Perlmutter & Schuelke, LLP » Medical Malpractice

Wrongful Testicle Removal Prompts Lawsuit

jferris — Sun, 30 May 2010 14:14:14 +0000

Having a testicle biopsy is one thing. Waking up to find the testicle surgically removed is another.

This case is a difficult one and one that the plaintiff never dreamed would ever happen. The story unfolded fairly quietly to begin with when 23-year-old Karl Ruby (names have been changed to protect the victim and their family) went to a Tucson hospital to have a biopsy on his right testicle. It was evidently his understanding that the procedure would remain a simple biopsy, unless the biopsy showed the presence of cancer.

When Ruby woke up and found out he had lost his testicle, he assumed, as he had been told earlier, that he had cancer and that was why it was removed. Just a little over a week later during a follow-up appointment he got some stunning news – he did not have cancer. This revelation prompted Ruby to take his case to a medical malpractice lawyer and sue the hospital and the doctors involved in his surgery.

The case made it to court where the jury heard that Ruby had been in an alcohol related roll over, and went to the hospital for pain, which he thought was a result of the accident. The hospital subsequently phoned him and said he had a mass in his right testicle and needed a biopsy. Ruby went to the doctor who said he has a mass on his “left” testicle and calcium buildup on his right. He later corrected the choice of testicle after an ultrasound to the right testicle showed a mass. A biopsy was talked about again with the physician indicating the testicle would only be removed if cancerous.

This is the point where things got confusing, as the doctor supposedly told Ruby he’d do an excisional biopsy – meaning do the tests after the testicle was removed. Ruby said that was not right and he was later informed the mass was a hematoma. The defendants claim Ruby knew doctors could not do a biopsy without removing the testicle to avoid spreading cancer. In addition, hospital records seem to indicate Ruby told a nurse he was there to have his testicle removed.

As you may gather, this is one of those cases where a great deal will hinge on the evidence, the documents and how the case is presented during trial. “This isn’t going to be an easy case, but the attorney obviously felt that there was a good chance Ruby would win, and had the kind of proof that should stand up in court, or the case would not have gone to trial,” indicated Austin personal injury lawyer Brooks Schuelke.

Many medical malpractice lawyers are selective in the cases they choose to take to trial that involve medical malpractice. One reason for this is that many states, including Texas, have medical malpractice damage caps. This means that no matter how serious the injury is, there is an arbitrary limit on the amount of damages that the medical malpractice victim can recover.

This flies in the face of true justice and holding the wrongdoer completely accountable for their negligence. Unfortunately, in some cases of genuine malpractice the true damages would far exceed the cap and the case isn’t accepted because of the costs involved to the client.

“The other thing many people don’t realize is that not every bad medical outcome is the result of medical malpractice. For this reason, some people who feel they have a medical negligence case don’t really have a case. This is something that is difficult to explain, as perception is a big part of any person’s relationship to what happened to them. In any situation where you think you have been the victim of medical malpractice, take the time to consult with an attorney. You will need information to make informed decisions,” added Schuelke, an Austin personal injury lawyer.

Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.

Why Should A Bad Driver, A Dangerous Doctor, Or An Unsafe Employer Get A Benefit From Your Health Insurance?

brooks — Tue, 11 May 2010 20:08:30 +0000

A recent Ohio Supreme Court decision allows defendants in personal injury cases to introduce evidence that the plaintiff’s medical providers “wrote off” charges for the plaintiff’s care. Most health insurance companies have agreements with medical providers that the medical providers will accept a reduced amount as payment in full for procedures. For example, in the Ohio case, the plaintiff was billed $21,874.80 for care. This is the amount that the provider would have charged a patient without insurance. However, because of the insurance contract between the patient and the provider, the insurance company paid $7,483.91 and wrote off the rest.

The Ohio trial judge said only allowed evidence of the full $21,874.80 in charges, but the Ohio Supreme Court said that the evidence of the write off should have been admitted. The opinion is here.

A number of other states have held the opposite. How do we deal with it in Texas? Frankly, no one is sure.

Historically, Texas has not allowed in evidence of the write offs. But in the 2003 legislative session, the legislature adopted a rule that reads:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does that mean? Without defining “paid” or “incurred” the statute is a model of poor draftsmanship. Despite the statute being around for seven years now, courts still haven’t come to a good conclusion of what it means. I can tell you that in most Travis County courts the judges aren’t allowing in evidence of the write off, but they will reduce the jury’s award for medical expenses after the verdict is rendered to equal the amount that was actually paid, including insurance payments, co-pays, etc.

The result of this is that in two hypothetical cases — one where a driver runs over an employed person with insurance and one where a driver runs over the same employed person without insurance — there will be two very different results due to the existence of health insurance.

