Author Archive

This is a test

June 6, 2010

here is a link to our website to see if this works when I hit publish.  http://nashandassociates.com

Advertisements

Woman undergoes mastectomy only to learn a week later, she never had cancer. Now another patient of same doctor claims the same fate.

June 4, 2010

The Vancouver Sun reported that in 2001, Dr. Barbara Heartwell of the Hotel Deiu Grace Hospital in Windsor, ON performed an unneccessary mastectomy. Janice Laporte was the victim of Dr. Heartwell’s disfiguring mistake.

Ms. Laporte underwent a mastectomy in September of 2001 , and was told just one week post-operative that she never had breast cancer. Ms. Laporte’s case details are protected by a confidentiality clause; her case was settled soon after filing suit in 2002. Ms. Laporte told the Canadian Press, after a second patient came forward:

“It’s bad enough to have to be told you have cancer or to have a mastectomy,” she said.

“That is devastating enough, but then to hear that it was done for no good reason just compounds everything.”

“At least things are being looked in to now,” she said. “It’s unfortunate that this has to happen for them to look into this kind of stuff.”

The second woman who allegedly fell victim to Dr. Heartwell’s “mistaken diagnosis” is Laurie Johnston, a middle-aged single mother of a teen daughter. Ms. Johnston claims she underwent an unneccessary mastectomy in November of 2009.

Ms. Johnston has filed suit with similar accusations to those of Ms. Laporte. “Heartwell performed ‘dramatic, disfiguring and invasive surgery’…” Since filing suit, Ms. Johnston has also taken her case public.

Hotel Deiu Grace Hospital claims it became aware of the lawsuit when a reporter inquired about details of the case. The hospital has since launched an investigation into Dr. Heartwell’s cases. Dr. Kevin Tracey stated during a news conference with the Canadian Press that:

“During the course of our investigation she indicated that in our review of her past cases we would find additional cases of concern”

Apparently, these “additional cases of concern” caused the hospital to widen it’s investigation to include over 10,000 pathology reports  which were completed by Dr. Olive Williams.

Dr. Williams’ privileges were suspended in January; Dr. Heartwell voluntarily stopped operating in the early weeks of March. Both physicians have been reported to the College of Physicians and Surgeons of Ontario.

To prevent further such tragic events as happened to Ms. Laporte and ostensibly Ms. Johnston as well, a pre-surgery safety checklist was implemented into hospital practice in April. Deb Mathews, Ontario’s Health Minister, claims that of the items on the checklist, review of biopsy results are required prior to administering anesthesia.

A Windsor lawyer, Harvey Strosberg, predicts that Ms. Johnston’s case will never see the inside of a courtroom. Her case is strong and he predicts that she will likely reach a settlement agreement.

Simply put – it SHOULD never see ‘the inside of a courtroom. How tragic!

Yamaha Rhino goes to court in Georgia – not happy with verdict!

June 3, 2010

When the weather is warm, outdoor activities are the amusement. Expecting them to end in injury usually isn’t the case!

In Gwinnett County, GA, Roger McTaggart was injured in 2007 while riding his Yamaha Rhino recreational utility vehicle. Mr. McTaggart and his wife, Glenda, sued Yamaha Motor Corporation USA, which happens coincidentally to be located in Gwinnett County.

The McTaggart’s case is just one of over 100 cases that allege the Rhino recreational vehicles are unsafe. The Rhino vehicles are alleged to have latent stability defects which cause the vehicles to unexpectedly roll over.

Similarly, the McTaggart’s claimed early in their case that the stability defect caused Mr. McTaggart to unexpectedly roll his vehicle at a low speed and on relatively flat ground.

McTaggart was driving his Rhino and stopped the vehicle. He then starting going forward again and turned the steering wheel to the right, “and the Rhino tipped onto the driver’s side, trapping his leg under the vehicle,” according to McTaggart’s complaint.

McTaggart sustained a “crush” injury in which the “skin exploded” and bone was exposed, Childers said.

Mr. and Mrs. McTaggart also argued that the recreational vehicle should include a barrier which would keep the rider’s legs inside the vehicle. Yamaha rebutted the argument, claiming that doors for the vehicle were produced and added three the four months after Mr. McTaggart’s leg injury.

