Milwaukee Personal Injury Lawyer - Medical Malpractice

Who Can Sue For Medical Malpractice in Wisconsin?

David Lowe — Thu, 16 Jul 2009 08:39:47 GMT

“Yes, this death was the result of malpractice, but there is no one with the right to sue and hold the doctor or hospital to account.”

As a medical malpractice lawyer in Wisconsin, I have had to deliver this sad and surprising news more than once to parents of an adult child who died because of medical malpractice. I have also had to inform adult children who lose a parent because of medical negligence: “Because you are adults, you cannot sue for the wrongful death of your parent. And if there is no surviving spouse, there is no one with the right to sue, and the wrong will have to go unaddressed.”

This may change. Wisconsin Assembly Bill 291, if adopted into law, would reverse two court decisions and confirm that a parent of an adult child whose injuries were the result of medical malpractice will have the right to sue for the loss of the child’s society and compansionship. The bill would reverse the 1994 decision in Estate of Wells v. Mt. Sinai Medical Center and allow a parent to recover for loss of society and companionship if the parent's adult child is injured as the result of medical malpractice. The bill would also reverse the 2000 decision in Czapinski v. St. Francis Hospital, Inc. and permit an adult child to sue for the loss of society and companionship of a parent who died as the result of medical malpractice.

The death of a child due to medical malpractice can be a grievous loss no matter at what age it occurs. Fairness demands that this bill be passed into law.

Originally posted at InjuryBoard by David Lowe

Medical Malpractice "Never Events"

Paul Jacquart — Wed, 10 Dec 2008 12:03:07 GMT

The National Quality Forum, which identifies itself as "a not-for-profit membership organization created to develop and implement a national strategy for health care quality measurement and reporting", has listed 28 medical errors as "never events", meaning they should never happen in a healthcare setting. These "never events" are printed in this About.com Patient Empowerment link. Some examples from the link are included below. Our firm has represented clients who have suffered from a number of the "never events" listed below. If you or a loved one have experienced a "never event", you should contact an attorney for advice concerning your legal rights.

Surgical Events

Surgery performed on the wrong body part
Surgery performed on the wrong patient
Wrong surgical procedure on a patient
Retention of a foreign object in a patient after surgery or other procedure
Intraoperative or immediately post-operative death in a normal healthy patient

Product or Device Events

Patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility
Patient death or serious disability associated with the use or function of a device in patient care in which the device is used or functions other than as intended
Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility

Patient Protection Events

Infant discharged to the wrong person
Patient death or serious disability associated with patient disappearance for more than four hours
Patient suicide, or attempted suicide resulting in serious disability, while being cared for in a healthcare facility

Care Management Events

Patient death or serious disability associated with a medication error
Patient death or serious disability associated with a hemolytic reaction due to the administration of ABO-incompatible blood or blood products (transfusion of the wrong blood type)
Maternal death or serious disability associated with labor or delivery on a low-risk pregnancy while being cared for in a healthcare facility
Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility
Death or serious disability (kernicterus) associated with failure to identify and treat jaundice in newborns
Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility
Patient death or serious disability due to spinal manipulative therapy

Environmental Events

Patient death or serious disability associated with an electric shock while being cared for in a healthcare facility
Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances
Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility
Patient death associated with a fall while being cared for in a healthcare facility
Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility

Originally posted at InjuryBoard by Paul Jacquart

Medical Malpractice Litigation Unlikely To Change Despite Medicare's Refusal To Pay For Hospital Errors

David Lowe — Thu, 02 Oct 2008 00:38:24 GMT

Effective October 1, 2008, Medicare will no longer reimburse hospitals for extra medical services provided because of hospital errors.

The new rule will apply to the following list of "reasonably preventible complications":

Objects left in the body during surgery (retained foreign objects)
Air embolism
Blood incompatibility
Falls and trauma
Stage 3 and 4 pressure ulcers
Vascular catheter-associated infections
Manifestations of poor blood sugar control
Deep vein thrombosis and pulmonary embolism after total knee or total hip replacements
Surgical site infections of certain types

The first three conditions are termed "never events", meaning serious preventible events.

