Imagine this scenario: You walk into your doctor’s office for a routine exam. You are handed a stack of papers to fill out. Nothing unusual, right? Wrong! Included in that stack is a legal document stating that you agree to give up your right to file a lawsuit if the doctor is negligent and, instead, you agree to binding arbitration. This couldn’t happen in America, right? Wrong.As reported recently in the St. Petersberg Times, an increasing number of doctors, particularly obstetricians, are requiring their patients to sign binding arbitration agreements or they will simply refuse to treat them.You don’t go into a doctor’s office and expect to be making legal decisions, you expect treatment from a compassionate, caring, skilled and ethical physician. If your physician is trying to get you to waive your rights, before you or they know if anything has occurred, and without consulting an attorney, then that physician is not ethical. Patients have a constitutional right to seek redress for injuries caused by negligence.If you are faced with one of these waivers, I suggest you politely ask the doctor to guarantee, in writing, that he will not be negligent in his treatment of you. If he won’t do that, then you shouldn’t agree to arbitration.
A Missouri medical insurer has announced that it will no longer pay hospitals for certain types of medical errors, such as performing surgery on the wrong part of the body or leaving objects in the patient after surgery. This new policy has been reported in the St. Louis Post Dispatch and Forbes.By setting this policy, Anthem Blue Cross Blue Shield has effectively declared that certain occurrence, which they refer to as adverse events, are clearly the result of medical malpractice and that they, the insurer, shouldn’t have to pay for that malpractice. Included in the list of adverse events is:
While this may seem like a good idea for the insurer, the question for patients who have been the victim of such medical negligence, is: “If my insurer doesn’t pay, then who will?” In nearly twenty years of representing victims ofmedical malpractice, I can confirm that the list above covers a good portion of the common types of medical malpractice cases prosecuted. However, in nearly every case, the doctors and hospitals have defended cases that arise from these types of mistakes, and have defended them vigorously. If the medical insurer doesn’t pay, the patients, will be dealing not only with the problems created by the mistake, but by the bills generated by those mistakes. And often, the doctor or hospital who caused the mistake, is only the first in a long line of treaters who will work to try to correct the mistake. After a severe medical mistake, patients will often (and correctly so) seek treatment from a different doctor or hospital to diagnose and treat the injuries resulting from the medical malpractice. Those secondary treaters haven’t done anything wrong, and the patient needs the treatment. If Anthem Blue Cross Blue Shield refuses to pay those secondary health care providers, the victims of medical malpractice will be victimized again, and again.While the attempt to improve patient safety is certainly laudable, this may not be the best course for the patient. The risk of causing more harm to those already harmed by clear malpractice is simply too great.
In twenty years of practicing law, I’ve learned that most people do not understand their auto insurance coverage. This short article is an attempt to clarify some basic auto insurance issues.There are two types of auto insurance coverage that are mandated by Missouri law: Liability and Uninsured Motorist. Liability insurance is to protect any person who you may injure or who’s property you may damage from your negligence. Uninsured Motorist coverage is to protect you in the event that someone without insurance injures you or damages your property. Between the two mandated coverages, the victim of negligence will likely be covered by some form of insurance.The other common form of auto insurance is commonly referred to as “full coverage.” Full coverage is simply shorthand for having insurance coverage for damage to your vehicle, regardless of who is at fault. Even if you, the insured, cause an accident, with full coverage your vehicle damage will be repaired.Less common forms of insurance coverage are probably the least expensive and most beneficial to you in the event you are injured in an accident. Medical Payments or Med Pay coverage is, in effect, a health insurance plan for any passenger or driver of your vehicle injured in an accident. Usually sold in smaller limits, from $1000 to $10,000, it is usually only a few dollars per six month policy. This protects you and your passengers and is in addition to any health insurance you may have.Underinsured Motorist coverage protects you and your passengers in the situation in which you are injured by a driver who has insurance, but at the minimum or lower amounts. For example, if you are injured by a driver with the minimum $25,000 coverage, and you have Underinsured Motorist Coverage, you can collect for injuries that exceed the $25,000 minimum. Like Med Pay, the cost is low for the coverage. To protect you and your passengers, your Med Pay, Uninsured Motorist, and Underinsured Motorist coverages should be as high as you can afford.If you have been in a motor vehicle accident, call our office for a free consultation.
