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Trauma 1 v. Trauma 2 Hospitals, What's the Difference to A Person Hurt In An Accident?

John Cooper — Tue, 29 Sep 2009 10:32:15 GMT

A trauma center is hospital capable of rendering medical care to patients suffering traumatic injuries. Yet, there are several different levels. A trauma center can be either a level one, two, three, or four. In order to qualify as a trauma center, a hospital is required to meet criteria set forth by the American College of Surgeons. There are a few factors that determine what level a center is classified as. These factors include the type of resources available at the particular center, as well as the amount of patients admitted annually. Each level classification must adhere to certain national standards.

A level one trauma hospital maintains a wide range of specialists and equipment, which are available 24-hours a day. These centers must also meet annual volume requirements for admitting severely injured persons. One criterion that places a level one center above others is that the center must have a program of research and be a leader in the field of trauma education/injury prevention.

A level two hospital works collaboratively with a level one hospital. This center provides care which supplements the medical expertise of the level one center. A level two center provides 24-hour services. However, the services only include the essential specialties, personnel, and equipment. Unlike level one centers, the minimum volume requirements for level two centers are dependent upon local conditions. Also, level two centers are not required to maintain a research or surgical residency program.

A level three trauma hospital maintains the basics. While they do not have the same amount of specialists as a level one or two, they are capable of meeting the needs for most trauma patients, including emergency resuscitation, surgery, and intensive care. These types of centers have a transfer agreement with either a level one or level two center so that back-up care may be provided in extreme situations.

A level four hospital provides essential care, such as stabilizations and treatment, where no alternatives exist. These centers are often located in remote areas. It’s important to understand the differences among trauma hospital classifications.

Even though all levels are capable of stabilizing patients, specialty care may only be available at certain hospitals and thus, may require you to transfer. Consider the following:

Sentara Virginia Beach General Hospital: Level Two trauma center
Sentara Norfolk General Hospital: Level One trauma center
Pitt County Memorial Hospital in Greenville, NC: Level One trauma center

As attorneys specializing in accident cases, our most seriously injured clients are often inpatients at one of these three facilities. People in car wrecks in South Hampton Roads and the Outer Banks are most likely to be treated at these Sentara centers. Pitt Memorial serves as the main trauma center for much of North-East North Carolina.

Level Four:

Level Three:

Level Two:

Level One:

Originally posted at InjuryBoard by John Cooper

Surgical Sponges/Towels Left Inside The Patient's Body: RFID Technology To Prevent Medical Malpractice, Improve Patient Safety

Rick Shapiro — Sat, 13 Jun 2009 19:48:00 GMT

Surgical Sponges/Towels Left Inside The Patient Body: RFID Technology To Prevent Medical Malpractice, Improve Patient Safety

[Editor’s Note: For earlier related injury prevention/medical malpractice articles relating to surgery sponges left in a patient’s body:

Retained surgical sponges: a known medical error

One More Reason Surgical Sponges/Towels Left Inside Patients Create Obvious Liability For Hospitals and Surgeons: Sponge Count Technology Can Reduce These “Never Events” ]

Update on Injury Prevention/Medical Malpractice Prevention in Hospital Operations:

I have written a series of articles focusing on simple methods of preventing injuries/medical malpractice in the hospital operating room setting, involving surgical sponges/towels left inside a patient's body. The medical field calls this “retained sponge” situations, but patients suffering this malpractice just find out that they have a major infection and need to have a second surgery-and they usually retain an injury lawyer like a member of my Virginia Beach, Virginia (VA) injury law firm.

These types of medical errors should never happen, and do not involve any “complication” of surgery. They are simple administrative matters (“mistakes”) that can be prevented and reduced and nearly eliminated, especially with the advent of new computer aided technologies.

A few weeks ago I wrote about a company that has invented a simple method of placing a bar code on each surgical sponge, and provides a barcode reader wand. The company SurgiCount has its products in a number of hospitals, and reports terrific success in reducing the number of lost surgical sponges that can cause an infection in the patient, which exposes the hospital or surgeon to medical malpractice liability. And that liability is not speculative--it is generally clear liability to the patient. Accordingly, the focus of my articles is to beam the spotlight on hospitals which can no longer rationalize failing to use these new technologies to reduce medical malpractice claims. The return on investment (in reducing medical negligence claims) is simply obvious. Even if every dime is not recouped in the hospital procedure, the ROI in eliminating medical malpractice infection or death claims makes the equation simple. Since my last article I received e-mail from other representatives of companies with technologies that can also reduce the number of patients who have surgical sponges or surgical towels left inside their body by accident.

