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Can doctors fight online medical malpractice claims?

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Thursday, April 4th, 2013

Patients who feel that a physician’s negligence contributed to a poor outcome can file medical malpractice lawsuits. They can go online and describe their situations on Angie’s List, Yelp, and personal blogs. It turns out that at least some physicians are fighting back, complicating the legal landscape.

One Massachusetts surgeon recently filed a defamation lawsuit against the husband of a patient and the website where he posted the story of his wife’s illness and death after being treated by the surgeon. It turns out that this case is not unique. According to the director of the Center for Media Law and Policy at the University of North Carolina, the Internet, “has realigned the power structure that existed between doctors and patients.” Patients now have far more influence than they have ever had, and “[d]octors have reacted with a great deal of hostility toward this.”

A project at Harvard University has tracked negative online comments about doctors and subsequent defamation lawsuits by those doctors. So far, they have identified seven cases, including that of the Massachusetts surgeon mentioned here. The actual number is much larger, because patients have either taken down their negative comments, or judges have dismissed the physicians’ lawsuits, saying that Internet comments by patients are protected speech and cannot be used as the basis for lawsuits. In some instances, doctors who have filed defamation claims have been required to pay the defendants’ legal costs.

For doctors, going to court has many downsides, but the biggest is that it draws attention to negative comments about medical malpractice. Some say that the medical community will need to be more proactive in managing reputations by encouraging patients to post positive comments – in the same way that many hotels and restaurants ask satisfied customers to review them on Internet travel sites.

But is an indifferent meal really the same as a fatality or poor outcome due to medical negligence? Doctors will need to decide whether they wish to fight back when charged with negligence, either within the legal system or in the court of public opinion.

Source: Boston Globe, “Doctors firing back at patients’ online critiques,” by Liz Kowalczyk, Mar. 31, 2013.

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Medical malpractice award shows need to follow protocols

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Wednesday, March 27th, 2013

A recent jury award in a medical malpractice case in Rome, New York, underscores the importance of following medical protocols for evaluating patients. The plaintiff, now a 22 year old woman, suffered an ischemic stroke while rehearsing a high school play on March 11, 2007. The civil jury awarded her $1.25 million in damages, agreeing that the hospital and ER doctor were medically negligent in not immediately diagnosing her condition.

By the time the hospital staff consulted a neurologist, it was too late for the teen to benefit from clot-busting drugs. Such drugs must be administered within three hours of the event to prevent damage. The young woman suffers from significant speech, physical and other problems because she did not receive timely medical treatment.

The verdict included damages for past medical expenses as well as past and future pain and suffering.

The hospital responded that ischemic stroke is very rare in children and young adults, and that it was not negligence that caused the failure to diagnose the stroke. They further argued that ad ministering the clot-busting drug would have been an off-label use, as the drug, tPA, is intended only for adults.

However, the young woman’s attorney presented evidence at the medical malpractice trial that showed that the hospital staff failed to follow their own protocols for neurological exams and that at age 16, the patient was physiologically an adult and that administering tPA would have been entirely appropriate.

The hospital will not comment further because post-trial motions are before the court.

Source: Observer-Dispatch, “$1.25 million awarded in St. Elizabeth malpractice case,” by Rocco LaDuca, Mar. 4, 2013.

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A doctor speaks about medical malpractice

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Thursday, March 21st, 2013

It is unusual for doctors to report errors caused by medical malpractice – either those they commit or those they experience. So a recent Op-Ed piece in the New York Times represents a call to action by at least one medical professional. 

Dr. Frederick S. Southwick describes the amputation of his left leg after a blood clot formed. He speculates about the origin of the blood clot, ultimately deciding that the clot originated from the too-tight pressure cuff used during ankle surgery many years previously. The injured blood vessels scarred and calcified blocking all blood flow to his leg.

The irony, according to Dr. Southwick, is that he has been a leader in trying to prevent medical errors. And despite the efforts of many other physicians like him, little progress has been made.

Or that’s what he thinks. However, he notes that it is actually impossible to count the number of deaths and injuries caused by medical mistakes. There is no system of national reporting. So saying that there has been no improvement is really a guess.

The best numbers available are more than 10 years old. A major study undertaken by the Institute of Medicine estimated that between 44,000 and 98,000 preventable deaths occur each year because of medical error. The study also assumed that for every death there are 10 injuries, making the total number of preventable medical injuries and fatalities around one million.

Dr. Southwick states that the reason for an unchanging medical error rate is that medical professionals have been unwilling or unable to change their approach to the practice of medicine.