But all of this begs the question, “Why should a bad driver, a dangerous doctor, or an unsafe employer get a benefit from your health insurance?”

When there are write offs, there are two possible outcomes. First, the plaintiff could be awarded the full amount of the medical charges even though some are never paid due to the reduction. This would be a benefit to the plaintiff. Second, the plaintiff could be awarded the reduced amount, which would mean the defendant gets a benefit from the health insurance reduction.

So we’re faced with deciding which of two sides gets a benefit: the side that purchased health insurance or had an employer purchase health insurance or the side that committed the wrong that resulted in the suit. If you’re choosing between the two, why should the wrongdoer get the benefit of the insurance? I’ve had a discussion about this law with a number of different people, and I’ve yet to hear any good reasons why benefits of health insurance should not go to the innocent party, but should instead go to the wrongdoer. If you have suggestions, let me know.

And a h/t to Nashville, Tennessee injury lawyer John Day & his blog Day on Torts for the link to the opinion.

Should Texas Be The Model For Medical Malpractice Reform?

brooks — Wed, 10 Mar 2010 11:52:26 +0000

In the last few months, opponents of health care reform have insisted that one key to lowering health care costs is the adoption of “tort reform” by capping the damages that can be recovered in medical malpractice cases.

For some time now, I’ve been urging people to look at the Texas medical malpractice ”experiment” to see if those claims were right. In 2003, the Texas legislature re-wrote Texas medical malpractice laws and put in place some of the most restrictive caps in the country. And where has it gotten us?

I’ve argued in the past that the Texas experiment proves that damage caps don’t help people. For instance, since the caps were put in place, the cost of health care has increased for Texas consumers. Similarly, Texans were promised that tort reform would significantly increase the number of doctors in areas of the state that traditionally have trouble finding medical care. By and large, that hasn’t occurred.

Now, a new study by Public Citizen not only helps prove my arguments, but shows that the results are even worse than I imagined. Have health care costs gone down since the adoption of Texas’s tort reform laws? No. In fact, the contrary has occurred. Since 2004, per patient Medicare spending (one of the best indicators of health care costs) has risen in Texas at nearly twice the national average. Similarly, tort reform supporters argue that doctors continually run unnecessary tests because they are scared of being sued. But the data shows that the increase in testing expenses in Texas has grown at a much higher rate than the national average.

Surely health insurance premiums for Texas consumers have been getting better since “tort reform”? Wrong again. Texas premiums have increased 144 percent for families since the adoption of tort reform. And that increase is just about at the national average.

Maybe medical malpractice caps haven’t decreased costs, but the reforms must be allowing new doctors to come to Texas, right? Yes and no. The number of doctors has increased since 2003. But that’s misleading. The growth in number of physicians per capita has increased at a much lower rate than we were growing prior to “tort reform.” Similarly, there is little, if any, difference in the number of doctors in the rural parts of area — the areas that really need doctors. In rural areas, the number of direct care physicians per capita is almost identical to what it was in 2003. And by and large, areas that were without various specialists are still without those specialists.

So what are we getting for “tort reform”? As a Dallas news-reporter noted:

So did Texans benefit from “tort reform”?

Doctors, some.

Insurance companies? A lot.

Most Texans probably couldn’t say.

But if you lost your baby after a difficult delivery, tort reform may have taken away your ability to find answers.

We now have over five years of data showing that medical malpractice caps don’t produce the promised benefits. The government shouldn’t take the mistakes that we’ve made in Texas and implement them all over the country.

Texas Medical Malpractice Reform and More Docs, part 2

sbrennan — Sun, 11 Oct 2009 19:52:33 +0000

Last week we posted about the New York Times article on the alleged influx of doctors as a result of Texas’s medical malpractice reform. Since then, the New York Personal Injury Blog has chimed in (with interesting stats that we wish we had thought to look for), and Bill Childs Torts Profs’ Blog has posted related to the study not once, but twice. And then earlier this week, Professor Anthony Sebek of the Cardozo School of Law pitched in his two cents.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Medical Malpractice: Avoid Unnecessary Surgeries

sbrennan — Thu, 10 Sep 2009 19:55:34 +0000

One of the byproducts of the national healthcare debate has been an increasing awareness that medical costs are high, at least in part, because of unnecessary surgeries, tests, and other procedures that have been ordered to simply line the pockets of the providers. Recently, our office has received inquiries relating to unnecessary procedures, including unnecessary back surgery, and even more frightening, unnecessary heart surgery.

For this reason, we advise all of our clients and friends to make sure to obtain second opinions before consenting to major surgeries.　There is no question that surgeries improve lives and save lives when they are properly indicated, but caution is always warranted when we consent to place our bodies under the knife.