Another company is using radio frequency identification (RFID) methods on surgical towels or sponges-- yes, the same technology that is being placed on some consumer products along with bar codes. RFID technology allows for tracking of a product a little bit like a global positioning system, but on a much more simple basis because it is not being tracked by satellites but can be located by a nearby computer wand in a hospital setting.

A medical doctor, Jeffrey Port, received US patent protection, and FDA approval, for applying RFID technology to a surgical sponge or surgery towel, and the company argues that its technology is better than bar code readers on surgical sponges for the simple reason that the barcode reader can tell the staff if one surgical sponge is missing but there is no way to absolutely confirm that the surgical sponge was in fact sewn up inside the patient's body. The RF Surgical Systems representatives argue that the advantage of the RFID technology is that the staff can simply run a wand over the patient's body and confirm that in fact a towel or sponge is located in the cavity of the patient eliminating any frantic search or lingering question, before the patient’s surgery is over.

Because I am an inquisitive United States inventor myself, I am intrigued at how easily hospitals can avoid medical malpractice and liability for these errors, so my intention is to publicize how inexpensive and easily most of these medical malpractice claims can be avoided. I like to say that I may be the only prolific U.S. inventor/designer who is also a personal injury/faulty product lawyer for victims.

RF Surgical Systems is headquartered in Bellevue, Washington and was founded by Dr. Jeffrey Port, a thoracic surgeon, and Mr. William Blair, an electrical engineer, and the company’s website is www.rfsurg.com . Its RFID products are being distributed by Medline headquartered in Mundelein, IL, which also distributes more than 100,000 products to hospitals, and surgery centers. RF Surgical Systems has successfully convinced 60 hospitals in various parts of the United States to implement its RFID systems in order to reduce medical errors/medical malpractice. So how does it work?

The RF surgical system uses a wand detection system that incorporates three components to eliminate the retained sponge: 1) a 4mm X 12mm hybrid RF chip/tag that is sewn/incorporated into all forms of sponges/gauze/towels and eventually will be applied to surgical instruments, 2) the second component is a 14 inch wand that is waved over the patient after a surgical procedure. The wand is married to the RF tag and has a range of 16-24 inches through blood, tissue, and bone; and 3) the final component is a small console that emits an audio/visual tone/signal to alert the surgeon that there is a sponge in the patient.

The best part of the RF system is that it can wand the table, floor, trash, etc in the operating room as well. This is particularly advantageous if there is an “incorrect count”. The RF system is designed to allow the doctor/surgeon to have the rapid ability to find the sponge/towel either inside the patient or wherever it may be in the surgical setting.

Dr. Jeffrey Port, the surgeon who invented and obtained patent protection on the system, states: “Surgical sponge miscounts have been a recurrent and troubling issue in the operating room. Sponge miscounts most frequently occur in long, complex open cavity surgeries in patients with significant blood loss or in high BMI patients. These cases are further complicated when they involve a change in nursing staff or surgical teams.” He goes on to note, “As a surgeon ready to start closing procedures, it is critical to know: “Is there a sponge left in my patient?” And, if there is a sponge count discrepancy, the question then becomes: “Where is the missing sponge?” In answering these questions, I did not want to subject my patients to additional anesthesia while the OR was searched to locate the missing sponge or to wait for an x-ray to be ordered, taken and read to determine if a sponge was indeed left inside the patient."

According to an article by Milan Korcok, (Canadian Medical Ass’n, 2009) hospitals in the US have increased their spending by more than 200% since 2005 on electronic tracking systems that can locate wandering patients and misplaced equipment, detect errant blood transfusions and prevent medication errors, as well as sound alarms when surgical sponges are left in wrong places, like inside patients.

Korcok notes that Spyglass Consulting Group, which tracks information technologies, says that 76% of US hospitals with more than 300 beds have invested in radio frequency identification, and he adds: “Unlike their bar code precursors, which require line-of-sight scanning and individual handling, radio frequency identification readers can identify hundreds of tagged objects at a time, even if piled in unruly stacks, covered by surgical sheets or hidden in crumpled bedclothes. Their use has even been recommended to store medical information under the skin of patients.”

Korcok touched on “privacy concerns” with RFID, but as for surgical sponges, such devices should never be actually inside a patient so it is hard to really understand where the privacy issue concern would come into play. On the other hand, and of more concern, is the question of whether the frequency necessities of these devices could interfere with other vital medical devices such as pacemakers or ventilators.