During the two week trial, all experts, including plaintiffs, concluded that the accident could only have happened while Mr. McTaggart was riding on a side incline, not on an relatively flat and uneven surface. Counsel for the McTaggart’s focused arguments on the fact that had the vehicle contained doors,  Mr. McTaggart’s legs would not have been injured when the unexpectedly vehicle rolled over.

After 10 hours of deliberation, a Gwinnett County jury awarded $317,002 to the plaintiffs. Compensation included pain and suffering, medical expenses, lost wages, future lost wages and loss of consortium for Mrs. McTaggart. The plaintiffs’ attroney, Andrew Childres, claimed that the jury was swayed by Yamaha’s lack of performance testing on the Rhino recreational vehicle, with particular focus on “occupant containment”.

Yamaha claims that the company is upset by the verdict and there is a chance for appeal in the Gwinnett County case. The well known motor-sport company further states:

[We are]…saddened whenever anyone is injured in a Yamaha product-related accident, and we urge all our customers to follow the safety recommendations on our products and, as importantly, to always operate the products in a safe and responsible manner.

As we enter the summer months, it is important to remember that safety is the number one key to outdoor activities. When operating motor vehicles, of any kind, be sure to heed all safety precautions to ensure safe amusement.

Fertility Clinic Makes Expecting Mother an Accidental Surrogate

June 2, 2010

Couples all over the nation find that they are unable to conceive naturally and must turn to fertility clinics for help. No couple expects that when they learn they are going to have a child, it’s not going to be their own! This was the sad reality for Carolyn and Sean Savage of Sylvania, OH, as reported by the New York Post.

After many miscarriages and heartbreaks, the Savage’s finally turned to in-vitro fertilization in 2009. Carolyn soon learned that the process had worked, but was told that it would be her last pregnancy due to prior complications.

Nearly 100 miles away, Shannon and Paul Morell of Troy, MI were also employing in-vitro fertilization as a means of adding an addition to their family. They would soon receive the devestating news that their embryo’s had successfully been implanted… but within Carolyn Savage.

…they got an urgent call from their fertility doctor.

“Yes.”

“I’m so sorry, Shannon, but there’s been a terrible incident in our lab,” he said. “Your embryos have thawed.”

But it didn’t end there.

“Your embryos were transferred to another woman,” the doctor said.

Shannon was stunned. “Is she pregnant?” she managed.

“Yes.”

Shannon, whose maiden name was Savage, had lost her embryos to Carolyn and Sean Savage. The lab accidentily filed the Morell’s embryo’s in Shannon’s maiden name, and provided them to another couple.  Carolyn Savage had been robbed of the chance to ever carry her own child again.

Having also been informed of the mix up, Carolyn Savage was presented with two options: she could terminate the pregnancy or carry the child to term and give it to it’s biological parents after the birth. Due to strong religious beliefs, Carolyn decided to carry the baby to term and return it to it’s parents afterward.

The Morell’s and the Savage’s agreed to a formal meeting April 27, two months into the pregnancy. Carolyn and Shannon agreed to remain in contact throughout the pregnancy and decided upon the name, Logan, once the baby boy’s gender was confirmed.

On September 24, 2009, baby Logan Savage Morell was born at Mercy St. Vincent Medical Center in Toledo. Shannon and Paul drove to the hospital immediately after hearing that Carolyn was in labor, still saddened that another woman was giving birth to their baby boy.

“I wouldn’t say jealousy, but there was sadness that I couldn’t be there for my son and experience the first moments of his birth. And there was guilt that another woman was happy to go through a C-section for me,” Shannon said.

The arrival of baby Logan presented many emotions for both the Savage and the Morell families. The Savage’s made it clear early in the pregnancy that they expected nothing more than a few updates throughout Logan’s life.

“Of course, we will wonder about this child every day for the rest of our lives, and we have high hopes for him,” Carolyn said. “But they’re his parents, and we’ll defer to their judgment on when or if they tell him what happened and any contact that’s afforded us.”

CNN interviewed both Carolyn and Sean Savage; the couple revealed their feelings regarding the entire experience.

Since Logan’s birth, the families have remained in contact. Over Christmas, the Morell’s and baby Logan made the 100 mile journey to visit the Savage’s so that baby Logan could finally be introduced to his surrogate family.

Shannon Morell acknowledges that the Savage’s will always have a role in Logan’s life.

