Personal injury attorneys now have access to a model that compares pain to other painful events. Pain equilibration consists of equating the strength of the pain medication administered to the plaintiff with the pain medication administered to patients with other painful maladies. For example, the plaintiff’s expert may testify that the plaintiff received medication as strong as if she were giving birth, but she received this medication for weeks, not hours. Thus, the expert can provide the jury with a unit of measure which is neither arbitrary nor dependant on the plaintiff’s subjective report. The expert can equate the strength of the plaintiff’s medication with the medication used for other maladies, such as childbirth or a heart attack, which the jurors may have experienced.

This man slid off a roof and broke both ankles

Depending upon the composition of the jury, a juror may have endured a heart attack or witnessed a relative’s heart attack. Mothers on the jury are likely to have first-hand knowledge of the hours of labor pain. The expert witness may be able to tell those jurors that the plaintiff was administered enough medication to relieve the pain of one hundred heart attacks or four hundred hours of severe labor., this kind of quantitative evidence can authenticate the plaintiff’s pain, first, by providing a common denominator or comparative experience and, second, by providing quantification by association.

A pharmacologist at the Rush University Medical Center (Chicago) and a pioneer in this field, Dr. James O’Donnell, PharmD., explained equilibration in his book, Drug Injury: Liability, Analysis, and Prevention. 2nd Edition. Dr. O’Donnell has consulted in several dozen pain equilibration matters. He analyzes the case according to the various types of pain that have served as models for clinical pharmacology studies designed to test the efficacy and safety of new drugs used to treat pain. In one trial, the defense argued in a motion in limine that equilibration was junk science, but the court denied the motion, and the jury subsequently awarded the plaintiff $1.75 million for conscious pain and suffering.

For comparison with the plaintiff’s pain, Dr. O’Donnell uses the three models of myocardial infarction (i.e., heart attack), severe labor pain of child birth, and the extraction of a molar (Dental Molar Extraction. He uses morphine as the reference analgesic for the relief of pain; he compares all other narcotics to it. (In other words, each narcotic is either more potent than morphine or less potent.) First, he determines the number of milligrams of morphine necessary to relieve the pain of a brief episode (such as a heart attack) or to relieve the pain of a longer episode (such a labor). For instance, two to four milligrams of morphine will relieve the pain of a heart attack, and the same amount conservatively will alleviate two hours of the pain of labor.

Second, he determines the total number of milligrams of every narcotic administered to the plaintiff; third, he converts that figure to milligrams of morphine, and, fourth, he calculates the number of episodes (e.g., heart attacks or hours of labor) which the medications would have controlled. “The objective is to quantify the use of analgesic drugs beyond simply listing the dosages and number of drug administrations.” Less severe pain treated with oral opiates or NSAIDs (non steroidal anti-inflammatories) are ‘equilibrated’ and quantified to the dental molar extraction model.

Contact us if you’d like to get Dr. O’Donnell involved in your case.

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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.

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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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• 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.

See also Reducing Distractions is Reducing Medication Errors

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Surgical debridement of a foot

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.

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Pain over a score of 4 interferes with daily activities.

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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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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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.

Read more at http://tinyurl.com/y5yfqql

Instead of denying compensation to patients who have a legitimate claim – we have to continue to weave tighter safety nets to prevent injury.

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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.

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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The examiner is often expected to answer questions of causation, appropriateness of treatment, need for additional care, and sometimes disability, posed by the requesting party. Other issues that may arise include the presence or absence of pre-existing medical conditions, apportionment of findings, and impairment ratings. These examinations may occur in the context of a work-related injury, disability, or personal injury litigation.

If the examination is performed well, and findings and conclusions are reported in a detailed and unbiased manner, the IME may provide sufficient information to allow for settlement of a particular issue. Alternatively, if the examination is poorly performed, so that the examinee reports that “the doctor spent five minutes with me” or the conclusions are clearly unfounded or obviously biased, the report will provide ample ammunition for opposing counsel to discredit the physician and his or her opinions.

Independent medical examinations have been referred to as Defense Medical Examinations, or DMEs, by plaintiff’s counsel, to highlight the assumption that the physician conducting the examination has a defense bias. Much of the information available on the internet, using the search term “independent medical examination” relates to educating patients about what to expect or discussing the defense bias that is assumed to be present. It is the responsibility of the entity requesting the IME to recognize the reputation of the evaluating physician, and the risk that accompanies hiring a physician with a reputation for bias to conduct the examination. It is, of course, unrealistic to assume that there is no such thing as a work-related accident, or that every motor vehicle crash is disabling, and requesting parties may consider the physician’s “track record” when making a choice.

In the context of litigation, and most frequently in the workers compensation arena, independent medical examinations may be conducted to determine medical “impairment ratings.” These ratings are performed, by definition, only when the patient’s condition has reached maximum medical improvement. The values for impairment ratings are most commonly computed using the AMA Guides to the Evaluation of Permanent Impairment. The ratings are often used in calculations that vary from state-to-state and at a federal level, to determine the financial compensation for a given condition.

IMEs involve critical analysis of all relevant medical and some non-medical information that may affect the ultimate outcome of the medical condition being evaluated. For the attorney or claims adjuster, a detailed report, including a comprehensive history (obtained from the examinee) and medical record review, will reflect the examining physician’s efforts to obtain data related to the examinee’s altered condition and the events leading up to it.

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

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