I posed a few questions to Greg Allen, a representative of RF Surgical Systems, touching on some of the cutting edge RF issues that were on my mind:

Shapiro: One recent study indicated that, in test settings, radio waves from radio frequency identification devices sometimes switched off ventilators, stopped syringe pumps and caused external pacemakers and dialysis machines to malfunction. How have you addressed these concerns at your company?

Allen: In the JAMA article the majority of interference occurred at high (er) frequencies with active RF technology. The decision by our company to go with a hybrid technology between radar and RF was also an economic decision. We can manufacture our unique patented technology for that has proprietary filtering that has allowed us to experience no false positives with other operating room equipment. We have no reports of any interference with life saving equipment such as dialysis machines; however, in our product training materials we address the fact that during scanning, a temporary pacemaker should be turned to the VOO/DOO mode. (this is an asynchronous mode that eliminates any propensity for inhibition of the temporary device).

Shapiro: Compare your costs per open cavity surgery, per annum, at a typical hospital vs. bar code embedded systems. Why pay more for RF?

Allen: My information shows that the Surgicount Bar Code is the least expensive (around $12-$14 per procedure) and our RF Surgical is slightly more expensive (in the $15 per procedure range) We have lowered the cost with our multi usage 24 hour wand. (our initial FDA submission was a onetime use $50 wand--now we average 3 patients per wand). The RF System finds the lost sponge, regardless of where it is. We scan the patient first, then the table, floor, and the trash cans. The RF System allows you to find the elusive sponge. A bar code counting system only counts, and remember that 88% of all retained sponge cases result in a reported correct count.

Shapiro: Explain why patient privacy concerns are unfounded (I assume the RFID embedded device is never intended to leave the hospital room at all (if inside the body, the surgeon gets it out...) Please comment as to these “privacy” concerns as to RFID devices.

Allen: The actual RF chip is integrated in the individual sponge; therefore, if there is no retained sponge in the patient, (our primary business mission) a sponge/tag/chip would never leave the OR where the surgery was performed. All RF tagged products are disposed of after usage. The RF Surgical System has no data portion to the technology; therefore, no information is transferred.

Shapiro: Thank you for taking the time to answer these questions!

My take: RF technology is certainly one wave of the technological future of the hospital operating room, and importantly is an easy method to prevent "never events" involving lost sponges or surgical towel medical malpratice, and certainly is going to be rolled out to surgical instruments and tools that could break off inside a patient's body (question: what part of the instrument do you put the RFID on?). Also, simple bar code systems that can back up the manual count of a nurse in an operating setting are also good, automated methods that will help avoid hospital errors and medical malpractice as well. The easier the solution, the more obvious the surgeon or hospital liability for careless acts!

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard as a pro bono service to consumers. Lawyers licensed in: VA, NC, SC, WV, DC, KY, who handle car, truck, railroad, and medical negligence cases and more.

RNS

Originally posted at InjuryBoard by Rick Shapiro

One More Reason Surgical Sponges/Towels Left Inside Patients Create Obvious Liability For Hospitals and Surgeons: Sponge Count Technology Can Reduce These “Never Events”

Rick Shapiro — Thu, 28 May 2009 09:51:43 GMT

Any surgical towels, sponges or medical devices left inside a patient causing infection, septic shock or even death is a good cause for concern at hospitals and surgical centers in Virginia (VA), North Carolina (NC) and nationwide. These are “never events.” It should never occur with proper procedures. According to Science Daily, an estimated 1500 surgical objects such as sponges, towels and medical tools are sewn up inside patient bodies each year. Any good hospital risk management program realizes that a surgical towel, surgical sponge, or surgical device, sewn up inside a patient is a "never event." Our law firm injury lawyers have previously published several articles covering the medical malpractice issue of surgical sponges/devices left in patients:

Retained Surgical Sponge and Subsequent Complications

A known medical error

Surgical Safety Checklist Reduces Personal Injuries That Occur During Operations

So, if a company comes along with a method to significantly reduce the chances that a surgical sponge, surgical towel or surgical device will be left inside a patient's body, any conscientious hospital should pay attention. As Virginia/Carolina medical malpractice lawyers, we know that the more simple the preventive remedy, the more likely a jury will find that a hospital or doctor was careless, especially in sponge/towel cases simply left inside a patient’s body leading to infection, increased medical expenses/care or even death. The cause is virtually always human error, where the nurses and doctors lose proper count of the sponge/towel count or fail to properly account for a medical tool. Sometimes, a medical tool breaks and is left inside the body, which may be a different cause, but the outcome can be devestating injuries.