“I think for the rest of his life, he should always acknowledge [Carolyn], on Valentine’s Day, Mother’s Day. He should always think of her because if she hadn’t done the right thing, he wouldn’t be on this earth,” Shannon said.

The couples hope to one day be able to explain the complicated story of how Logan came into his wonderful existence.

So what happens now? The Savages’ still have five frozen embryos; unfortunately, Carolyn will be unable to carry another child. The couple is looking into a gestational carrier in hopes to still make an addition to the family.

In-vitro fertilization has led to over 40,000 successful live births since it’s first record of success in 1978. When learning of success, can you even imagine the emotional effects of being told that your success will result int he birth of someone else’s child? What further actions can be taken to prevent these ghastly mix ups?

Confidential Settlement Agreements: Which should win – privacy or right-to-know?

June 1, 2010

Understanding the term – ‘confidential settlement agreement’ – is the easy part. What’s the ‘sticky wicket’ of this ever-growing form of  settlement agreement? – the conflicting interests of the parties’ privacy concerns versus the public’s right to know.

Let’s start by providing you with the somewhat typical, generic language used (in some form or other) of such provisions in a settlement agreement:

Confidentiality:  The Releasing Party (Releasor) agrees that neither he nor his attorneys shall reveal to anyone, without prior written consent of the Party Being Released (Releasees), the facts or any of the terms of this Settlement and Release Agreement. Releasor will not disclose the identities of the Releasees, whose conduct was the subject of this lawsuit.  It is further understood and agreed to by the parties to this Settlement and Release Agreement that no part of this non-disclosure agreement shall be construed to prohibit counsel from making reasonable and necessary disclosures to carry out the administrative and ministerial tasks incident to this settlement.

Needless to say, these can be quite specific and many times are aimed at prohibitions of disclosure of not only the fact of settlement but also any specificity regarding the identity of the settling party and the amount of the settlement – basically prohibitions against disclosing any identifying information to the public and even more specifically to any form of media outlet. It’s one thing for Client Jones to tell his neighbors that he just settled his lawsuit for thousands or millions of dollars; it’s quite another when a settling doctor or hospital sees their name splashed across the print or online headlines of local media outlets.

The Settling Defendant’s Interests:

This is perhaps the easiest  to understand from the viewpoint of the person who agrees to pay settlement monies to the plaintiff who sued them. In the context of medical malpractice cases, no health care provider, especially a physician, wants their good-name/reputation tarnished by news of having settled a malpractice case. Since the reasons for agreeing to a settlement might be avoidance of a verdict  in excess of  the physician’s malpractice insurance, it could be argued that in such instances it is simply not fair to broadcast the fact that the physician settled because they knew they had done something wrong which hurt one of their patients. Keep in mind, that in settlement agreements there is usually a statement that the settling party – e.g. the physician sued for medical malpractice – denies all allegations of wrongdoing.

That being said, what about those instances – which are not the minority in our case load – in which the conduct of the health care provider does constitute a violation of the standard of care – aka medical malpractice/negligence? Why shouldn’t the public be aware that Dr. Smith did render bad care that caused serious harm? Was this just a ‘bad day’ for Dr. Smith in the operating room or  office or a pattern of poor care? Doesn’t the public have a right to know this?

Dr. Smith’s counsel will argue, as trained to do, that there is a defense to every case. In my 35 years of experience, this is often the case. Some defenses are better than others; some are flat out lame. Can’t the public decide on their own? Don’t they have a right to make that judgment? Some would argue they don’t since they don’t possess the expertise to understand the many nuances that go into these settlement decisions. Are they right? It seems you will never get the chance to decide since you will never know about what happened due  to confidentiality agreements.

The Plaintiff-Patient’s Interests:

It is unfortunately the case that when a number of our client’s wins a large amount of  cash in settlement or verdict, they fear their past and present friends and relatives will then come out of the woodwork. I liken it to professional sports figures whose coterie of friends are at  best ‘hangers-on’ for the money and good times.

People who have had to relive tragedies in their lives don’t want the pubic to know for a multitude of reasons.  We have represented people whose parents didn’t even know (and to this day don’t know) that they had been in a lawsuit and even gone through a trial! We have always respected the client’s right to privacy. Does that trump the public’s right to be informed?