Though Medicare sees these cases to be so straightforward that they will no longer pay for the consequences, those of us who represent patients injured by hospital and medical malpractice know that the hospital liability insurance carriers defend the cases and force the patients to litigate them. Despite what seem like obvious errors, the insurers usually argue that the patient cannot meet the burden of proof to show that the complication was caused by negligence of the hospital employee or physician, or that the negligence was the cause of the patient's injury or death.

Medicare has now created its own remedy to avoid the financial consequences of preventible hospital errors, but nothing will change for the injured patients. They will still require aggressive legal representation to obtain fair compensation.

Originally posted at InjuryBoard by David Lowe

LASIK SURGERY WARNINGS INSUFFICIENT

Paul Jacquart — Fri, 02 May 2008 08:26:34 GMT

A Food and Drug Administration advisory panel has recommended bolstering the warnings of the dangers of Lasik eye surgery, reports the Associated Press. The article explains that although Lasik surgery is successful with minimal side effects for the vast majority of patients, as many as one in four people who seek the surgery are not good candidates because their pupils are too large, or due to other issues. Nevertheless, doctors do not always reject such candidates and the patients suffer the side effects, which can be severe: worse vision, severe dry eye, glare and inability to drive at night. The FDA panel heard testimony from patients who suffered from halos, double and blurred vision and eye pain.

The advisory panel has recommended the following changes to the current warnings:

· Add photographs that illustrate what people suffering certain side effects actually see, such as the glare that can make oncoming headlights a huge "starburst" of light.

· Clarify how often patients suffer different side effects, such as dry eye. Some eye surgeons say 31 percent of Lasik patients have some degree of dry eye before surgery, and it worsens for about 5 percent afterward. Other studies say 48 percent of Lasik recipients suffer some degree of dry eye months later.

· Make more understandable the conditions that should disqualify someone from Lasik, such as large pupils.

· And spell out that anyone whose nearsightedness is fixed by Lasik is guaranteed to need reading glasses in middle age, something that might not be needed if they skip Lasik.

Hopefully, the increased warnings will make for a more informed consumer and result in fewer Lasik surgeries performed on poor candidates and a lower incidence of severe side effects.

Originally posted at InjuryBoard by Paul Jacquart

The Wisconsin Family Justice Bill: Ensuring That All Medical Malpractice Claims Are Heard

David Lowe — Tue, 15 Apr 2008 15:22:14 GMT

Once again today, I had to turn down a potential medical malpractice case for a young adult because there was no survivor of the victim who had the legal right to pursue the claim. Under Wisconsin law, if a person is over the age of 17 and dies as a result of medical negligence, parents may not bring a claim for loss of society and companionship. If the victim dies without a spouse or children, there is no one to bring a claim for the wrongful death.

Similarly, if the victim of malpractice is an elderly parent, the only person that can file a claim is the spouse of the elderly parent. If that spouse is already deceased, then there is no one to file a claim to recover for the wrongful death.

The same is also true if medical malpractice causes the death of an unmarried, widowed or divorced parent whose children are no longer minors. The surviving adult children may not bring a claim for loss of society or companionship.

Ironically, if the doctor had killed the parent in an automobile accident, a wrongful death claim could be filed. But if the death is caused by negligent conduct in the operating room, there is no claim. This makes no sense and must be changed.

Wisconsin is one of only about six states that deprive adult children of the right to bring a wrongful death claim for the death of a parent due to medical malpractice.

The Wisconsin Family Justice Bill, a measure to change this rule, is stalled in our legislature.

Not surprisingly, the Wisconsin Medical Society opposes expansion of those who can sue for medical malpractice.

The Wisconsin Association for Justice is working hard to get this legislation passed. and has expressed sound reasons why survivors of medical practice victims should have the right to sue:

Wisconsin families deserve the right to a fair and just civil remedy through our court system when a loved one is killed in a medical malpractice case. Age and marital status should not be the determining factors!

How would you deal with the awful prospect of the loss of your own 18-year-old son or daughter due to medical errors? How would you react to the fact that there is no legal recourse for the medical negligence that lead to the death of your 18-year-old child or your elderly parent?

Everyone deserves to be treated equally in Wisconsin. Our laws should not discriminate against people based on their age or martial status. Negligent health care providers in an operating room should not be treated differently than negligent car drivers.