A company called Surgicount Medical has introduced surgical towels embedded with a bar code, and an associated bar code wand, which can be mounted to a movable rack, and the system counts in and counts out the surgical sponges. This system has now been introduced at the Mayo Clinic, and the hospital is reporting that the computerized count system is definitely reducing these “never events” with little additional time or effort of the medical personnel.

Surgicount notes that studies show 88% of cases with retained foreign bodies involved a final count that was erroneously thought to be correct. The root cause of retained cases is usually not an inability to find a lost sponge, but not knowing that a sponge needed to be searched for. Surgicount’s system has three parts:

A comprehensive line of uniquely identifiable surgical sponges and towels (Safety-Sponges)
Touch-screen scanning devices (SurgiCounters)
A networked database application (Citadel) that allows for the complete review, management and analysis of the count reports generated

Essentially, the staff still keep notes of a manual count in and count out, but the bar code system serves as the double check-and a more reliable one at that.

“In about one in 5,000 operations there is some type of retained object," said Dr. Robert Cima with the Mayo Clinic Quality in Surgery Department. According to a news report, Cima said when they investigated cases of a sponge being left behind in a Mayo procedure; they found that 70 percent of the time the count was recorded as right. Apparently they had hit what he calls the "human performance barrier." "We just couldn't get any better without something new," he added. Mayo added the Surgicount system at its hospital, and the system keeps track of who did the scanning and patient IDs. It records a master tag for each bundle of sponges as they are put into service and accounts for each used sponge before they are discarded, reducing the chance of leaving any behind. "It won't let me double count a sponge," according to Mayo Surgical Nurse and safety team member Jack Clark. "The machine never gets tired, never gets distracted and it's there to reinforce our counting techniques," he said.

Caprice Greenberg, M.D. and Atul Gawande, M.D., of Brigham and Women's Hospital in Boston published their “The Frequency and Significance of Discrepancies in the Surgical Count” study in the Annals of Surgery (News Brief On Study). In their investigation of 148 incidents of retained sponges and tools/devices left in patients, the authors uncovered a total of 29 discrepancies involving sponges, which equated to 45 percent. The majority of discrepancies denoted a misplaced tool/device (59 percent) as opposed to a miscount (3 percent) or error in documentation (38 percent). When an tool/device was misplaced, each unique search took an average of 13 minutes to resolve the missing item. The authors concluded that 1 in 8 such surgical cases involves a discrepancy in the count, and that the majority of such problem or discrepancies detect unaccounted-for sponges and other device/tools.

The Surgicount system has now been implemented at several Veteran’s Administration Hospitals, as well as a number of other privately operated hospitals, according to Surgicount Medical’s website.

The point for medical patient safety and prevention of medical malpractice is this: hospitals and clincs doing surgeries should be adopting any and all simple steps and remedies to reduce easily preventable “never events,” or the American system of tort law will impose monetary liability on a careless hospital and its staff, its that simple. Under our system of civil justice, the injured patient (or the family of the patient suffering a wrongful death) does not extract vengeance with an eye for an eye from the hospital—we have long since adopted a system of compensation to victims who must prove-in a court of law—that a hospital/surgeon/nursing staff was careless or negligent in order to recover anything as compensation. Medical malpractice cases involving surgical sponges/towels left inside a patient’s body usually seem preventable on their face, but this available technology is one more reason hospital liability in these type cases will be overwhelming.

Originally posted at InjuryBoard by Rick Shapiro

Hospital sanctioned for serious surgical errors

John Cooper — Wed, 11 Nov 2009 17:40:26 GMT

A Rhode Island hospital is expected to pay $150,000 in fines after a surgeon operated on the wrong part of the body – not for the first time.

Rhode Island Hospital in Providence is the only hospital in the state to receive such fines, The Associated Press reported recently.

Surgeons were to have operated on two fingers belonging to the same patient, The AP reported. Instead, “both operations were performed on the same finger.”

The hospital was directed to install surveillance cameras in all of its operating rooms by David Gifford, Rhode Island’s health director.

The move after a pattern of conduct emerged at Rhode Island Hospital, the teaching hospital for Brown University’s Alpert Medical Center. In 2007, three patients had brain operations – but surgeons operated on the wrong part of the brain.

The hospital’s chief executive officer, Timothy Babineau, said in a statement that “the hospital was committed to reducing medical errors and had been taking steps to improve patient safety.”

According to the AP, standard surgical procedures were not followed – the finger to be operated on was not marked ahead of time, and surgeons did not stop to double-check that they were operating in the right place.

“Under protocols adopted in the medical field, the surgery site should have been marked and the surgical team should have taken a timeout before cutting to ensure they were operating on the right patient, the right part of the patient's body and doing the correct procedure, the AP said.

