Medical malpractice « Medical-Legal Topics

Posts Tagged ‘Medical malpractice’

What’s a medical error? Part 1 by Pat Iyer

Tuesday, July 27th, 2010

I was talking to my son and his girlfriend about medical errors and he asked me to define them. Here are some cases we have handled.

* the hospitalized patient who was alert, oriented, and ambulatory until the nurse administered an inappropriate dose of Morphine, resulting in a serious overdose;
* the emergency department patient who developed quadriplegia after the nurse removed the cervical collar without an order and without the spine being cleared;
* the unsupervised nursing home resident on a pureed diet who choked on deli meat he grabbed off another resident’s tray;
* the newborn infant delivered by vacuum extraction who experienced signs of respiratory distress that went unnoticed by the nursery staff until the infant experienced a respiratory arrest and expired due to complications from a brain hemorrhage;
* the critical care sitter who sexually assaulted a patient;
* the intubated patient who pulled out his endotracheal tube because the nurse did not restrain his hands and he could not be re-intubated:
* the paraplegic receiving supplemental nutrition via a nasogastric feeding tube who experienced an aspiration event and died because the RN programmed the feeding pump incorrectly, resulting in the infusion of an excessive amount of feeding over a short period of time;
* the unsupervised emergency department psychiatric patient who jumped off the roof of the hospital while waiting to be admitted to a psychiatric unit
* the medical surgical patient who rolled off the bed while the sheets were being changed because the nurse did not put the side rail up;
* the surgical patient who developed compartment syndrome and nerve damage because the surgery shredded the popliteal artery in his knee and the nurses did not perform neurovascular checks

What are these?

Tags: medical errors, Medical malpractice, nursing error, Nursing malpractice, nursing negligence
Posted in Legal nurse consulting, Medical malpractice, Nursing malpractice, medical errors | No Comments »

What’s a medical error? Part 2 by Pat Iyer

Monday, July 26th, 2010

I was talking to my son and his girlfriend about medical errors and he asked me to define them. Here are some more cases we have handled.

* the oncology patient who suffered from a large extravasation of a chemotherapeutic drug;
* the patient who fell off the operating room table because the nurse did not apply safety straps;
* the patient whose swollen leg was not reported to the physician on the day of discharge, and who died of a pulmonary embolism shortly after discharge
* the man who jumped through a window because the nurse did not recognize the need to start one to one supervision
* the surgical patient diagnosed with a retained sponge despite the “correct” sponge count;
* the nursing home patient scalded in a bathtub;
* the psychiatric patient who had a history of suicidal ideation and attempts, who was unmonitored, left the hospital, and hung himself in the nearby woods;
* the pediatric patient who went into respiratory distress and whose home care nurse asked his father to come home instead of following directions to call 911;
* the nursing home patient who fractured two hips after being dropped out of a hydraulic lift by a nursing assistant, who did not report the incident;
* the postoperative woman who experienced intra-abdominal hemorrhage and subsequent shock that went undetected by the Post Anesthesia Care Unit nurse.
* untold numbers of pressure sore cases

What are these?

Tags: medical errors, Medical malpractice, nursing errors, Nursing malpractice
Posted in Legal nurse consulting, Medication errors, Nursing malpractice, medical errors | No Comments »

Generations and Medical Malpractice Part Two

Wednesday, June 30th, 2010

There are four generations of people employed in health care. Consider how each reacts to situations that put patients at risk for medical errors and medical malpractice. These guidelines are generalities and may not apply to a particular person.

3. Gen X
Gen Xers were born between 1965 and 1978. The Watergate debacle, which revealed the extent of dirty politics, was an influence on this generation. Women’s liberation affected traditional household roles and saw the rise of strong feminists. The gas crisis in 1973 resulted in a sudden feeling of vulnerability. The Gen Xers were the first generation of children affected by both parents working. They were exposed to massive corporate layoff, leading them to value self reliance. Quality of life and balancing work and home life affects this generation. They may be less likely to accept working long hours and schedule changes as they are driven by a need for life and work balances. They saw an increase in divorce rates. This is the impatient generation. They are in a hurry, and want quick promotions and for work to be fun and informal. The Gen Xer tends to be more productive, producing more work in less time. They often prefer to work alone and may distrust and challenge authorities. This may influence their ability to work as part of a team and affect the need to communicate with others.

4. Gen Y or Millennials
The Gen Y population was born between 1981 and 2000. This is the generation that is drawn towards the family for safety and security. They are a global generation who accept multiculturalism and multitasking as a way of life. The Gen Ys are savvy about technology and instant communication. They are highly creative and well educated, confident, hopeful and goal-oriented. They enjoy teamwork. They are a digital generation that is globally concerned. They expect 24-hour a day information. They have difficulty dealing with complex problems and are inexperienced within the medical world. They benefit from mentoring and structure. This is a group who has a high need for feedback and structure. Data shows that 30 percent of Gen Y nurses turnover in the first year of practice and 57 percent by the second year. They have been taught to question each situation to find meaning in every task.