The Wisconsin State Senate has voted to approve the legislation, and forwarded it to the State Assembly for its consideration. The bill was referred to the Assembly Committee on Judiciary and Ethics, where the legislation has stalled. Hopefully, this fall’s elections will result in the replacement of several legislators who are blocking this needed legislation, and allow justice for all victims, regardless of age and marital status.

Originally posted at InjuryBoard by David Lowe

Minnesota Hospital Admits Wrong Organ Removed

Jenny Albano — Wed, 19 Mar 2008 22:15:07 GMT

Methodist Hospital in Minnesota acknowledged that their medical staff accidentally removed the wrong organ from a patient. Dr. Samuel Carlson, chief medical officer for Park Nicollet Health Services, stated that one of the surgeons removed a patient's healthy kidney and left the cancerous one in place.

The surgery was performed last Tuesday, but it wasn't until the next day that a pathologist noticed the kidney taken from the patient was healthy. The doctor who removed the kidney - a veteran surgeon - has voluntary stopped seeing patients. Carlson says the mistake may have originated at a Park Nicollet clinic.

Wrong-site surgeries do happen, last year there were 24 in Minnesota, but removal of the wrong organ rarely happens. In the past four-and-a-half years that Minnesota has been collecting data there has not been any wrong organ removals.

Most hospitals have safety measures prevent wrong-site surgery, such as marking body parts that are being operated on before surgery and requiring a break in the operating room so surgical staff can double check documentation. Apparently standard protocols were followed at Methodist Hospital to avoid wrong-site surgery, but that was not enough. The hospital has now added another safety procedure requiring that surgeons double check MRI and CT scans before beginning surgery.

Neither the identity of the surgeon or the patient have been disclosed. It is known that the patient is still under the care of the Methodist Hospital.

Originally posted at InjuryBoard by Jenny Albano

Ritter Lawsuit Demonstrates How Medical Malpractice Caps Discriminate On Basis Of Wealth

David Lowe — Fri, 14 Mar 2008 16:22:29 GMT

After a month long trial, John Ritter's doctors were found not liable by a California jury for medical malpractice in the actor's death in 2003. The lawsuit alleged that a cardiologist misdiagnosed an aortic dissection as a heart attack, and that a radiologist failed to perform an x-ray that might have revealed the dissection, thus causing Ritter to lose the chance for surgery that might have saved his life.

A recent New York Times Magazine article by Lisa Sanders describes the challenge of making the diagnosis of aortic dissection, calling it "one of the classic difficult diagnoses in medicine. Far too often it's not even considered."

A Los Angeles Times story about the trial's outcome makes the point that medical malpractice caps discriminate on the basis of wealth: "The case highlighted the high stakes in malpractice cases where the alleged victim is wealthy: Attorney's for Ritter's family contended that with a new hit show, the veteran actor best known for his role as Jack Tripper on "Three's Company" could have gone on to earn an additional $67 million had he lived."

The family has already received more than $14 million in settlements form the hospital and eight others relating to the malpractice claim. The family was seeking more than $67 million from the remaining defendants. Whether they would have received this exact figure if they had won the case we will never know. But the family certainly would have received a large award because Ritter had a track record as a successful actor, and was in the starring role of the first season of new TV series entitled "8 Simple Rules for Dating My Teenage Daughter."

We regularly review cases in which there is merit to the claim of medical malpractice, but statutory caps on the amount a family can recover preclude pursuing the case because the victim was either retired, in a low paying job, or unemployed. Typically, there is either no cap or a high cap for loss of income, but unfairly low limits for loss of companionship. The expense of devloping the case may approach the maximum a victim's survivors may recover for the loss of companionship, making the cases uneconomical to pursue. Of course, that is the reason that the health care industry and its insurers urge the adoption of caps. If it were not for the potential of a large verdict for loss of future income, the Ritter family may not have received the settlements they already obtained, and may not have secured the excellent legal team that fought so hard for them. Caps on the recover of damages for medical malpractice result in this kind of inequity.