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono service to consumers.

(MM)

Originally posted at InjuryBoard by John Cooper

Spinal Surgeon/Doctor Wins Virginia Medical Malpractice Lawsuit Against His Spinal Surgeon-Who Botched Surgery

Rick Shapiro — Thu, 07 Aug 2008 09:24:29 GMT

What happens when a spinal surgeon requires spinal surgery himself, and the spinal surgery is botched by the Virginia spinal specialist/physician he selected, leaving the injured surgeon with chronic pain syndrome? What happens is he retains a personal injury lawyer and a Virginia medical malpractice lawsuit arises and the spinal surgeon with serious spinal injuries casts aside every anti-tort, anti-medical malpractice argument he may have favored before the day he was permanently harmed! Ultimately, the Richmond State court Judge, in Garver v. Mathews, CL No. 07-206, ruled that defendant, Doctor Mathews violated medical standards, and awarded Dr. Garver $650,000.00 in damages, as explained below.

Dr. Eric Garver, a spinal surgeon/physician from Connecticut, traveled to Richmond, Virginia in 2005 and underwent surgery by Dr. Mathews, a spinal surgery specialist then based in the Richmond area who was the principal investigator for the Maverick ™ device and helped pioneer a spinal surgical procedure involving inserting the Maverick brand medical device in the spine—the device simulates the natural way vertebral discs move despite removal of the spinal disc between the bones of the spine, in contrast to traditional spinal fusion surgery, which often removes the jelly-like spinal disc, and “fuses” together spinal bone, reducing overall spinal mobility. The marketing angle of the Maverick brand device is that it largely preserves spinal mobility, whereas spinal fusion does not.

Dr. Mathews was at the cutting edge of back/spine surgeries involving the Maverick artificial disk device. According to published reports in Virginia Lawyers Weekly, a maverick device has two metal plates that fit into a patient's disk space with a ball and a socket, and ball and socket is designed to maintain natural movement of the disk between the vertebral bone above and below the device.

However, Dr. Garver's lawsuit (handled admirably by his Virginia and Washington, D.C. co-counsel) alleged that a bone disk fragment the size of an olive was taken out of Dr. Garver's spine two weeks after the original surgery by a neurosurgeon conducting revision surgery in Connecticut. The Connecticut neurosurgeon who found the fragment, testified that at fragment of bone or disk was pressing against the nerve root in Dr. Garver's back. Dr. Garver was left with chronic pain. Evidence came out during the trial that Dr. Mathews received consulting fees from the manufacturer of the maverick device, Medtronic, that were quite considerable. During 2004-2005, Dr. Mathews was paid $700,000 and by the end of 2006, Dr. Mathews gave up his own surgical practice entirely and now works full-time for Medtronic as a vice president.

Judge Markow, of the Richmond Virginia Circuit Court, issued a written opinion in which he found that Dr. Mathews had violated the standard of care in preparing for disk space for insertion of the Maverick artificial disc. The judge referred to the medical standard for this surgery that had actually been written in part by Dr. Mathews himself. The materials, in writing, stated that the disk space was to be meticulously cleared of materials that might be driven into nerves behind the disk space, by insertion of the artificial disc. The judge found that apparently, Dr. Mathews drove some material from the disk space into Dr. Garver's nerve root on the right side near the L5-S1area involved in the surgery. Apparently, this caused permanent injury to the nerve resulting in chronic pain for Dr. Garver.

My take on this:

This case speaks volumes about our personal injury/medical malpractice system. This scenario would be like my law firm, Shapiro, Cooper, Lewis & Appleton representing a personal injury lawyer who was injured in a car accident. I know that I'd better give the best representation that I can, and work my butt off for my colleague! If I clearly failed to handle the case properly, I would expect my colleague to know about it and to know what to do-hold me liable!

Medical malpractice arises in many different ways and under many circumstances but it is hard to imagine that this particular incident could have happened had Dr. Mathews been using the care required of all spinal surgeons—whether inserting a Maverick device or simply conducting traditional fusion surgery. The tort/personal injury system in Virginia and all the United States that allows medical negligence lawsuits provides some measure of compensation for one who is permanently injured by the negligence of another. Many who argue strenuously in favor of roadblocks against medical malpractice suits, or who favor massive tort reform, have never been harmed themselves, or had a family member permanently injured. If so, they would sing a different tune.

Originally posted at InjuryBoard by Rick Shapiro

Doctor apologies prevent lawsuits for medical malpractice

John Cooper — Thu, 21 Jun 2007 10:29:55 GMT

New Virginia (VA) law allows doctors and hospitals to apologize to the people they hurt by medical errors and not have it used against them in court. This law was part of a compromise worked out between doctors and lawyers in a recent Legislative Session.