He recommends that the medical profession adopt the kind of safety measures common in manufacturing and points to alarms and automatic shutoffs as simple but effective measures that would make it more difficult for doctors and nurses to do the wrong things.

He points to his own situation. If there had been an alarm to alert physicians to how long the cuff was used, or if it had automatically deflated after a certain period, the blood vessels in his leg might never have been damaged.

But what is most important, he says, is better communication and a willingness to address the problem of medical malpractice. He points to the controversial Affordable Care Act as a start – a recognition that the medical system needs an injection of evidenced-based treatments and reimbursement schedules to ensure that the practice of medicine harms fewer patients.

Source: New York Times, “Losing My Leg to a Medical Error,” by Frederick S. Southwick, Feb. 20, 2013.

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Recent New York Personal Injury Verdicts and Settlements

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Tuesday, February 12th, 2013

New York is still a state where plaintiffs can obtain justice in the courts after being injured because of another party’s negligence. Read on to learn about three recent personal injury cases in New York where the courts found in favor of injured plaintiffs.

Personal Injury

Bradley R. Pettit v. Buffalo Hospital Supply, 12-23-2012. Bradley R. Pettit sued Buffalo Hospital Supply after being injured by falling merchandise from an improperly loaded delivery truck. $1.95 million jury verdict for plaintiff.

Medical Malpractice

The Family and Estate of Joseph Mazella v. Dr. William Beal, 11-29-2012. The family of Joseph Mazella charged Dr. Beal with prescribing Paxil and Effexor, two anti-depressant drugs, without seeing him in the office. The case resulted in a plaintiff’s verdict of $1.2 million in Onandoga County.

Construction Accident

David Stauber v. LeChase Construction Services of Syracuse, 10-31-2012. The plaintiff, David Stauber, sued LeChase Construction Services claiming that he had suffered brain damage because a safety mechanism failed and the middle of the scaffold where he was working simply dropped 60 feet to the ground. LeChase Construction admitted liability and the jury awarded Mr. Stauber $2 million that covered past and future pain and suffering, past and future lost income, and past and future medical expenses.

Check back for additional New York verdicts and settlements. Although so-called tort reform has not yet been passed in the state, each legislative session sees efforts to restrict individuals’ rights to obtain full justice from the court system.

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Small reforms that can significantly improve patient safety in the hospital – part 2

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Tuesday, October 9th, 2012

In our previous blog post on hospital safety, we introduced five reforms that one surgeon believes will significantly reduce medical errors and improve patient safety if implemented. This post will explore these recommendations in more detail.

Online dashboards

All hospitals should have an online informational “dashboard” that reports information that can help patients make informed choices about where to go for hospital care. The dashboard should include statistics for surgical complications, patient readmissions, infection, the number and types of surgeries performed, and patient satisfaction scores. People get performance information on restaurants, cars and many other consumer items. Why should hospitals be any different?

Safety culture scores

A hospital culture that promotes safety makes for a better, safer, hospital. Employees at all levels should be encouraged to speak up rather than remain silent because they fear for their jobs. After all, who knows better whether a hospital is safe than its employees? This can only happen when all personnel see themselves as part of a team; studies have shown that when hospital employees do not view their colleagues as partners, outcomes – and patients — suffer.


Nothing keeps doctors on their toes better than the knowledge that they are being filmed. Having procedures filmed and preserved encourages physicians to follow evidence- based guidelines and established best practices. Videotaping and reviewing common procedures such as colonoscopies, cardiac catheterizations, arthroscopic surgery and others will promote peer-based quality improvement. One study showed that when hand-washing stations were filmed, compliance with standard hand-0washing procedures improved dramatically.

Open notes

Dictating notes during the patient visit so the patient can hear improves accuracy. If the doctor is recording the details of the patient exam and conversation incorrectly, the patient has a chance to correct it. Even if this is not practical, having notes available for a patient to review later provides an opportunity to correct errors in the patient record.

No more gagging

Although some hospitals and clinics have adopted some of these improvements, there are signs of backward movement as well. For example, patients are often asked to sign non-disclosure orders that promise never to say anything bad about their treatment online or elsewhere. And if you do suffer the consequences of a medical error and sue a hospital or doctor, you will almost certainly be required to not say anything about the injury as a condition of your settlement. Patients need more transparency, not less. This will allow hospitals to compete on safety as well as parking and anecdotal reputation.

Source: Wall Street Journal, “How to stop hospitals from killing us,” Sep. 21, 2012.