The Plaintiff Lawyer’s Interest:

What interest could the lawyer possibly have? – you ask. Since this is my bailiwick, permit me to answer the question – marketing. Have you had occasion to visit the websites or print media advertisements of any plaintiff lawyers recently. If you have, I suspect you have seen the crawl or large font posting of verdicts and settlements blasted across the screen/page. If you have a confidentiality provision, this probably should not be the situation. I say probably because some lawyers insist that the right to publicize ‘anonymously’ be  crafted into the confidentiality agreement. Many likely do not have this ‘exception’ language but seem to have amnesia when it comes to this provision.

If you look at our website, you won’t see this form of advertising/marketing. Does this mean we haven’t settled a number of cases for large amounts of money for our clients? Hardly. Since the beginning of this year alone, we have settled a number of cases for millions of dollars, with the likelihood of many more  to come – God willing! We have elected to respect our client’s  right to privacy on the one hand. We have also determined that in some instances there will be no settlement if we put our firm’s interests of marketing ahead of the client’s ability to obtain a settlement, when the defendant is demanding confidentiality.

Do we have news accounts of past verdicts on our website? We do. Those cases went to trial and were deemed newsworthy enough by local media to report on the verdicts regardless of our position on marketing. They were in the public domain; we took the marketing advantage. Hey, we’re just being lawyers. Have these cases gone to appeal or settled post-verdict? You’ll never know.

Have we settled cases for millions of dollars?  Well, you’ll never know that either. We do understand our client’s rights to privacy and right to  have their interests in obtaining a settlement ahead of our marketing interests.

So what is the answer?:

From the viewpoint of the advocates of the public’s right to know, they can effectively argue in most instances that the client doesn’t have a privacy right once a lawsuit is filed. This is a matter of pubic record. Anyone can go to the courthouse in your county or state (in the case of the District of Columbia – the Superior Court) and ask to see the court files – absent an order sealing a record, which is by far the exception rather than the rule. Even in situations where a case settles under a confidentiality agreement, if one looks at the court docket of any given case, you can trace the history of a lawsuit. When you see a dismissal, do you not understand that absent the case being dismissed in favor of a defendant on motion or by court order for failure to prosecute, the case most likely settled? What happened to the non-disclosure of the fact of settlement or the likely parties to the settlement?

Are there other means to determine if a medical malpractice case has settled? If so, for how much? Well there are and there are not. Were you aware that whenever a doctor settles a lawsuit he/she is reported to the National Practitioners Data Bank? Well, all the information one could ever want is stored there, but the public has no access to this data bank – at least in terms of getting information as to a specific healthcare provider. The following is the express statement on the NPDB’s FAQ page:

The Data Banks are prohibited by law from disclosing information on a specific practitioner, provider, or supplier to the general public. However, persons or organizations may request information in a form that does not identify any particular healthcare organization or practitioner for research purposes.

Well, there goes that potential source of right to know.

What about the local state licensing agencies?  Let’s take Maryland, for example. The entity that controls the licensing and disciplining of physicians in the state is known as the Maryland Board of Physicians. It also has a website, which, quite  frankly, is much more transparent and informative than many and certainly more informative than the NPDB. By going to the “Search Practitioner Profile” link, you can type in a doctor’s name and find out, among other things, if there has been any disciplinary action against that physician for the past ten years. Maryland should be applauded, in fact, for its access to information on physicians. Could it do more, perhaps. That’s for another day.

In the District of Columbia, did you know you can access similar information? I invite you to undertake this exercise. Don’t be thrown-off when you do your Google, MSN or other search engine inquiry and see the District of Columbia Board of Medicine, but then you find you have been linked to the California Department of Consumer Affairs – for the Physical Therapy Board of California. Must just be a broken link! Transparency may also have a different definition in D.C.

In many of our posts we urge our readers to be informed consumers when it comes to their healthcare. Is one of the ways to become educated about your doctor or the hospital to which you planned to be admitted the  ‘best’ or ‘right’ healthcare provider for you to do such a search? We think so – at least in part. Being sued or even settling a case does not necessarily mean a physician or hospital is a bad doctor or a bad hospital. It may, however, particularly in the case of the physician, be a place you may care to start your query.

So, what is the public’s right to know in terms of confidential settlement agreements? Does the public’s (i.e. your) right to know trump that of the patient/plaintiff or the healthcare provider/defendant? Should there be a restriction on the use of these agreements – even if that also means a prohibition on the lawyer’s right to publish these settlements on their websites or ads?