The Veterans may be reluctant to challenge authority, which may be necessary when the healthcare provider needs to be a patient advocate. The Baby Boomers, Gen Xers and Gen Yers have been taught to speak up. Gen X and Gen Y healthcare providers get frustrated with older people who resist technology. All generations want to be respected, valued, and rewarded for their efforts. Healthcare workers do best when they recognize there may be generational differences, and welcome the diversity.

What are these?

Tags: Gen X, Gen Y, generations of workers, Medical malpractice, Millennials
Posted in Communication skills, Medical malpractice, Nursing malpractice, medical errors | No Comments »

Generations and Medical Malpractice Part One

Monday, June 28th, 2010

1. Veterans or Traditionalists
This generation has born between 1927 and 1946. They have specific values such as “remember the lessons of history”. They have loyalty to the organization. The Veterans worked to get their retirement. They have a nose to the grindstone work ethic. They are the keepers of the institutional memory. They tend to be patriotic, polite, and fiscally conservative. They have a high work ethic and are the senior employees and physicians, eyeing retirement and considering slowing down trial practice. Many of them are influenced by a military model as they grew up in World War II. They understand and follow a chain of command.

2. Baby boomers
Born between 1946 and 1964, Baby Boomers are the largest group. They were influenced by several events in the tumultuous world of the 60s including the civil rights movement. The Baby Boomers have a strong work ethic. They are workaholics and loyal to the organization. They will stay until the work is done. They are highly competitive, question authority, and invented the type A personality. They have an overwhelming need to succeed. The Baby Boomer believes in team work and consensus building. They are optimistic. Baby Boomers are often found in management positions. The Baby Boomer is uncomfortable with conflict and reluctant to go against peers. It is hard for them to ask for help; they have difficulty admitting something is wrong. This may influence their behavior when caught up in a situation that could lead to patient injury.

What are these?

Tags: baby boomers, generations of workers, Medical malpractice, traditionalists, Veterans
Posted in Communication skills, Medical malpractice, Nursing malpractice, 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 »

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.

Why inexperienced people make mistakes

Tuesday, January 26th, 2010

A group of residents eagerly perform complex surgery in the middle of the night while the attending surgeons who are supposed to supervise them are happily sleeping at home. Why is this very real scenario a bad idea? Why do interns, residents, nurses, and others make errors that injure patients? The answer lies in learning theory.

The Dreyfus Model of Skill Acquisition used by Pat Benner, a nursing theorist, breaks knowledge into two components: “techne” and “phronesis”. Techne knowledge is book knowledge: the information that is captured from procedural or scientific knowledge. The student must be given safe and clear directions on how to proceed, as there is no previous experience on which to draw. For example, a student nurse I supervised discovered her patient was short of breath. She attributed the symptom to anxiety, talked to the patient about her concerns, and held her hand. A more experienced person would have applied oxygen.

The second kind of knowledge is phronesis, which is acquired through learning in the practice setting. A nurse who makes a series of rapid decisions during an emergency draws on phronesis. The rapid response team members in hospitals are made up of experts who use this kind of knowledge.

The evolution of the expert practitioner passes through stages

Benner’s model of expertise, which is based on the Dreyfus model, describes how an individual may pass through five stages in developing expertise. Not everyone reaches the proficient or expert stage.

The novice rigidly adheres to rules or plans, has little situational perception and can’t make judgments. This individual is learning skills in clinical settings and must be closely supervised when delivering patient care.

The advanced beginner is a new graduate. The person functions with limited situational perception (the ability to put clues together to make decisions) and has difficulty discriminating between what is important.

The competent practitioner can see his or her actions within a broader context, and is capable of making sounder judgments. Conscious deliberate planning takes place along with standardized and routine procedures.

The proficient individual sees the situation holistically rather than in terms of its component parts. This individual more readily makes decisions, perceives differences from the normal pattern of a patient, and functions better with ambiguity. The proficient person has learned from experience and has an easier time making decisions.

The expert practitioner no longer relies on rules, guidelines or maxims, and intuitively grasps what is important in a situation. A registered nurse with expert knowledge may well exceed the knowledge of inexperienced physicians and may save a patient’s life by insisting on evaluation, diagnostic testing, change in medication, or another needed course.

A clinically experienced person enters a new healthcare setting as a new employee without knowledge of the politics, procedures, and policies. It takes time to learn “how we do it here.”

And thus we face the dilemma in health care: an inexperienced person will not learn without the opportunity to do so. He or she has to start somewhere. Yet, we don’t want that person to learn on us, our mother or father or child. When my husband had a triple bypass three months ago, the cardiac surgeon at Johns Hopkins proactively told us that he performed surgery. He said he had people in the operating room helping him, but he did the surgery. We were relieved to hear that.

