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

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.

We’ve Heard of MRSA – Now We Learn that Doctors Struggle to Treat Gram-Negative Bacterial Infections – NYTimes.com

An article in yesterday’s New York Times by Andrew Pollack – Doctors Struggle to Treat Gram-Negative Bacterial Infections – NYTimes.com – brings to the public’s awareness that  Gram-negative organisms such as Klebsiella pneumoniae and Acinetobacter are becoming almost as common but have very few treatment options in the form of effective antibiotic coverage.        

The bacteria, classified as Gram-negative because of their reaction to the so-called Gram stain test, can cause severe pneumonia and infections of the urinary tract, bloodstream and other parts of the body. Their cell structure makes them more difficult to attack with antibiotics than Gram-positive organisms like MRSA.

Mr. Pollack reports that “[a]ccording to researchers at SUNY Downstate Medical Center, more than 20 percent of the Klebsiella infections in Brooklyn hospitals are now resistant to virtually all modern antibiotics. And those supergerms are now spreading worldwide.”

The number of infections occurring annually in hospitals is simply staggering – roughly 1.7 million hospital-associated infections, according to the Centers for Disease Control and Prevention. More horrifying is the CDCP’s estimate that when taking into account all types of bacteria combined, these organisms cause or contribute to 99,000 deaths each year.

“For Gram-positives we need better drugs; for Gram-negatives we need any drugs,” said Dr. Brad Spellberg, an infectious-disease specialist at Harbor-U.C.L.A. Medical Center in Torrance, Calif., and the author of “Rising Plague,” a book about drug-resistant pathogens.

Mr. Pollack’s article also sheds light on yet another little-known but equally tragic fact – a physician’s choices in treating some of these deadly Gram-negative bacteria are not without significant risks to the patient – neuro and nephrotoxicity.

Doctors treating resistant strains of Gram-negative bacteria are often forced to rely on two similar antibiotics developed in the 1940s — colistin and polymyxin B. These drugs were largely abandoned decades ago because they can cause kidney and nerve damage, but because they have not been used much, bacteria have not had much chance to evolve resistance to them yet.

“You don’t really have much choice,” said Dr. Azza Elemam, an infectious-disease specialist in Louisville, Ky. “If a person has a life-threatening infection, you have to take a risk of causing damage to the kidney.”

As many are aware or becoming increasingly aware, the drug-resistant bacteria are believed to be the by-product of overuse of antibiotics by healthcare providers over the past many decades.  Specialists in infectious disease have been vocal advocates for the judicious use of antibiotic therapy and avoidance of the ‘take a pill’ first approach by many front line providers such as internists.

In his article, Mr. Pollack provides a link to a campaign started by the parents of a 27 year old young man, who survived his post-operative, hospital-acquired MRSA infection twice only to die a victim of a Gram-negative organism, Enterobacter aerogenes. These advocates for prevention of hospital-acquired infections, Armando and Victoria Nahum, started the Safe Care Campaign.  A visit to this site is most instructive and we invite you to do so.

Tort Reform – Tennessee Style: ER doctors back bill ‘redefining’ malpractice – NO KIDDING!

As I was going through the listings and hashtags on my TweetDeck yesterday, I came across this tweet from a report in a Tennessee online publication – Emergency doctors back bill redefining malpractice | tennessean.com | The Tennessean. While I don’t practice in Tennessee, any trend in legislative changes affecting a patient’s right of access to the legal system is on my watch list.  

Here’s the essence of the proposed legislation according to this article:

Under the bill filed last month, the definition of medical malpractice would be changed from “negligence” to “gross negligence,” which would raise the bar for mistakes that could trigger a lawsuit.

To put this in context, Maryland and the District of Columbia, where I am licensed to practice, have many times defined “gross negligence.”  Those definitions are precisely what caused a chill to run up and down my spine when I saw the proposed change to Tennessee’s malpractice law.

In Maryland there is legislation called the Good Samaritan Act and the Fire and Rescue Company Act, which essentially provides in relevant part that in an emergency setting, only extraordinary or outrageous conduct by a person giving assistance or medical care in an emergency, or by a member of a fire company or rescue company, can be termed “gross negligence.”  For the lawyers among you, see, e.g. McCoy v Hatmaker, 763 A2d 1233 (2000).

In the District of Columbia, one case that gives multiple but somewhat common definitions for  ‘gross negligence is D.C. v Walker, 689 A2d 40 (D.C. 1997):

[Gross negligence is] [t]he failure to exercise even slight care,” and “such negligence as would shock fair-minded men.”Shea v. Fridley, 123 A.2d 358, 363 (D.C.1956).  Similarly, the United States Court of Appeals for this circuit has stated that “gross negligence implies an ‘extreme departure from the ordinary standard of care.’ ” Wager v. Pro, 195 U.S.App. D.C. 423, 428, 603 F.2d 1005, 1010 (1979).  We have applied Maryland law to define gross negligence in the driving context as “a wanton or reckless disregard for human life or for the rights of others,” and “indifference to the consequences … [which] implies malice and evil intention.” Hall v. Hague, 257 A.2d 221, 223 (D.C.1969).  * * * And our federal court of appeals, applying what it apparently perceived to be District law, has said that, “[t]o constitute willful or wanton negligence, the police actions must involve ‘such reckless disregard of security and right as to imply bad faith.’ ”      

And just what is the alleged justification for this ‘gross negligence’ in ER’s standard being proposed?  Well here you go:

“In my personal practice, if I knew that I couldn’t be sued except for things that I truly believe I should get sued over, I could eliminate half of my lab tests, two-thirds of my X-rays and 90 percent of my CT scans because all of those tests are done for my protection, not the patient’s,” said Dr. Andy Walker, a local emergency physician and vice president of the Tennessee chapter of the American Academy of Emergency Medicine. “For TennCare patients, of course, the Tennessee taxpayer is paying for that.”