I encourage and welcome your thoughts and comments. Please take a moment of your time and share these with our community of readers.

Why don’t patients ask questions of their doctor?

May 31, 2010

My wife came back from a doctor’s appointment the other day, and immediately, I noticed that she looked puzzled and somewhat confused. So, I asked her about her appointment.  She went over her discussion with the doctor as I kept probing with questions about their conversation.  I found myself asking the following question more than any other: “Well, did you ask him about…?” Before too long, doing what I do for a living, I could not help but wonder why patients aren’t more inquisitive. Is there something about the patient-doctor relationship that makes patients not want to ask questions of their physicians?

Surely, the primary responsibility for gathering information about the patient’s medical conditions is and should be with the physicians. After all, their knowledge of medicine is vastly superior to that of the average patient. Still, when a patient has questions, there is often no good reason not to ask them. Consider a physician who orders hormone replacement for a female patient with a history of blood clots or hypercoagulability of which the physician is unaware. Consider another patient who develops a series of complications after a surgical procedure but who decides to tough-it- out and not ask any questions during follow-up appointments with the physician. In both of these examples, the patient risks developing potentially life-threatening conditions, and, if the patient knows or suspects that possibility for whatever reason, it is probably not a good idea to assume that the doctor will be the one to ask the right questions. So, why are patients sometimes reluctant to ask more questions about their medical care or condition?  I don’t presume to know the answer, but I suspect, in part, it has to do with the patient’s expectations.

For example, when I am pain, I don’t really want to have an extensive Q & A session with my doctor. I just want treatment!  It is simply mentally relaxing to just let go and have someone else take care of me. In addition, my knowledge of medicine is superficial at best. I don’t feel comfortable asking questions if I don’t know what I am talking about. My ego would rather have me in pain than allow me to question a doctor at the risk of looking like a fool.

On a subconscious level, I am probably also dealing with preconceived notions about doctors.  As long as I can remember, I have been told that doctors are intelligent and in control. After all, who else is capable of getting into medical school and then have the stamina to survive some seven to ten years of medical training? All of this makes me think that my doctor can only make the right decisions about my medical care. And then there is the medical office or the hospital. The smells, the patients (most with problems far worse than I have), the complicated machines that look like they belong in a sci-fi movie don’t exactly add-up to a familiar, comfortable environment.  I am in pain, uncomfortable, and somewhat intimidated – not exactly an environment conducive of critical thinking.

Well, if this is how other people feel, I think that might explain why patients are sometimes not as inquisitive as they should be.  What do you think?  If you are a patient or a physician, your feedback is much appreciated. Of course, everyone is welcome to comment.

Contributing author: Jon Stefanuca

Editor’s Note: This piece was written by Jon Stefanuca. My own wife has an advanced degree in pathology, did surgical pathology and autopsies. She DOES ask questions! Do you really need a medically-related degree, however, to ask the basic questions so that you have a clue what you’ve just agreed to by way of medical care? I think not. Moral of the story: be your own patient advocate! If you need help, then have a family member or a close friend accompany you if you have any doubt.

Baltimore: After police officer accidentally kills bystander, settlement reached but terms confidential

May 31, 2010

A Rosedale woman, and mother of two, was killed when a Baltimore County police officer accidentily side-swiped her 1997 Mercury Tracer.

Bonnie Pappas, age 45, was traveling across Pulaski Highway when a police officer, Ray Pabon, sped over a hill at an estimated 85.7mph. The investigations conducted by both the Baltimore County Police Department and Pappas’ family found that Officer Pabon did not have the emergency lights and/or sirens on at the time of the collision.

A nearby liquor store’s surveillance tape confirmed that at the time of the crash, the cruiser lights and sirens were off. Ronald Parker, counsel for the Pappas’ family stated:

…an officer who arrived moments after the crash ran to Pabon’s car and turned on the emergency lights.

“We contend that had the officer had his siren and lights on when he was driving, our client would have seen or heard them,” Parker said.

A deputy states attorney for Baltimore County , Sue Schenning, later claimed that prosecutors had decided not to file charges of vehicular manslaughter. Grounds for this decision were claimed to be that lack of evidence could prove Officer Pabon acted with gross negligence, which is defined at times in Maryland as the conscious disregard for the high risk of others.

