, hospital). The form is uniquely identifiable, standardized, uniform color within a state/region. There is a plan for ongoing monitoring of the program and its implementation.

“If dying patients want to retain some control over their dying process they must get out of the hospital they are in, and stay out of the hospital if they are out.”
George Annas, Bioethicist

Teri pointed out that common causes of action for non-implementation of advance directives include medical battery, breach of contract, negligence, lack of informed consent, wrongful life or prolongation of life, and intentional infliction of emotional, physical, and or financial distress.

Additional resources: http://www.ohsu.edu/polst/programs/index.htm
www.dhh.louisiana.gov/…/POLST_Work_Group_on_End_of_Life_Care_aug32006%5B1%5D.ppt

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Posted in Damages, Nursing home | 1 Comment »

The real outcome of patient safety

Monday, April 19th, 2010

Reducing the number of preventable patient injuries in California hospitals from 2001 to 2005 was associated with a corresponding drop in malpractice claims against physicians, according to a study issued by the RAND Corporation.

Researchers studied both medical malpractice claims and adverse events such as post-surgical infections across California counties and found that changes in the frequency of adverse events were strongly correlated with corresponding changes in the volume of medical malpractice claims.

“These findings suggest that putting a greater focus on improving safety performance in health care settings could benefit medical providers as well as patients,” said Michael Greenberg, the study’s lead author and a behavioral scientist with RAND, a nonprofit research organization.

The link between safety performance among health care providers and malpractice suits has been of central interest to policymakers in the ongoing debate over health care reform. The RAND study is the first to demonstrate a link between improving performance on 20 well-established indicators of medical safety outcomes and lower medical malpractice claims.

Researchers analyzed information for approximately 365,000 adverse safety events, such as post-surgical problems and hospital-acquired infections, and for approximately 27,000 malpractice claims, all of which occurred during 2001-2005. The researchers found considerable variation among California’s counties, in both the frequency of adverse events and of malpractice claims.

IME doctor who injures a patient – negligent? Based on a chapter by Marjorie Eskay Auerbach

Wednesday, March 17th, 2010

Many physicians believe because the IME is conducted at the request of a third party, there is no physician-patient relationship, and therefore no potential liability for malpractice. However, several recent court decisions have challenged that interpretation. In 2004, the Michigan Supreme Court found that if the IME’s alleged negligence caused injury to an individual while performing an examination, the physician could be sued for malpractice.

First, do no harm

In Dyer v. Trachman, 470 Mich 45 (2004), the Supreme Court held that an IME physician has a limited physician/patient relationship with the examinee giving rise to limited duties to exercise professional care. This would include the duty to perform the examination in a manner that does not cause physical harm to the examinee. In this particular case, the plaintiff had recently had surgery on his shoulder and advised the physician conducting the exam that his surgeon had placed restrictions on his range of motion. Apparently, the examining physician caused damage to the shoulder repair by performing passive range of motion, necessitating another procedure.

In the case Christine Stanley v. Robert R. McCarver, Jr., M.D., Osborn Nelson & Carr Portable X-Ray, Inc., 204 Ariz. 339, 63 P.3d 1076 (App.2003), Ms. Stanley, a registered nurse, was required to undergo a chest x-ray for employment purposes. Dr. McCarver interpreted the chest x-ray and reported abnormalities that required serial x-rays for further evaluation. He provided that report to Osborn, Nelson & Carr, and they forwarded the information to the employer. Ten months later, Ms. Stanley was diagnosed with lung cancer. She alleged she would have been diagnosed earlier if she had been notified of Dr. McCarver’s report. The trial court granted Dr. McCarver summary judgment because there was no physician-patient relationship with Stanley. However, the Arizona Court of Appeals reversed and found that when an employer has referred a person for an examination, a physician has a duty to exercise reasonable care in conducting the examination, and this duty includes communicating any matter of concern or abnormalities about the examination directly to the person examined. This issue had not been addressed previously in Arizona. The Arizona Supreme Court concluded that the absence of a formal doctor-patient relationship does not necessarily preclude the imposition of a duty of care and affirmed the portion of the Court of Appeals opinion imposing a duty but vacated the remainder of the opinion and remanded the case for further proceedings.

In more recent Arizona litigation, the Court of Appeals found that “a formal doctor patient relationship need not exist for a duty of reasonable care to arise.” Ritchie v. Krasner, 1 CA-CV 08-0099. The court held that when a doctor, in the context of performing an IME at the request of the insurance carrier, reviewed patient records, conducted an exam and rendered a report which was relied upon by the carrier and the worker, he assumed a duty to conform to the legal standard of care for one with his skill, training and knowledge.

The court found this duty to exist even though the doctor showed the examinee a written limited liability agreement, stating specifically that no physician-patient relationship was created in the context of performing an IME. The court found that although the agreement made clear to the worker that there was no doctor/patient relationship, this did not obviate the doctor’s duty of care. Subsequently, some experts have said the appeals court decision represents an expansion of an IME’s legal duties and could have a chilling effect on their participation in certain evaluations.[1] The ramifications of this recent decision have not been fully appreciated.

[1] http://www.ama-assn.org/amednews/2009/08/10/prca0810.htm.

Source: Marjorie Eskay Auerbach, “Independent Medical Examinations” in Iyer and Levin (Editors), Medical Legal Aspects of Medical Records, Second Edition, 2010. Contact us for ordering information,

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Tags: defense medical examination, DME, IME, independent medical examination, insurance medical examination
Posted in Damages, Medical malpractice, Personal injury, Trial lawyer skills | No Comments »

Medical-Legal Topics

Archive for the ‘Damages’ Category

The Dangers of a Concussion by Pat Iyer

Death after being restrained by Pat Iyer

Do You See What I See? by Pat Iyer

Prescription drug overdoses on the rise in U.S.

Common Errors of Pharmacy Technicians – Guest Post by Ashley Jones

Debridement: A Painful Treatment by Pat Iyer

The Pain Score – Modified by Pat Iyer

Do Not Resuscitate Orders- Expanded by Pat Iyer

The real outcome of patient safety

IME doctor who injures a patient – negligent? Based on a chapter by Marjorie Eskay Auerbach

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