Originally posted at InjuryBoard by David Lowe

Decline in Medical Malpractice Cases Has Brought Down Malpractice Insurance Costs

David Lowe — Fri, 14 Dec 2007 14:20:06 GMT

Another story today adds to the mounting evidence that medical malpractice suits are in decline and that medical malpractice insurance costs are headed downward.

In Baltimore, Maryland, a consent order settlement has been reached between the State and the largest medical malpractice insurance carrier, Medical Mutual Liability Insurance Society, which will result in the return of excess medical malpractice premiums of nearly $100 million charged since 2005.

In 2004, Med Mutual raised malpractice rates by 28-33%. Doctors rallied in Annapolis in protest, resulting in an emergency legislative session during the Christmas week of 2004, which resulted in the creation of a special state subsidy. Now it turns out that the forecast of increasing lawsuits and litigation payouts was overblown, and Med Mutual, which had received about three-quarters of the money paid out, has agreed to return about $72 million and forego about $12 million in subsidy this year. Another $14 million will be credited to physicians Med Mutual insures.

Forbes' online story about the settlement quotes the Maryland insurance commissioner, Ralph Tyler, attributes the decline in medical malpractice lawsuits were dropping, due to"improved practices by health-care providers, legislative reforms and the cyclical nature of the insurance industry."

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

Originally posted at InjuryBoard by David Lowe

Milwaukee Hospital Warns of Brain Disease Contamination

Paul Jacquart — Fri, 14 Dec 2007 13:43:39 GMT

Froedtert Hospital has issued a warning to nearly 100 patients who underwent surgery this week that they may have been exposed to a rare, fatal brain disease spread by surgical instruments. It was discovered that another patient who had surgery this week may have Creutzfeldt-Jakob disease, part of a family of prion diseases, which include mad cow and chronic wasting disease. It is thought that this disease may be transmitted by eating brain or nerve tissue from infected cows. Cruetzfeldt-Jakob has been known to survive on surgical instruments even after they have undergone ordinary sterilization procedures.

The hospital does not believe that if the patient is a carrier that it is likely to have spread to other patients, but felt it necessary to issue the warning. A state epidemiologist has stated: "This poses no risk to the public at large, and assuming the patient has CJD, which is not a given, the risk to the people on whom the instruments were used is very minimal."

Unfortunately for those who received the warning, there is no quick fix or simple test to check to see if the disease has been spread. Symptoms of the disease might not appear for years or even decades and the only definitive test for the disease requires brain tissue samples. Hopefully, incidents such as this will lead to advances in sterilization techniques for surgical instruments.

Originally posted at InjuryBoard by Paul Jacquart

Medicare Data on Doctors to be Shared

Paul Jacquart — Thu, 30 Aug 2007 16:37:58 GMT

A recent U.S. District Court ruling may help shed some light on doctors' experience levels in their respective disciplines. The L.A. Times has reported that the ruling, which resulted from a consumer group's lawsuit to open up the Medicare database, may result in the release of files and billing information for 700,000 doctors. This information could be used to track doctors' performance and experience levels. According to the article:

Those files could reveal far more than how many times a year a surgeon performs a hip replacement operation. The data could also be analyzed to determine how a doctor makes crucial decisions on tests and procedures that determine both quality and costs. They would show which doctors fail to order prudent preventive tests. And they could indicate which ones order duplicative tests or unnecessary hospitalizations.

Hopefully, the Medicare data can be synthesized in such a way that it will be accessible and comprehensible for consumers so that they can make informed decisions based on a physician's experience level and rates of error for various procedures. Given the current lack of transparency for data concerning physician experience, this type of information should be helpful and may reduce repeat medical errors and incidents of malpractice by rewarding physicians with good track records with increased business. The Medicare data could be useful to establish informed consent for patients seeking information about a particular procedure. Some court decisions (such as the Wisconsin Supreme Court decision Johnson by Adler v. Kokemoor, 199 Wis.2d 615, 545 N.W.2d 495 (1996)) hold that a patient's informed consent may require a surgeon to disclose his experience with a procedure and the availability of specialists with greater experience. It is uncertain at this point whether the Department of Health and Human Services will appeal the ruling, or how and when the data may be made available to the public.

Originally posted at InjuryBoard by Paul Jacquart