Anderson Cooper 360?will air “Operating under the Influence” tonight, March 31, 2008, at 10pm, eastern. The advertisements for the show indicate “imagine undergoing the knife, while your doctor is undergoing treatment for addiction!” Unfortunately, a number of my clients don’t have to “imagine” that consequence.I have a number of cases in which a physician’s addiction is an issue. In one, within days of operating on my client, the physician tested positive for cocaine use. Only after the patient suffered a horrible complication did he learn that his surgeon had returned from rehab only a few days before operating. And worse yet, the hospital was aware of the stint in rehab and had not provided for drug testing before allowing the surgeon to return to the operating room and had not required that the surgeon be monitored by another surgeon in surgery.This type of negligence, on behalf of both the addicted doctor and the hospital, is clearly inexcusable. All hospitals have, or should have, in place policies and procedures to detect and monitor impaired doctors, nurses and other staff.I’ll watch “Operating under the Influence” tonight with interest. For more, see AndersonCooper360
In recent weeks, 2 celebrity medical malpractice cases have brought medical negligence to public attention. Unfortunately, usually the only thing that the public hears about medical malpractice is the constant harping on so-called “frivolous lawsuits.” However, these recent cases highlight the fact that most medical malpractice case filed by experienced malpractice attorneys, win or lose, are not “frivolous” cases.
Actor Dennis Quaid’s wife gave birth to twins recently. Shortly after birth, the children nearly died when staff at Cedars-Sinai Medical Center in Beverly Hills gave the twins adult doses of a blood thinner, Heparin. Rather than give a pediatric formulation, they were given an adult formulation of heparin. As Dennis Quaid has described, “it basically turned their blood to the consistency of water” and it could not clot. What makes the mistake even worse, the hospital did not notify their parents of the mistake. An interview with Dennis Quaid will be featured on 60 Minutes to air on Sunday.For those of us who prosecute medical malpractice cases, the allegations Dennis Quaid makes in a lawsuit filed on his behalf fit a consistent pattern we see over and over. Medication mistakes are common. We routinely see either doctors prescribing the wrong medication or nurses administering the wrong medication or in the wrong dosage. And the “cover up” is seen again and again. We often even see cases where the negligent doctors aren’t even told of the complication, because the patient’s care has been transferred to another doctor.
In another case that has been in the news recently, actor John Ritter’s widow filed suit against physicians who allegedly failed to diagnose an aneurysm. Ritter died when an aortic aneurysm ruptured. An aneurysm is an abnormal enlargement of a vein or artery, in this case the aorta, a large artery in your abdomen. News reports last week emphasized that a jury found in favor of the physicians in Ritter’s widow’s suit, however, lost in the details was the fact that eight other doctors and Providence St. Joseph Medical Center in Los Angeles paid $14 million dollars in settlements before trial. In effect, only the most difficult liability aspect of the case remained. And even then, the jury split 9-3.Abdominal aortic aneurysms are absolute medical emergencies. Failure to timely diagnose and treat this condition can be negligence. Only a thorough review of the facts and medical records will determine whether or not medical negligence has occurred.Source: Reuters.com, March 16, 2008, and CNN.com, March 14, 2008.
On March 5, 2008, the FDA announced that approximately 20% of the heparin samples tested from Baxter Healthcare Corporation were contaminated. Heparin is a drug thinner that is in common use. The contamination apparently occurred in the manufacture of heparin ingredients imported from China. Baxter has initiated a recall.
A number of complications and side-effects associated with the contaminated heparin have been reported, and include: abdominal pain, decreased blood pressure, chest pain, diarrhea, vomiting, increased heart rate, and other conditions.
Baxter has released an update of its recall of the heparin sodium injection. We have learned that this form of heparin is used almost exclusively during dialysis, invasive cardiovascular procedures and surgery and apheresis. Complications have included refractory hypotension (low blood pressure). This is a life-threatening condition and may lead to organ damage, shock, organ failure and death.
If you believe that you or a loved-one have been injured by contaminated heparin, please contact attorney Todd N. Hendrickson immediately. We can discuss your case and determine if you have a claim.