Getting this law passed was a smart play by the medical malpractice insurance lobby. Allowing the doctors to do an early apology may prevent them from being sued even when they made a clear error causing serious injury.

In our firm's decades of helping families who have been harmed by surgical or medical mistakes, we have found that often the bedside manner of the healthcare provider makes a big difference. Frequently a reason that the client has contacted a law firm about medical malpractice is not being treated well by the doctors. If someone had simply been outwardly caring, many times the patient would not contact a personal injury lawyer at all. Sometimes, it is the bad bedside manner that causes the patient to call us, even when there was a catastrophic injury caused by a clear violation of the medical standard of care. These patients are more upset by how they were treated, than what has happened to them from the standpoint of the medical result.

I agree with the idea of the new law which is to have surgeons and hospitals be able to admit an error and take responsibility without having that used against them in the lawsuit. This might cut down on the anger that leads to prolonged litigation. However, what would be even smarter would be for the risk managers at the hospitals and the doctor's insurance companies to also follow up with concept called "full disclosure/early offer". Under this method of handling medical mistakes, the meritorious claims will be dealt with promptly. The doctor and the health care providers would be in a position to be able to be honest and frank about what had happened in the treatment. In health care systems where this is being used, the Plaintiff's attorneys handling medical malpractice cases have been receptive. Things can be worked out by having two professionals sitting across the table discussing a claim it without all the expense and drama associated with full blown litigation.

Such a system is a far cry from what normally happens in Virginia (VA). Typically in Virginia (VA) any medical malpractice case has got to be fully litigated the insurance companies, before the doctors will take the case seriously. As Plaintiff's personal injury lawyers, we typically have to hire numerous expensive experts to prove what the doctor did wrong and how that caused a serious and permanent injury to the client. Only once we have shown our cards and have this proof in hand will the insurance companies handling the medical malpractice claim even discuss settlement. Unlike an automobile accident claim where the vast majority of cases are resolved without the need for litigation, medical malpractice cases in Virginia (VA) typically are hard fought, knock down, drag out battles. I think our medical malpractice clients would be very receptive to a more human and civilized method of resolving these conflicts. I hope that this new concept catches on. Some of the best healthcare systems in the world, including John's Hopkins Medical in Maryland (MD), are trying this approach.

For more information on this subject, please refer to our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by John Cooper

Attorney Client & Patient Privacy Rights Surviving Death--Did Michael Jackson's Former Nurse or Doctor Ignore Confidentiality and Privacy Rights Under HIPAA?

Rick Shapiro — Sat, 04 Jul 2009 09:04:20 GMT

Did Michael Jackson's former nurse or doctor seek personal publicity and blatantly ignore privacy rights in violation of HIPAA? On a related note, does the attorney client privilege survive the client's death?

By Rick Shapiro, Attorney/Co-Editor of Va. Beach, Norfolk, NE NC Injuryboard Blogs

HIPAA Governs Patient Privacy As To Medical Providers-

HIPAA is the main federal law protecting patient privacy and confidentiality, which stands for the Health Insurance Portability and Accountability Act, and it protects confidential patient information. Yes, it has been an administrative headache for medical providers, but has an important overall purpose of protecting this information from the encroaching "Big Brother" syndrome of your patient information getting into the hands of employer's or prying eyes of those with no rights to this information. The Act might just protect you from your doctor or nurse volunteering to speak out on a national news program like CNN and announcing to the world that you abused drugs, or may stop your provider from saying something to harm your reputation in print! Whether nutritionist Cherilyn Lee did or did not breach confidentiality would be up to the board governing her profession, presumably in California and believe me, lots of folks have emailed the California Board of Registered Nursing (BRN) asking this question.

As to the privacy rights of patients surviving death under HIPAA the World Privacy Forum is a nonprofit, non-partisan, 501(c)(3), public interest research group and its website includes the following on this point:

Do Privacy Rights Survive Death?

Yes. Under HIPAA, a patient's privacy rights survive death and last forever. We are not sure how much sense that makes, but that is what the rule provides. A deceased patient's legally authorized executor or administrator, or a person who is otherwise legally authorized to act on the behalf of the deceased patient or patient's estate, can exercise the privacy rights of a patient.

Attorney Client Privilege Survives Death-

The attorney-client privilege would not simply evaporate when your client expired/died, and respecting a public figure like Michael Jackson any disclosures clearly could have a possible adverse interest on the client's estate.

