New RI policies to prevent wrong site surgeries

Can you think of a worse situation than having a physician perform surgery on the wrong part of your body? Unfortunately, it’s something that happens through negligence in the medical business, and steps are being taken to curb this activity. In Rhode Island, all 14 hospitals have agreed to adopt a uniform set of precautions to prevent surgeons from operating on the wrong body part or committing other grievous errors, according to an Associated press report. The complete story can be viewed by clicking here.

Under the new protocol, hospitals will have “two licensed providers mark the place on the patient where the operation is to occur and” surgeons will be required “to mark the spot with their initials and use a checklist before surgeries.” These procedures are aimed at helping physicians “who work at multiple hospitals reduce the potential for operating on the wrong part of the patient or other mistakes.”

Officials began developing “the protocol…18 months ago, before several wrong-site surgeries at Rhode Island hospitals occurred,” Jean Marie Rocha, vice president of clinical affairs for the Hospital Association of Rhode Island, said.

We have had the occasion to represent plaintiffs injured from surgical procedures on the wrong part of the body. Such incidents often times have devastating consequences to the patients and lead to mistrust of medical professionals. It’s good to see that steps are being taken to curb these medical errors and protect patients.

Unused gift card money plucked by state governments

The Wall Street Journal reported today that some states faced with sinking tax collections and rising debt are going after unused gift cards that bolster their revenue. You can view the article by clicking here.

South Carolina is considering legislation that would give the state the right to collect unclaimed gift-card credit. A similar measure in Texas to allow the collection of unused credit even from cards that have no expiration date passed that state’s House this spring and stalled in the Senate. Texas already collects unused gift cards with expiration dates.

According to the WSJ report, each year Americans spend about $65 billion in gift cards — excluding bank-issued prepaid cards — but don’t redeem $6.8 billion.

This story brings up yet another host of issues involving the gift card industry. We have been writing about problems associated with gift cards for several years. We have highlighted issues with dormancy fees, bankruptcies, and gift card litigation. Click here for a collection of our posts on gift cards.

Supreme Court will only clarify school rules

Don’t look to the Supreme Court to set school rules, only to clarify them when officials have abdicated that responsibility, Chief Justice John Roberts said Saturday according to an AP report (you can view the full report by clicking here).

At a judicial conference, Roberts was asked how school administrators should interpret seemingly conflicting messages from the Court in two recent decisions, including one last week that said Arizona officials conducted an unconstitutional strip-search of a teenage girl. You can view our blog post on that decision by clicking here. In 2007, the justices sided with an Alaska high school principal, ruling that administrators could restrict student speech if it appears to advocate illegal drug use. You can view our blog post on that decision by clicking here. The court’s full decision in the free speech case can be viewed by clicking here.

According to the AP report, Roberts told the audience there was no conflict in the court’s rulings, just clarity intended to deal with narrow issues that surface from government actions. “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad,” Roberts said. “We wouldn’t do a good job at it.”

You can be the judge of the clarity that emerges from these decisions. From my perspective, the 8-1 decision in the strip search case provided reasonable clarity and was a sound decision based on constitutional principles. The 2007 free speech case, on the other hand, was far less clear and was somewhat disturbing in terms of the curbs on free speech that were articulated. The First Amendment says quite clearly that “Congress shall make no law… abridging the freedom of speech, or of the press….” (emphasis supplied). But the Court’s 2007 decision says that you can have some laws abridging speech when that speech is reasonably viewed as promoting illegal drug use.

Student strip search ruled unconstitutional

In a surprising victory for student’s rights, the United States Supreme Court today issued an opinion ruling that the strip search of a 13-year-old middle school student Savana Redding was unconstitutional. You can view our previous posts on this case by clicking here and here. This is a very good ruling for student’s rights and upholds the principle that their rights do not end at the schoolhouse door. It further provides clarity to school district in just how far they can reasonably go in an effort to make their free of drugs.

The opinion was authored by retiring Justice David Souter, perhaps one of his last opinions as a Justice. You can find a complete copy of the opinion by clicking here.

The Court ruled 8-1 in favor of the student, finding that the mere suspicion of finding a small quantity of ibuprofen was unreasonable and did not justify the search in her underwear. In so finding, the court determined that the content of the suspicion failed to match the degree of intrusion to the student. As the Court ruled: “What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.”