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Proposal may allow for improved hospital safety information

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Tuesday, September 25th, 2012

Even though they are concerned about liability and financial penalties, hospitals say they are receptive to an idea proposed by President Obama that would encourage patients to report medical mistakes. The government says that medical errors often go unreported and that hospitals could improve their safety records if they had more information.

Carolyn Clancy, director of the federal Agency for Healthcare Research and Quality, said, “Currently, there is no mechanism for consumers to report information about patient safety events.” The agency has drafted a flier that includes questions such as, “Have you recently experienced a medical mistake? Do you have concerns about the safety of your health care?” And it urges patients to contact a new “consumer reporting system for patient safety.”

“Patient reports could complement and enhance reports from providers and thus produce a more complete and accurate understanding of the prevalence and characteristics” of medical errors, Dr. Clancy said. The proposed reporting system would allow patients and their relatives to report medical mistakes through a website and in telephone interviews. Health officials hope to start collecting information in May. Reporting will be voluntary, and information provided by patients will be kept confidential.

This initiative is in line with other government efforts to improve the quality of care provided in hospitals and other clinical settings. In recent years, federal officials have tried to develop mechanisms that link quality of care with Medicaid and Medicare payments. Collecting more information from patients could be an effective way to improve patient outcomes and safety.

Source: Post-Gazette, “Feds want patients to report medical provider mistakes,” Sep. 23, 2012

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Are doctors getting better or is the medical board getting softer?

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Thursday, September 13th, 2012

It appears that New York State is less aggressive when it comes to punishing bad doctors. The Albany Times-Union reported that disciplinary actions have declined significantly. Since the mid-1990s, revocation and surrender actions dropped from 184 in 1996 to 96 in 2011. However, the number of less severe disciplinary actions, called “censure and reprimands,” tripled in the same period, from 34 to 99.

Some former members of the state medical board note that protecting patients is no longer the primary focus of disciplinary actions. What was once a crusade has become an opportunity to plea-bargain. One former member said that the process of disciplining bad doctors had become just a bureaucratic event.

One should not make the mistake of assuming that a decrease in severe disciplinary actions means that doctors are getting less negligent. As part of its study, the Times-Union reported that:

  • Complaints against doctors rose almost 40 percent.
  • Minor actions against doctors such as censure and reprimand rose 67 percent.

However, the number of doctors in the state has also increased, from 63,000 in 1992 to 89,000 in 2011. An increase in all types of disciplinary actions would be natural. What is disturbing is the reduction in actions such as surrendering or revoking licenses.

This trend is national in scope. Public Citizen has reported that the number of serious actions against physicians has declined by 18 percent from its peak in 2004. However, New York is still better than many other states. Of large states, only Ohio, Illinois and Florida had higher rates of serious doctor sanctions. However, when compared to all other states, New York is now 24th, down from its 10th place ranking in 2000.

Source: Albany Times-Union, “Medical Board Softer on Doctors,” Aug. 18, 2012.

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Medical malpractice at City Hospitals takes a toll on innocent victims

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Tuesday, September 11th, 2012

Recent court documents reveal that the cost of the needless harm inflicted on residents in the city’s 11 public hospitals amounts to millions as determined by medical malpractice verdicts and settlements. In the fiscal year that ended in June 2012, the city paid $134 million. In the past four years, medical malpractice has cost the city more than half a billion dollars. Yet the city offers no plan to address this lack of proper care and improve patient safety.

The cases involve a wide range of medical errors, from obstetrical mistakes that have left babies brain-damaged to undiagnosed brain aneurysms. The eleven public hospitals include the Queens Hospital Center, where an infant suffered a skull fracture during birth. A Bronx hospital did not have the equipment needed to revive a baby quickly; today, the child can barely speak.

A woman from Queens was released from Elmhurst Hospital but collapsed three days later. Physicians at the hospital had failed to diagnose a brain aneurism; the woman is in a permanent vegetative state today.

The city has not responded directly to the report, but notes that medical malpractice verdicts and settlements are slightly down from the previous year, and are significantly down from the all-time high of $193 million in 2003. The current report lists 270 cases that resulted in verdicts or settlements to patients and their families whose lives were turned upside down by medical negligence and error.

The medical malpractice payments are only a fraction of the harm the city inflicts on it’s residents, which is estimated to reach $735 million this year, as detailed in a previous blog.

Source: Daily News, “Medical malpractice lawsuits have cost city $134 million this year and range from babies crushed to crucial misdiagnoses,” Aug. 27, 2012.

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