Yeah – that’s my emphasis added to the above quote.  Is this doctor kidding?  He does twice the number of labs, three times the number of x-rays and ninety percent of the CT scans he orders – to protect himself, not the patient?  And his litmus test for getting sued is what?  – “… things that I truly believe I should get sued over.”  Maybe when the Senate Committee is done investigating the ‘stents controversy’ at St. Joseph Medical Center in Maryland, they can take a look at what’s going on in Tennessee!

Using this wonderful test – “I should only get sued for what I believe is malpractice” – I am pretty confident that  there won’t be much medical malpractice litigation concerning ER care in the state of Tennessee should this wonderful piece of legislation go through.

Perhaps I should also make you aware that there is also pending in the legislature of this state a cap on non-economic damages.   If you are wondering at what amount they want such damages capped – it’s $1,000,000.  Apparently, however, the lobbyists for the medical profession really would like to see such damages capped at $300,000 since they believe such a low figure would “take away the profit motive of trial lawyers.”

I wonder if this double-pronged legislative initiative isn’t a variant on the old shell game.  Throw enough legislation out there and negotiate to get at least one of them passed.

Tell you what – I won’t be moving our firm to Tennessee any time soon.

Senators launch fraud inquiry of Md. hospital – baltimoresun.com

St. Joseph Medical Center in Towson, Maryland, has been the subject of recent lawsuits, news reports and a myriad of other woes.  Now the Baltimore Sun reports that its conduct will be the subject of a U.S.  Senate investigation – Senators launch fraud inquiry of Md. hospital – baltimoresun.com.

The controversy swirling around the hospital concerns the alleged placement of unnecessary cardiac  artery stents in patients at the hospital by one of its former (now terminated) cardiologists, Dr. Mark Midei.

After a lawsuit was brought in Maryland by one of Dr. Midei’s former patients, the hospital issued a statement to a local news station, WBAL:

“St. Joe’s was guided by the belief that it has a moral and ethical responsibility to inform these patients of what happened. This is consistent with our mission and core values. It was the right thing to do,” the representative said through a statement.

“Questions about potential liability remain to be resolved. SJMC takes its responsibility to patients very seriously, which is why we conducted a review and notified patients and physicians. Our focus has been and will continue to be to put patients first,” the representative continued.

In a follow-up report written today, February 20, 2010, the Baltimore Sun reports:

Federal lawmakers have asked St. Joseph Medical Center to turn over three years of billing records and other documents related to cardiac care, saying they are troubled by reports of unnecessary coronary stents implanted at the Towson hospital and want to investigate for signs of Medicare fraud.

Montana Sen. Max Baucus and Iowa Sen. Charles E. Grassley – the top Democrat and senior Republican, respectively, on theSenate Finance Committee – also asked the hospital for records of its financial relationship with manufacturers of the medical devices. They set a March 12 deadline, saying their committee was launching an inquiry as part of its role “to protect taxpayer dollars from waste, fraud and abuse.”

An internet search on this story quickly reveals that a number of law firms have gotten into the fray.  Most notably, a class action lawsuit has been filed by Billy Murphy’s law firm and the Law Offices of Peter Angelos alleging, among other claims, fraud on the part of the hospital.

In a statement given to BEMORENEWS.com, Billy Murphy said:

“This is the worst abuse of the public trust we have seen in recent memory by a hospital in which patients place their confidence in seeking care and treatment,” said William “Billy” Murphy, Esquire.

Murphy added, “It is unfortunate that an institution such as St. Joseph, which has served so many people so well for so many years, would have allowed such a practice to have occurred.”

In today’s article, The Sun reports that the hospital has pledged to fully cooperate with the Senate committee’s investigation.

“Transparency and cooperation are in the best interest of the hospital’s patients, physicians, employees and community,” they said in a statement released Friday.

Dr. Midei has been recognized for years to be one of the area’s leading cardiologists.  As Billy Murphy said in his statement, St. Joe’s has held the reputation of being one of the area’s best hospitals serving many in the community for decades.  How could it all have gone so bad?   Seems like the story is just beginning…and gets worse almost by the day.

Aria: We didn’t follow procedures | Philadelphia Daily News

Tort reform?  How about reform of hospitals that provide care like this – Aria: We didn’t follow procedures | Philadelphia Daily News.

A 63 year old school guidance counselor in PA died of a heart attack while sitting in the waiting room of Aria Health’s Frankford campus  (located in lower northeast section of Philadelphia) emergency department. “A top hospital official” testified before the City Council looking into this death and said that the hospital staff violated hospital policy in not checking on the patient before he died.

Well the story doesn’t quite stop there –

“There were blatant and flagrant violations of policies and procedures,” Kline (the lawyer retained by the deceased patient’s family) said after his testimony. “We need to judge Aria on its deeds to date, not its words.”

According to a report released last month by the state Department of Health, Rivera, a musician and Olney High School counselor, died of a heart attack and was unattended for more than 40 minutes. The state report said hospital staff made extensive errors before, during and after Rivera’s death.

While Rivera sat dead in the waiting room, three vagrants stole his wristwatch.  (emphasis mine)

They not only didn’t pay attention to him before and while he was dying – they let him be robbed after he was dead?  Oh yeah – that’s another poster case for ‘tort reform.’   Maybe a solid verdict against the hospital will assist the its staff in making sure they follow the policies already in place at the hospital.