The Baltimore Sun reported that the civil suit was filed by Mr. Parker on behalf of the Pappas’ family, which sought $1 million in damages for Ms. Pappas’ estate and $50 million  for her two children. Although the suit was settled, the award and terms remain confidential. Keep in mind that Maryland ‘caps’ non-economic damages, such as pain and suffering and the distress and mental anguish of  loved ones who lose their beloved through the negligence of others.

Coming this Week: On the issue of ‘confidential settlement agreements,’ keep a lookout this week – should the public know? are they in the client’ s best interest? We’ll lay it out there for you to discuss and decide.

IV infiltration leads to $1.5 million verdict when patient loses thumb.

May 29, 2010

Recent news from Georgia (where the state’s cap on non-economic damages was recently overturned): A patient, Johnnie Jackson, age 47, was awarded $1.5 million for pain and suffering in addition to recovery of his medical expenses, for injuries he sustained when delay in treating an infiltration of his IV ultimately led to the loss  of his thumb.

Mr Jackson presented to Coffee Regional Medical Center for complications resulting from a pancreatic condition on April 30, 2005. Mr. Jackson had a known history of diabetes and chronic pancreatitis.

Upon presentation, a nurse administered Phenergan and Demerol through an IV, which had been inserted into Mr. Jackson’s right wrist. At approximately 3:00 a.mm on the morning of May1, Mr. Jackson complained of swelling and pain at the site of the IV causing it to be removed 45 minutes later.

After nine hours of complaints, Mr. Jackson was examined by his physician, who found that the medications had leaked into the surrounding tissues. Mr. Jackson’s physician elevated the arm in a failed attempt to reduce the swelling. On the afternoon of May 2, Mr. Jackson was transported to the South Georgia Medical Center for advanced treatment.

A pretrial order revealed that Mr. Jackson was transported to  the medical center for the treatment of a blood clot that was found near his thumb.  During Mr. Jackson’s 24 day admission at the medical center, he underwent a multiple surgeries by an orthopedic surgeon, who was unable to salvage Mr. Jackson’s thumb.

Mr. Jackson’s attorney, Laura Shamp, filed suit against Coffee Regional and five treating nurses in 2007 alleging that Mr. Jackson was unable to work due to frequent hospitalizations caused by diabetes and pancreatitis, but that:

…the hospital gave him a ‘job’ of living without his thumb for the rest of his life, so he should be paid for it.

“Their defense was that the IV did not infiltrate and that even if it did, that was not what caused the loss of his thumb,” said Shamp. “They said it was simply that strange things happen and this was a coincidental blood clot that ended up contributing clotting at the same time.”

With the plaintiff’s permission, the named nurses were dismissed with the hospital remaining as the sole defendant. The Coffee County jury awarded Mr. Jackson $53,026 for medical expenses and $1.5 million for pain and suffering.

Wife suffers second-hand asbestos exposure from husband’s clothes. CA jury awards her huge verdict.

May 28, 2010

Bobby Evans was a loyal employee of the Los Angeles County Department of Water and Power (DWP) for nearly 25 years. Little did he know, he was exposing his wife to second-hand asbestos.

Rhoda Evans, wife of retired DWP worker Bobby Evans, was diagnosed with mesothelioma after years of washing Mr. Evans’ clothing that had been coated daily in asbestos fibers. For nearly 25 years, Mr. Evans unknowingly worked cutting cement water pipes that contained asbestos and brought these dangerous fibers home with him on his clothing. Certain Teed Corporation, the supplier of the asbestos cement pipes, neglected to warn consumers of the risks in using their products containing harmful substances.

Certain Teed Corporation had known about the risk factors of working with asbestos materials since the 1960’s, yet never placed warning labels on their products until 1985. By 1985, it was too late for Rhoda Evans, who now suffers from  a life-threatening, incurable cancer.

Mrs. Evan filed suit against the Certain Teed Corporation with the following accusations:

Certain Teed actually concealed the risk of asbestos exposure from DWP officials “in an effort to protect the $40 million in annual revenues the company made on selling asbestos-containing cement pipe to the county.”

The LA Department of Water and Power was also held partially responsible for the compensatory portion of the award for its failure to adequately protect Bobby Evans on the job.

Mrs. Evans was awarded $8.8 million for compensatory damages and an additional $200 million to be paid by the Certain Teed Corporation for punitive damages.  Attorney’s for the Corporation feel that the punitive damages award is unconstitutional and plan to appeal the verdict.