Patient Tips To Avoid Wrong Site Surgery

sbrennan — Fri, 14 Aug 2009 20:07:11 +0000

Earlier this week, in the post Medical Malpractice, Dead By Mistake, And Wrong-Site Surgery, I promised patient tips for avoiding wrong-site surgeries. I’m carrying out on that promise today. Here are some things that surgical patients can do to avoiid wrong-site surgery:

1. Make sure you know what surgeon is in charge, and communicate with your physician. Most wrong-site surgeries are the result of poor communication.

2. Speak up if you have concerns. It is basic psychology that people are hesitant to question authority figures, such as doctors. But patients and nurses must be willing to question physicians when the patients or nurses have concerns. If something doesn’t look or feel right to you, speak up. We were all told in school that there are no stupid questions. That’s particularly true when your health is on the line.

3. Be patient with the staff. Don’t be upset if each doctor and each nurse ask the same information. A standard protocol requires each staff member to confirm the proper procedure is being done.

4. Pre-mark the spot. If you’re going to have surgery on your right knee, take a permanent marker the night before and mark “NO” on your left knee. You might think this is silly, but a simple Google search turns up studies from physicians trying to pass the blame for wrong-site surgeries on to patients for not properly marking which limb or body part to avoid.

5. Participate in the staff’s marking of the proper site the day of surgery. Make sure that the site is marked before you undergo the anesthesia.

6. Have someone you trust there to be your advocate, and make sure they know which procedure is supposed to be done. Several years ago I had knee surgery to repair a torn ACL. Apparently, I’m susceptible to anesthesia, and I was quickly getting loopy after the first round of anesthesia was administered. Even after that, the hospital staff was trying to have me sign papers. Fortunately, my wife was there to tell them I was in no position to sign documents and to make sure that they continued prepping me for the proper surgery.

Hopefully, you or your loved ones won’t need any surgical procedures, but following these simple steps could help prevent an avoidable medical error.

Medical Malpractice, Dead By Mistake, and Wrong Site Surgery

sbrennan — Tue, 11 Aug 2009 20:09:40 +0000

Richard Flagg entered Meadowland Hospital in Secaucus, NJ with a diseased lung. Unfortunately, his surgeons accidentlally removed his healthy lung, leaving behind a tumor in his diseased lung. Mr. Flagg survived for three years, attached to oxygen, until the tumor ruptured and he drowned in his blood.

This is one of the stories in the Hearst Group’s Dead By Mistake. And it seems almost far-fetched. Doctors removing the wrong lung? How often could that happen? Much more frequent than you think.

It turns out that Wrong Site, Wrong Side, Wrong Procedure, Wrong Patient surgeries are common. The Archives of Surgery, the official medical journal of surgery associations across the country, did a study and found that almost 3,000 procedures were performed each year where the surgeon operated on the wrong side or site, performed the wrong procedure or operated on the wrong patient. And those are just the reported instances.

The Joint Commission On Accreditation of Healthcare Organizations is a non-profit that accredits and certifies health care organizations nationwide. The Joint Commission asks its members to report and keep track of sentinel events, unexpected events that lead to death or serious injury, and wrong site surgeries are the #1 type of sentinel event recorded.

In May 2003, the Joint Commission hosted a summit on Wrong Site surgeries. After consulting with some of the world’s leading physicians, the Joint Commission established its Uniform Protocol for surgeries. The protocol has three steps: (1) the hospital must make sure it has pre-operation processes in place to ensure the right procedure is being performed; (2) someone must specifically mark the part of the body that is being operated on; and (3) the surgical team must take a “time out” before starting surgery to verify that the proper procedure is about to be performed.

But is it enough? Perhaps not.

Steve Sanford, of the Preferred Physicians Medical Risk Retention Group, contends that the Universal Protocol has several flaws that prevent it from being effective. First, he argues against the shared responsibility advocated by the protocol. Shared responsibility is, in essence, no responsibility. When participants to a surgery think other participants are going to check the proper site, the responsibility goes unfulfilled. Instead, Sanford argues that the surgeon should have the sole responsibility and should know that he or she will be held accountable for the errors — no more suggesting that someone else should have handled it.

Sanford also argues that the protocol is not specific enough and leaves too much interpretation up to individual institutions. If the standard was more concrete and accepted between institutions, it might be easier to follow.

Statistics suggest that Sanford is right. PPM’s statistics show that the number of wrong site surgeries actually increased following the adoption of the Universal Protocol. Other studies made similar findings.

So what do we do? We’ll look at that in a later post.

Why Isn’t There More Outrage About Medical Malpractice Deaths?

sbrennan — Mon, 10 Aug 2009 20:11:01 +0000

The Hearst family of newspapers and television stations has put together, Dead By Mistake, an unprecedented look at medical malpractice deaths. This was a massive project, and there are several aspects that I want to look at over the next few days, but the focus of today is, “Why Aren’t More People Outraged Over Medical Malpractice Deaths?”