As a matter of fact the US Supreme Court ruled in 1998 that the attorney client privilege survives death in Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998).

There, the United States Supreme Court held that there is no posthumous exception to the attorney-client privilege for communications with substantial impact on criminal proceedings.
The Supreme Court stated that preservation of the privilege after death would be consistent with a clients' best interests. Survival of the privilege would encourage the kind of open and frank communication between clients and their lawyer which the privilege was intended to achieve. The court did touch on reputation, civil liability, and potential harm to friends and family, as other reasons supporting the attorney client privilege "surviving" death of the client.

Related National Injuryboard News By Jane Akre:

Exclusive - Jackson & Diprivan - FDA Issued Alert Two Years Ago

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard as a pro bono service to consumers. Lawyers licensed in: VA, NC, SC, WV, DC, KY, who handle car, truck, railroad, and medical negligence cases and more.

RNS

Originally posted at InjuryBoard by Rick Shapiro

Retained surgical sponges: a known medical error

Jim Lewis — Tue, 19 Jun 2007 09:27:19 GMT

Editor Note: My partner, Rick Shapiro, posted a May 2009 update article on surgical sponges/towels and a new technology that embeds a bar code and wand system that tracks sponges to prevent serious malpractice.

In the field of medical malpractice litigation almost all issues are hard fought by the doctors and their insurance companies. An area where medical malpractice is often so obvious as to be inescapable is in leaving a surgical sponge or other foreign object inside a patient after an operation.

As a personal injury attorney from Virginia Beach, Virginia (VA) focusing my practice on medical and surgical mistakes, I have seen this happen numerous times. Typically, it is the hospital staff that has made an error in the count of the number of surgical sponges used. However, the surgeon also has some obligation as the head of the operating team to make sure that the count of surgical instruments is made correctly before closing up the patient. When I file a lawsuit for a client who has had a surgical sponge left in her, I will normally file suit against both the hospital and the surgeon. Typically, the two sets of attorneys and insurance companies will cross finger point and blame each other for the error. This usually works out to the advantage of the injured person as they can sit back and let the two potentially negligent parties blame the other.

The value of a retained sponge case in Virginia varies depending upon the severity of the harm caused to the patient. Normally the seriousness of the injury is determined by how long the sponge or other object remains undetected. At times the sponge if left in the patient's body will form infected abscesses or other problems in the internal organs of the patient. Often a corrective surgery is required to try to treat the medical problems caused by the object which was left in the patient. I have seen situations where more than one surgery has been required as the corrective surgery leads to yet more serious complications, like the perforation of the intestine. For some examples of real cases that my law firm and I have worked on please see our website at www.hsinjurylaw.com. Every medical malpractice case however is unique with its own set of medical issues and damages to the Plaintiff. Other factors which go into the evaluation of a surgical error case are what lost wages the patient was caused as a result of the mistake and the extent of any permanent disability or medical conditions.

One of the newer laws in Virginia (VA) medical malpractice cases allows the doctor and hospital to apologize to the patient for the harm caused without having that apology used against them to prove a violation of the standard of care at trial. This rule is a good compromise that both Plaintiff's personal injury lawyers handling medical malpractice cases and the insurance defense lawyers for the doctors and hospitals could agree on. Often the surgical sponge error case is one that everyone feels bad about. This error can occur even with the very best surgeon and a top hospital involved. The harm to the patient is still worthy of compensation as he has been hurt through the negligence of the health care providers.

For more information on this subject matter, please refer to our section on Medical Malpractice.

Originally posted at InjuryBoard by Jim Lewis

Significant Medical Malpractice Risks Associated With Gastric Bypass Surgery

Emily Mapp Brannon — Thu, 19 Mar 2009 18:05:23 GMT

The summer sun is almost upon the North Carolina and Virginia coast and so is bathing suit season. Many of those battling with obesity and trying to get slimmer have also opted for gastric bypass surgery, also known as stomach stapling, when they have exhausted all other options. Gastric bypass is a procedure where the stomach size may be reduced by over 90%.

Success with gastric bypass surgery results in the loss of weight and requires following a healthy diet regime. However, for some, gastric bypass surgery results in major medical problems or even death. The problem has been so widespread that these problems have been commonly referred to by many nurses as a “gastric bypass gone bad”.

When the desire to lose the excess weight is so passionate that a major surgery is chosen the desired result is to live the new life with a new healthy body. When something goes wrong that result is not only lost physically bad, but emotionally bad. In 2008, two sons of a New York woman were awarded $16.8 Million in damages for the loss of their mother. The 36 year-old woman had her intestines rerouted and her stomach stapled down to where it would hold two tablespoons of food. She later died of malnutrition and liver failure. Her lawyer stated that he considered her case predatory medicine as she wasn’t even a good candidate for the surgery.