A fair number of medical or nursing malpractice cases that come into Med League involve errors made by inexperienced people, whether they are new employees or new healthcare practitioners. Here are my suggestions:

Attorneys handling medical or nursing malpractice cases should be careful to determine the level of experience of the defendant. Determine the degree of supervision that should have been provided versus what was actually provided.
Ask about the orientation program the new employee should have received. Determine how much orientation staff agency employees received.
Ask the defendant if he or she sought help. Some of us, whether because of age, culture, or personality, would rather try to solve problems without help. This can be a recipe for disaster.
If you or a loved one needs care, seek the most experienced practitioner or hospital you can find.
If you or a loved one detects the person assigned to your care seems unfamiliar with your needs or medical equipment, insist that individual seek help from a more experienced person. Be an advocate for safety.
If you or a loved one needs surgery in a teaching hospital, insist that the attending physician be present. You may even cross off the consent form that allows residents and interns to perform parts of the surgery.

What do you think? How should inexperienced people learn? Send us a comment.

Parts of this blog post came from Moniaree Parker Jones, “Nursing Expertise: A Look at Theory and the LNCC certification Exam”, Journal of Legal Nurse Consulting, Spring 2007. Other parts came from the School of Hard Knocks.

What are these?

Tags: making mistakes, medical errors, Medical malpractice, personal effectiveness
Posted in Healthcare Risk Management, Legal nurse consulting, Medical malpractice, Nursing malpractice, Patient safety, medical errors | No Comments »

Obtaining Diagnostic Imaging for a Potential Medical Malpractice Claim based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 30th, 2009

Films are crucial in failure to diagnose cases

The liability of a failure to diagnose or delay in diagnosis case often rests on the information revealed by a diagnostic test. Both defense and plaintiff attorneys and their experts will be interested in what the test showed. Computerized axial tomography (CT) scans and magnetic resonance imaging (MRI) are usually stored in digital form. Obtaining those scans on a CD-ROM disk provides significant flexibility, especially when more than one expert will be reviewing the images. Plain radiographs (x-ray films) are becoming more commonly available in digital form. Where diagnostic images can be obtained on disk, they should be. It is more efficient to copy and mail a CD-ROM than to package and send large and ungainly packages of films, much less to send those films from one expert to another. Such files are usually provided with an integrated viewing program, such as those based on the Digital Imaging and Communications in Medicine (DICOM [TM]) standard. If not, a number of viewers are available as “freeware” for download from the internet.

Mammograms are most often available only on film, and copies are usually not suitable for expert review due to degradation in image quality. Original mammogram films should be obtained early in the evaluation and handled carefully, as they are often key to claims of delayed diagnosis of breast cancer.

Obtaining diagnostic fetal ultrasound images may present a challenge. Copies are not likely to be of suitable quality for expert review, and providers will sometimes vigorously resist attempts to obtain the original paper images, including opposing motions for pretrial discovery to require their production. It is sometimes possible to obtain digital copies of the original images. Although this can be costly, it is probably less so than engaging in extended motion practice, or paying an expert to go to the potential defendant’s facility to examine the original documents. Cases have been won and lost on the quality and interpretation of diagnostic tests. Be sure to make every effort to safeguard original films. Experts must be instructed on methods of returning films to the appropriate location. Sadly, cases have been won and lost on misplaced films.

Modified from Peter Berge, JD, MPA, PA “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, March 2010. Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

What are these?

Tags: diagnostic imaging, diagnostic tests, failure to diagnose, Medical malpractice, Medical records
Posted in Expert witness, Medical malpractice, Medical records, Trial lawyer skills, medical errors | No Comments »

Reviewing Medical Records in a Potential Medical Malpractice Claim by Peter Berge Esq.

Wednesday, December 2nd, 2009

Analysis of medical records should be done by a knowledgeable person

Once medical records are in hand, someone has to review them. Who should review them, and in what sequence, depends on numerous factors. In the case of a plaintiff’s attorney, if the attorney has a solid knowledge of the medical issues involved in the case, and particularly when the records are not voluminous, it may make sense for the attorney to initially assess the records. If the attorney has managed several similar claims and is well-versed in the subject matter, the initial evaluation may be all that is needed to determine whether to send the records directly to a testifying expert. Defense counsel or risk management personnel presented with a claim would be well-served by familiarizing themselves with the records prior to sending them out to an expert or consultant.