This is usually a question I get at some point from every client. Some people ask the question in the first meeting, or even during our first phone call. Some don’t ask the question until we are well into the process. But at some point, everyone wants to know, just how long is this going to take? The simple answer, is we usually don’t know. A lot is dependent upon scheduling matters with the court and all the attorneys involved and in some cases that is easier than in others. But he process follows the same general course:
INVESTIGATION: An experienced medical malpractice attorney will engage in extensive investigation of your claim before the case is ever filed. This will include obtaining all relevant medical records concerning the alleged negligent medical care as well as relevant medical records before the incident to establish the patient’s medical condition before the negligent care. It is vitally important that you provide your lawyer with a complete list of all medical care providers: doctors, hospitals, therapists, home health care, etc. These records form the basis on which any successful case is built. Your attorney will first review the medical records, in depth. If he feels that you may have a viable case, he will then have those records reviewed by appropriate specialists in appropriate fields. This step is vital. Both Missouri and Illinois require that the attorney file an affidavit that the case has been reviewed by a qualified physician who has given the opinion that the medical care rendered did not meet the standard of care. Without an appropriate affidavit, the case will be dismissed. Therefore, an expert’s opinion is a requirement for the case to proceed.
FILING: The actual lawsuit is started by your lawyer filing a Petition or Complaint in an appropriate court with jurisdiction. The Petition or Complaint is usually accompanied by an sworn statement confirming that a qualified physician has reviewed the case and has found that negligence has occurred.
Once the case is filed, Summons, or an order to answer, will issue to the various defendants. This is the official notice of the suit that is served on the defendants. In response, the defendant will usually notify his or her insurer who will retain an attorney who will file an Entry of Appearance and an Answer or other responsive pleading.
DISCOVERY: Once preliminary motions and filings are complete, the parties engage in “discovery.” Discovery is the fact-finding process by which attorneys for plaintiffs and defendants formally investigate the claims and defenses of the case. This will include written discovery, such as interrogatories (written questions), requests to produce documents and/or things, and requests to admit certain facts. The various parties must answer all these forms of written discovery under oath. Discovery also includes depositions. Depositions are formal proceedings in which parties and/or witnesses are sworn under oath and the attorneys involved in the case are given an opportunity to question the witness. These proceedings are always recorded by a court reporter that will prepare a written transcript of the questions and answers. This transcript can be used at trial in different ways depending upon the particular state rules. In every court, the transcript can be used to “impeach” a witness if he or she gives a different answer at trial than in their deposition. In some jurisdictions, like Missouri, the transcript can be read into evidence. If the deposition has been video recorded, the deposition can be played for the jury as evidence.
MEDIATION: Either by court order, or by agreement, the parties may agree to mediate the case at some point before trial. Mediation is an informal process where both sides meet with a mediator, a neutral person, usually an attorney. The mediator works with the parties to try to reach an out-of-court settlement. If successful, the case ends at this stage. Of course, the parties can agree to a settlement without the need for mediation, although in medical malpractice cases, mediation is a common means of resolving meritorious cases.
TRIAL: If the parties cannot agree to a settlement, the case will be tried, usually to a jury. The number of jurors, 6, 9 or 12, depends upon the jurisdiction. In some jurisdictions when 12 jurors are used, the decision does not have to be unanimous; instead, 9 jurors must agree on the verdict. The jury’s job is to decide issues of fact. The judge’s role is to make legal rulings. The trial will proceed through the steps of jury selection, opening statement, plaintiff’s case, defendant’s case, rebuttal, closing arguments, jury instruction and jury deliberations. Once the jury reaches a verdict, the judge will, in most cases, enter that verdict as a judgment. Either party may file post-trial motions challenging the verdict. Once the judge has ruled on these motions, the judgment is final. Once the judgment is final, either party may appeal the decision for any one of numerous reasons. However, most successful appeals are based upon assertions that the judge has made an error in a legal ruling, not simply that the jury’s decision was wrong.
The entire process, from beginning to end, can take several years and cost thousands of dollars. Because of this, an experienced lawyer will carefully screen cases, proceeding only on cases that he believes are supported by the facts and the law.