The Court went on to describe the embarrassment and humiliation suffered by the student because of the search.

Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure.

The Court made it clear that searches of this nature require “the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.”

Only Justice Clarence Thomas voted with the school in the case. Justice Thomas continued his consistent opposition to such individual rights, particularly when invoked by students. In one line, he wrote “[p]reservation of order, discipline and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a constitutional imperative.”

End malpractice, not patient’s right to recovery

Earlier this week, President Obama outlined his healthcare reform plans in a speech to the AMA in Chicago. Part of the discussion is said to include more tort reform. A New York Times report says President Obama has been working behind the scenes to protect doctors from malpractice lawsuits. And former Senate majority leader Tom Daschle told the Early Show on Monday that “Tort reform is going to be on the table,” adding that there is “a clear understanding” that health costs are out of control.

This continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted (see our latest post on this topic by clicking here). Why isn’t the President focusing his efforts on curbing negligent treatment of patients? Wouldn’t safer practices eliminate lawsuits and lower premiums? Let’s shift the focus.

As Anne Woolner writes in a column in Bloomberg News): “When President Barack Obama says he wants to keep down the cost of medical malpractice premiums and improve patient care, one place to start is with doctors ensnared in multiple malpractice cases, hospitals that keep hiring such doctors and state medical boards that rarely lift a license.” If hospitals, “state medical boards and federal and state lawmakers became more vigilant and less forgiving, surely the needless maiming and killing of patients and the mammoth awards those cases bring would shrink.”

Bankruptcies could leave injured consumers out in the cold

With bankruptcy proceedings for Chrysler and GM advancing quickly, consumer groups have worked hard to ensure that Americans harmed by defective vehicles are not left out of the process. Unfortunately, Chrysler’s sale to Fiat included language relieving the Italian company from liability claims on vehicles made before the sale. The current GM bankruptcy plan could include similar liability immunity.

Last week, victims of defective vehicles went to Washington, DC to urge Congress to consider their plight while deciding the future of these corporations. Several stories ran in local and national news. You can see them on the American Association for Justice’s Dangerous and Defective Products page by clicking here.

What this means for consumers is simply that if a car owner who bought a vehicle before the company reorganization sustained injuries because of faulty brakes, Chrysler would pay for the brakes but not the medical cost of treating the injuries.

Currently, Chrysler would emerge from the controlled bankruptcy “tort free.” It would gain blanket immunity from any and all defects on millions of vehicles sold in the past several years. Those defects include seatbelts that don’t work, seat backs that collapse, vehicles that are unstable and flip over too readily, roofs that cave in, and gasoline tanks that are improperly positioned and are prone to catching fire.

You can see a number of stories about a number of consumers who would be adversely affected by clicking here.

Medical malpractice claims declining in two states

Consumer advocates say medical malpractice payouts in New York have dropped the past two years, and they are urging state officials to investigate physician complaints about rising insurance rates and automatically review doctors who make multiple malpractice payments. The study by the New York Public Interest Research Group found that “the amount of money paid for malpractice claims in New York has actually fallen in recent years, and that the number of overall claims has remained ‘remarkably stable.’”

In a blog on the New York Times website Jeremy Peters wrote, “For years, as hospitals have fought to protect the money they receive from the state, health care lobbyists have argued that the exceedingly high cost of medical malpractice insurance was a result of a runaway legal system that allowed juries to award huge judgments to victims of doctors’ mistakes.” However, “a new report from an independent government watchdog group suggests that those claims are exaggerated.” You can find more on this story by clicking here.

Meanwhile, in Arizona, victims of medical malpractice are having trouble trying to find a lawyer to pursue a claim on their behalf. As reported in the Arizona Star Daily, attorneys are becoming increasingly choosy when it comes to filing medical malpractice lawsuits — largely because doctors and hospitals usually win when the cases go to court. That has resulted in a decline in malpractice filings in that state. Ten years ago, 171 medical-malpractice suits were filed in Pima County. Last year the number fell to 65, a decline of 62 percent. In Maricopa County, malpractice suits dropped 44 percent.