The study found that an estimated 98,000 people die from preventable medical errors each year. How many is that? To put it in perspective, the article noted that:

More Americans die each month of preventable medical errors than died in the terrorist attacks of Sept. 11, 2001.

Or, as Dennis Quaid put it, it’s the equivalent of a full 747 crashing every day.

Or, as those of us that are football fans might think of, it’s the equivalent of a full Darrell K Royal Texas Memorial Stadium being killed.

And to make it worse, in addition to those 98,000 dead, the Centers for Disease Control estimates that an additional 99,000 people a year die from infections acquired from hospitals. That’s almost 200,000 people a year killed by medical malpractice.

And where is the outrage? Sept. 11 has garnered its deserved media attention. And the airwaves over the last few days have been filled with stories about the small plane/sight-seeing helicopter crash. And I can only imagine the media coverage from some disaster wiping out a full DKR, but no one seems to care about medical malpractice.

Why?

I’ve seen these types of numbers before, and I’ve seen the pain endured by parents, children and spouses after a medical error takes a life, and I’ve wondered why no outrage. And I still don’t have an answer for it.

If any of you have an answer or thought on it, I’d love to hear it.

Surgeons: Use Us Because We’re Easy To Sue?

sbrennan — Sun, 07 Jun 2009 20:38:51 +0000

Last week, noted blogger, Doctor Rich had a post examining the American College of Surgeons’ advice regarding medical tourism, where a patient travels outside the United States to obtain medical care. No shocker, but American surgeons aren’t fans of the practice, and they did their best to give reasons why patients should be careful with medical tourism.

For those of us that are plaintiffs’ lawyers, the biggest shocker had to be the physicians’ sudden concern that patients traveling out of the country might have difficulties bringing medical malpractice suits. Dr. Rich writes:

Second, and most astoundingly, Dr. Rich notes – not so much with interest, but more with awe – that the surgeons are beseeching their patients to consider just how difficult it might be to launch a malpractice suit against foreign doctors. (Dr. Rich himself does not know how difficult this would be. Given that we are being so strongly urged these days to merge the American legal system with international law, it might not be much of a problem for long.) Indeed, the potential difficulty in suing foreign doctors appears to be the chief differentiator, and the primary argument in favor of good-old-American-surgery. The surgeons, in essence, are saying, “Let us do your surgery, because we’re easier to sue if we screw up.”

This, from the very body of American physicians who are most at risk for malpractice suits, and who traditionally have been most vociferous in favor of malpractice reform.

This isn’t the first time I’ve heard this argument; in fact, I have a previous post on the subject (A Doctor Touting The Benefits of Texas’s Medical Malpractice System?). And I said it then, and I’ll say it again: I find this appalling. In 2003, when the medical and insurance lobbies simply obliterated the Texas medical malpractice system, the doctors were all over themselves to do anything they could to take away patients’ rights to sue. In 2003, and even earlier, the Texas Trial Lawyers’ Association tried to sit down with the medical associations to work out mutually beneficial legislation that might help meet the needs of the medical lobby while also protecting Texas consumers, and the medical lobby wanted none of it. They simply wanted to take away as many rights as possible. To sit there now and tout the medical malpractice system as a reason to avoid medical tourism is hypocrisy at its best.

I don’t know what the future holds for medical tourism, but I’ll continue to watch and see if the medical lobby continues this disingenuous concern for patients.

Dallas Morning News: Malpractice Caps Not Reducing Health Costs

sbrennan — Tue, 21 Apr 2009 17:36:29 +0000

Today’s Dallas Morning News ran a story that looked at whether the cost of health care has declined since the adoption of Texas’s medical malpractice caps. The evidence concludes that the caps aren’t reducing health care costs for consumers.

Six years after the caps were passed, the doctors have enjoyed lower insurance rates (though rates haven’t decreased as much as they rocketed up shortly before the caps were passed) and Texas has more doctors (though, again, there is debate about why the numbers have increased), but consumers aren’t getting any additional relief. In Texas, health insurance premiums continue to rise dramatically, and Medicare spending, an bellweather for medical costs, have increased dramatically.

And Texas isn’t alone. The Dallas Morning News article cites a study by University of Alabama researchers that looked at 27 states, including Texas, that had caps on non-economic damages also concluded that tort reforms have not led to health care cost savings for consumers. As Michael Morrisey, a professor of health economics at the University of Alabama put it:

The results of the study suggest that there are no insurance premium savings that accrue to consumers. Are there other benefits to consumers? If these cannot be identified, it is difficult to see a justification for the loss of legal rights.