In a similar situation a woman from Virginia Beach, VA had the surgery which was done improperly and then underwent two more surgeries to correct the problems.The key in her case was to prove that the doctor had committed medical malpractice and had not met applicable medical standards. The mediation resulted in the Elizabeth City resident being awarded $500,000, in her claim against the Naval Hospital and its doctors.

Our injury law firm maintains a NE NC office in Elizabeth City, and our main law office is in Virginia Beach, Virginia. Four of our law firm's injury lawyers are licensed to practice law in North Carolina, Virginia, and beyond. For over a decade we have been helping North Carolina residents, including those suffering injuries or wrongful death in VA/NC.

Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia, with offices in northeast NC and Virginia Beach (VA), practicing primarily in the southeastern U.S. and handles only injury law, including car, truck, railroad, and medical negligence cases and more. The firm's website is: hsinjurylaw.com, the firm edits three injury law blogs: Virginia Beach Injuryboard & Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard and also hosts a video library covering many FAQ’s on personal injury subjects

Originally posted at InjuryBoard by Emily Mapp Brannon

Lawyers Battle On For The Doctors Who Testify In The Courtroom

Rick Shapiro — Sat, 18 Nov 2006 09:12:23 GMT

I have previously written a blog article about the amazing efforts by some doctors to try to silence and even revoke the medical licenses of doctors who give honest testimony in medical malpractice cases, almost always on the side of the victim or patient. In other words, when a doctor is sued for malpractice, often the doctor sued does not focus on improving their technique, to avoid another malpractice claim, but instead may focus on "getting even" with the doctor who testified honestly that what occurred may have been negligent conduct. These efforts involve trying to silence or to intimidate any doctor who testifies on behalf of the patient or victim.

A new case arose in Texas. The Texas doctor, only known as "John Doe, M.D." appealed the trial court's refusal to issue an injunction which would block the Texas Medical Board from taking disciplinary action against him. He is asking the Texas Court of Appeals to support his position. His Texas lawyer said his client's reputation would essentially be ruined if the medical board even issues a reprimand to him. His attorney remarked: "the intent of the medical board's action is to let doctors know if they are willing to testify that another physician in Texas has acted below the standard of care they are subject to disciplinary proceedings -- up to and including not being able to practice medicine." Amazingly, the Texas medical board reviewed 13 medical malpractice cases that the particular doctor had testified in over a prior decade. In fact, the Texas attorney general is supporting the state medical board, and the claim of the medical board is that this physician exaggerated testimony and should have remained neutral when testifying as an expert in medical malpractice suits.

The doctor's lawyer has argued that his testimony met all of the criteria in the Texas courts for expert testimony and that the medical board's actions violated the doctor's First Amendment rights.

The executive director of the Center for Constitutional Litigation, John Vail, noted: "it clearly has the effect of intimidating witnesses and making it more difficult to get witnesses into court, and thereby depriving courts of the information they need to decide cases."

A recent article in Lawyers Weekly USA also outlined that there are cases on this issue pending in Florida, Louisiana and North Carolina. One of the legal points that is arising from these cases that I suspect will end up being adopted by many courts is that when a physician testifies forensically in court, he is not engaged in the practice of medicine. In my view, the best and most logical argument on why medical boards cannot punish a doctor for providing forensic testimony is that the doctor is not engaged in any part of the practice of medicine when testifying as an expert witness in a courtroom. Accordingly, this type of testimony would not involve a doctor's actual practice of medicine and would be outside the area which a state medical board should be entitled to regulate at all. Moreover, testimony by a doctor is permitted under the First Amendment and should not be subject to intimidation by threats from a medical board. This issue will play itself out in the next several years, and I believe that the courts will vindicate the right of doctors to testify forensically as they see fit without fear of a revocation of their license-even if that testimony essentially is against another doctor or hospital. Any other rule would be like saying that a a retired detective could not testify against the police force in a criminal case without fear of losing a detective's license, or that a lawyer could not testify against another lawyer in a legal malpractice case without the State Bar seeking to revoke the lawyer's license because it is dissatisfied with forensic testimony that could "harm" attorneys.

Our firm, like many firms representing victims, only accepts medical negligence cases when a medical or dental professional is of the opinion that another doctor has been careless or negligent. The civil justice system is one important safeguard that assures a financial disincentive for careless and reckless behavior by physicians especially given the serious consequences of medical errors.

Originally posted at InjuryBoard by Rick Shapiro