Since 1929, an estimate of 600,000 lawsuit have been filed for mesothelioma and asbestos disease. Whether the punitive damage award is lessened in the case of Mrs. Evans is unknown; however, it is expected to encourage manufacturers to settle such cases out of court, as opposed to trying them before a jury. Hopefully, this message sent by the jury will resonant among the manufacturing community as well: if you are aware of potential dangers to the users of your product, you better warn people about that danger while you are taking pr0active steps to correct it!

Cardiac Health: Implantable Cardiac Devices – number of procedures on the rise, but is the technology really there to handle this boom?

May 26, 2010

It is reported that an estimated 650,000 people in the United States currently have implanted cardiac devices (ICD’s) designed for defibrillation (cardiac electro-shock therapy) or combination defibrillation and heart pacing.  For you  Baby Boomers rounding (or having passed) the 60’s bend, these numbers are expected to grow exponentially.  Cardiovascular Business posted an article on April 20 advising that hospital admissions for implantation of ICD’s increased ten-fold from 1990 to 2005.

This same article was quite alarming in its lack of scientific data on factors that determine the best results.  While it may be comforting to know that several large patient-studies have recently shown that centers performing the greatest numbers of procedures have the lowest rates of procedural complications, it is important to also note that authorities in this area of medicine warn that more data and study are needed on individual operator volume, specialty identification, training, performance and outcomes.

Cardiovascular Business News released a feature on April 20, 2010, citing an article published in 2009 by the Journal of the American Medical Association.  The data suggest that your odds of having procedural complications were greater if the device was implanted by a non-electrophysiologist. In short, does this mean you have better odds with an electrophysiology cardiologist? What about a general cardiologist? Or a thoracic surgeon? The study data apparently did not adjust for underlying health conditions or patients who are more ill. Why not? Are we to assume the latter groups of patients may have merely been more prone to complications? Or do the non-electrophysiologists just have less experience and training in implanting ICD devices? As of this time, Boomers, the medical profession has not published answers to these questions.

Perhaps we should be encouraged that Medicare is requiring implant and performance outcome data. As of June 2009, the agency had collected information on more then 380,000 implants.  Yet almost a year later, with many more procedures entered into that same database, the medical specialty communities are still unable to let us know which are the safest specialists and hospitals performing ICD implant procedures.  Physicians say longer term outcomes are needed.

In the meantime, are Medicare and other payors paying for all procedures regardless of the quality of practitioner or hospital performance?

More alarming, on May 17, 2010, Dr. Westby G. Fisher, a cardiologist at North Shore University Hospital Health System wrote in medcitynews.com that the medical system currently can no longer sustain the volume to maintain the implanted devices safely. He complains that physicians are unable to re-program ICD devices remotely.  Is this true? Due to the growing volume of implanted devices now occurring, technicians with no medical degree are programing patient devices from remote locations with sometimes no documentation or notification to the patient’s physician. Physicians are supposed to be overseeing the process according to Dr. Foster. However, he is of the opinion that due to the high maintenance these devices require, along with the growing number of patients, managing the technology will be of great concern to the boomer population and their physicians.  Once again, how are the pressing issues of quality, safety, and cost going to be timely addressed in this burgeoning aspect of our healthcare?

Finally, perhaps we can be comforted by the recent news release from the Heart Rhythm Society. Apparently, the medical profession had never previously determined parameters on how and when to stop these devices at the end of one’s life.  The study cited a dying patient whose defibrillator went-off  greater than 12 times, causing the patient needless suffering. Several groups of medical societies have now have published a consensus statement outlining ethical and legal issues, a decision-making algorithm for withdrawing/deactivating the device(s), and rights/responsibilities for those physicians who have ethical conflicts. The Heart Rhythm Society is encouraging and educating physicians and patients on what needs to happen in this algorithm for ending ICD-sustained life.

One can only hope that a physician is not placed into a remote call-waiting voicetree for dying boomers when the time comes to deactivate. It’s bad enough that we don’t yet know how to choose the best physician and/or hospital to have these devices implanted. Now there is growing concern that simple but critical issues of maintenance, remote re-programming and the like will get out-of-hand due to the ever increasing volume of these devices being implanted.

Contributor: Sharon M. Stabile