Even when an attorney has in-depth knowledge of the medical and legal issues involved in a claim, the volume of the records in relation to the attorney’s work load may dictate that a legal nurse consultant (LNC) conduct an initial review, organize the records, create a time line and summarize the issues. Likewise, if the attorney is not very knowledgeable about the medicine involved, it is helpful to have an LNC review the material, perform any medical research needed, and provide a report and recommendation to the attorney. Aside from saving the attorney numerous hours in review and research, this approach has the benefit of readying the records for review by a medical expert. With the records already organized and summarized, the expert or experts may be able to review the material more efficiently, providing some savings to the attorney and client.

Modified from Peter Berge, “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, in press.

The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2 E.”

Read more about Med League’s services in medical record analysis.

What are these?

Tags: analysis of medical records, Medical malpractice, Medical records
Posted in Legal nurse consulting, Medical malpractice, Medical records, Nursing malpractice, Trial lawyer skills, medical errors | No Comments »

Why risk tampering with medical records? By Pat Iyer

Wednesday, November 4th, 2009

Altering medical records has huge consequences

A physician gets a notice that he is being sued. He gives into the temptation to review his office records. He decides to change an entry to 1. More completely describe events 2. Make it look as if he did something that he did not. But it is way too late. The plaintiff attorney and her legal nurse consultant already have the record and spot the change when they receive a second set of medical records. A charge of spoliation of evidence is added to the suit.

What is the impact on the person who tampers with medical records?

1. Insurance coverage
A medical malpractice claim that includes an allegation of alteration of records may not be covered by a commercial professional or individual’s liability policy. The insurer may reserve its rights to not pay any judgment that might be entered against the provider. Institutional providers participating in self-insured trusts may have similar coverage limitations. Some states recognize a separate cause of action for alteration of medical records, whereas other states deal with it as a jury charge. If the provider admits that he or she has made the alteration, the policy may be completely voided, including coverage for the medical negligence, depending on the state law. An individual who has his or her own insurance policy may find the carrier refusing to renew the policy the following year after the insured was found to have altered records or on whose behalf a settlement was paid in a case involving alleged alterations.

2. Regulatory agencies and privileges
Some state regulatory or licensing boards may investigate the healthcare provider. Disciplinary action may follow. The healthcare system that has provided privileges to the healthcare provider may be reluctant to allow that individual to continue on the staff. Those who falsify medical records risk more than just the loss of a malpractice case. Medical boards have been known to suspend or revoke the licenses of healthcare professionals caught tampering with records. In January 2009, a physician in London lost his license to practice for a year after a disciplinary inquiry showed that he engaged in a sexual relationship with a patient, tampered with and or improperly caused inaccurate changes to be made in her records, and failed to keep accurate records. He also failed to record details of her visits, medical condition, and results of medical examinations, and failed to maintain patient confidentiality by improperly disclosing to his lover confidential information related to the care of two patients.

3. Shame and embarrassment
Loss of reputation, shame, guilt, and being exposed as a wrong doer can all have a profound impact on the individual who altered medical records. A British physician hid her error for 16 years before confessing. When she was 26-years-old and working as a junior physician, she made a medication error that resulted in the patient’s death within an hour. She changed her chart entry to make it appear she had prescribed a smaller dose of the medication than had been ordered. She was questioned by police and later gave evidence at an inquest but did not tell anyone what she had done. In 2001, she could not live with her guilt any longer and wrote a letter to the patient’s family confessing her mistake. After an investigation and a formal written warning, the General Medical Council decided to allow her to continue practicing.

4. Criminal/civil offenses
In many states, falsification of medical records is also a criminal offense punishable by fines and incarceration, see e.g., California Penal Code §471.5. The Healthcare Insurance Portability and Accountability Act was used to put a Pennsylvania nurse in prison who altered nursing home records.

Most healthcare providers who tamper with medical records have a mistaken belief that their actions cannot be detected. The guilt or fear of being found negligent swamps their good judgment.

Med League assists attorneys who suspect tampering with medical records by performing chronologies and timelines that identify discrepancies. Please note that our ethical codes prohibit us from working with people who have not yet retained an attorney.

What are these?

Tags: altered medical records, Medical malpractice, spoliation of evidence, tampering with medical records
Posted in Healthcare Risk Management, Legal nurse consulting, Medical malpractice, Medical records | No Comments »

Medical-Legal Topics

Posts Tagged ‘Medical malpractice’

What’s a medical error? Part 1 by Pat Iyer

What’s a medical error? Part 2 by Pat Iyer

Generations and Medical Malpractice Part Two

Generations and Medical Malpractice Part One

Do You See What I See? by Pat Iyer

The real outcome of patient safety

Why inexperienced people make mistakes

Obtaining Diagnostic Imaging for a Potential Medical Malpractice Claim based on a chapter by Peter Berge JD, MPA, PA

Reviewing Medical Records in a Potential Medical Malpractice Claim by Peter Berge Esq.

Why risk tampering with medical records? By Pat Iyer

Pages

Archives

Categories