NY Times exposes DME scams

In an investigative report, the New York Times released a story on the strong bias of so-called “Independent Medical Exam” (IME) doctors for insurers. The report confirms what plaintiff’s lawyers have been arguing for years: these defense medical exams, more appropriately called DME’s, are nothing but additional tools for claim denial by insurance companies.

Any time a plaintiff makes a claim for personal injuries, insurers request to have the client examined by a physician of their choosing. Prior to litigation, insurers cannot require an exam, but once a lawsuit is filed, the rules allow them to insist on having an examination. It is in extremely rare circumstances that a defense medical exam confirms an injury. On most occasions, these reports tell the insurers just what they want to hear, and the insurers in turn, deny the claims.

One doctor even admitted in the NY Times report that he cannot be truthful about injuries. “If you did a truly pure report,” he said, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

The Times reviewed case files and medical records and interviewed participants for its reports. The findings showed that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.

Like New York, several Massachusetts companies have made a big business out of defense medical exams. These companies provide lists of doctors to insurance companies, provide office space for examinations, and provide templates for doctors to fill in for the reports. In some cases, we attempt to protect the client by sending a lawyer or nurse to accompany the client to the exam. In others, we seek an audio or visual recording of the exam. Insurance companies, defense lawyers, and doctors routinely oppose these efforts at leveling the playing field.

It was refreshing to read the New York Times report which confirmed many of the problems with these tilted examinations. Hopefully, this report will lead to greater juror skepticism or greater regulation of the medical exam industry.

To see the full New York Times report, click here.

Preventable errors behind rising malpractice insurance costs

The Canadian Medical Association Journal reported: “After years of warnings from former United States president George Bush that frivolous medical malpractice lawsuits were driving doctors out of practice and inflating the cost of US health care, the weight of evidence now points to preventable errors – not misguided lawsuits – as the real source of the concerns.”

The article highlights and contains links to a number of studies that demonstrate that medical malpractice lawsuits do not inflate the cost of healthcare. In fact, malpractice insurance and claims account for, at most, 2% of US health care spending, according to the US General Accounting Office, the investigative arm of Congress.

Tom Baker, a law professor at the University of Pennsylvania, said that the “real problem…is ‘not too much litigation, but too much malpractice.’” He said, “The political debate has begun to refocus, a reflection that the real malpractice problem concerns the number of injured patients who don’t receive compensation…The political rhetoric has shifted pretty dramatically in that direction.”

You can view the full article by clicking here.

Military can’t be sued for malpractice

This week the American Association of Justice (AAJ) is highlighting the story of Carmelo Rodriguez, a soldier stationed in Iraq, who died after military doctors, negligently, misdiagnosed skin cancer as a wart. However, because of a 1950’s Supreme Court ruling that states military personnel and their families are legally prohibited from suing the government for “non-combat” related injuries, Rodriguez’s family has no legal recourse for their loss.

After Marine Sgt. Carmelo Rodriguez served his country with honor for nearly a decade, including a tour of duty in Iraq, he lost his life not on the battlefield, but as a result of preventable medical negligence. While most Americans could pursue justice through our courts, service members like Rodriguez and his family do not have this same right. The Carmelo Rodriguez Military Medical Accountability Act (H.R. 1478), introduced by Rep. Maurice D. Hinchey (D-NY), would restore the protections of the civil justice system to the men and women of our armed forces.

“It is inexcusable that our service men and women, if injured by medical negligence, are denied the same protections that all other citizens enjoy,” said Linda Lipsen, Senior VP of Public Affairs at the American Association for Justice. “This important legislation would restore these rights to these brave heroes, who risk their lives every day in service of our country.”

Upon enlisting in the U.S. Marine Corps, Rodriguez received a routine medical exam. His doctors diagnosed a blotch on his buttock as melanoma but never told him, and the military never followed up. Over the next eight years, the melanoma continued to grow until, while serving in Iraq, Rodriguez had it examined again. This time, he was told that it was just a wart and that he should have it examined upon returning to the U.S. Tragically, by then, it was too late, and Rodriguez died 18 months later from skin cancer, holding the hand of his seven-year-old son.

For the complete story and video report from CBS News, click here.