Posts Tagged ‘Medical Malpractice’

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!

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Medical Malpractice: Newborn Carbon Dioxide Poisoning Results in Verdict of $16.5 Million

May 19, 2010

Dwight Peterson, Army Staff Sgt., and his wife Shalay presented to Tripler Army Medical Center in Honolulu, HI for an elective cesarean section in January of 2005. Their son Izzy was born a healthy child, but now requires 24 hour care.

The Star Bulletin reported that within just one minute after the birth of Izzy Peterson, pediatrician Army Major Danielle Bird mistakenly administered carbon dioxide, used for stomach surgery, to the healthy newborn. It was not until nearly 42 minutes had passed, and the carbon dioxide tank was almost empty that someone realized this tragic error. Oxygen was supplemented, but by the time this intervention was attempted, Izzy had sustained irreversible brain damage.

Soon after Izzy’s birth, the Peterson family relocated to San Antonio, TX where they have obtained specialized care for Izzy. Izzy is fed through a gastrostomy tube and breathes through a tracheostomy, which he will do for the rest of his life.

Rick Fried, the Peterson’s attorney, filed suit in which it was alleged that Major Bird, a pediatrician doing her fellowship in neonatology, should have noted the difference between the carbon dioxide and oxygen tanks prior to administration. You think?!

Bird…would have had to adjust the upright regulator of the free-standing cylinder clearly labeled carbon dioxide, different from the clocklike regulator attached to oxygen tanks…

Attorneys for the defense tried to claim early on that Izzy had been born with some type of defect; an at-home video of Izzy’s birth as a healthy baby boy proved otherwise.

“You see him take his hand, trying to brush it (the carbon dioxide) away,” Fried said. “Even at birth he knew it wasn’t good for him.”

Although severely brain damaged, Izzy maintains self awareness, can track movement with his eyes and recognizes and responds to his parents. Izzy can feel pain and kick a ball, but will never perform as an average child.

Not present for the decision, the Petersons were informed that federal judge, David Ezra, ruled in favor of the family. Dwight and Shalay Peterson were awarded $16.5 million, which will help to pay for Izzy’s extensive medical care.

Tripler’s Maj. Gen. Carla Halwey-Bowland said in a news release: “Tripler Army Medical Center accepts responsibility for this tragic incident and respects the decision made by the Honorable David Ezra. Our command and well-trained staff are committed to doing whatever it takes to ensure an incident similar to this never happens again, such as improvements in medical gas safety — how they are labeled and handled and staff education.”

Tripler Army Medical Center is the largest Army hospital in the Pacific basin. It contains over 200 hospital beds and provides medical care to almost 400,000 eligible patients. The Medical Center is accredited with providing the best medical care in it’s region, but even in the best hospitals, mistakes can be made.

Non-Cardiac Surgery Too Soon After Cardiac Stenting Increases Risk of Complications

May 14, 2010

According to a recent study published in Circulation: Cardiovascular Interventions (an American Heart Association journal), patients should attempt to postpone having surgeries for at least six weeks after a coronary angioplasty procedure with stenting.  Researchers found that patients who wait at least six weeks before having another surgery are less likely to develop reduced blood flow to the heart (a.k.a. heart ischemia) and heart attacks.

The study data revealed that 42 % of patients who had other surgeries within the six-week period developed these complications. Only 13 % of patients who had surgeries beyond the six-week period developed the same complications. The study focused 1,953 patients with an average age of 64 who had cardiac angioplasty with stenting between 2003 and 2007.

According to the American Heart Association:

  • Over 70 percent of coronary angioplasty procedures in the United States also include stenting.
  • In 2006, approximately 65 percent of PCI procedures were performed on men, and approximately 50 percent were performed on people age 65 or older.
  • In 2006, an estimated 1,313,000 PCI procedures were performed in the United States.
  • In 2006, approximately 76% of stents implanted during PCI were drug-eluting, compared with 24 percent bare-metal stents.
  • In 2006, there were 652,000 PCI procedures with stents — 425,000 in men, 227,000 in women.

If you recently had cardiac stenting and require another surgery, make sure to ask your doctor about waiting to have the next surgery. This is particularly true if your next surgery is an elective one. If your doctor or surgeon is not a cardiologist, you may want to consider asking your doctor for a referral to a cardiologist.  You may also want to make sure that your physician or surgeon obtains cardiac clearance before proceeding with another surgery.   Don’t assume that your doctor will do these things for you. Be proactive; ask questions.

For related blogs, please see:

Contributing author: Jon Stefanuca

Fatal Plastic Surgery Case Results in $3.1 Million Settlement, but Jury Returns Verdict in Favor of Non-Settling Anesthesiologist

May 12, 2010

In March of 2005, Kathleen Cregan left her home in Limerick, Ireland to embark on a journey to the United States. She was heading to New York where she underwent a face lift by Dr. Michael Sachs. Wanting this surgery to be a surprise for her husband, she had told him that she was leaving home for a few days to attend a business course in Dublin.

Just hours after the completion of the face lift procedure, Ms. Cregan collapsed in the clinic bathroom from a blood clot that had formed overnight, which had passed from her pharynx into her trachea. Ms. Cregan quickly developed breathing problems and went into cardiac arrest, which resulted in brain damage.  Ironically, as the New York Times reported, Ms. Cregan later died on Saint Patrick’s Day.

Her family sued Dr. Sachs, as well as an anesthesiologist, Dr. Subbaro,  and a nurse, Susan L. Alonzo-Francisco, who were part of the medical team, for malpractice in State Supreme Court in Manhattan.

Dr. Sachs’s settled his portion of the lawsuit for $2.1 million last month. The case involving the nurse, Susan L. Alonzo-Francisco, was settled for $1 million on Friday. Dr. Subbaro proceeded to trial remaining steadfast that he was not negligent in his care of this patient. Even though the nurse had settled, the issue of her liability was submitted to the jury for determination.

The plaintiffs alleged that Dr. Subbaro had left the clinic and turned-over Ms. Cregan’s post-procedure care to Nurse Alonzo-Francisco, who, plaintiffs alleged, did not know how to utilize an endotracheal tube to alleviate breathing difficulties. It was also claimed that Ms. Alonzo-Francisco failed to dial 911 in a timely fashion.

The verdict: “late Friday afternoon, a six-member jury cleared [Dr. Subbaro] of responsibility in Ms. Cregan’s death. Jurors, who began deliberating on Friday morning, did not know of Ms. Alonzo-Francisco’s settlement, so they delivered verdicts exonerating her of responsibility as well. The settlement, however, will stand.”

So how did this lady, who lived on a farm in Ireland, come to be a patient of Dr. Sachs in New York?

Ms. Cregan found out about Dr. Sachs after reading an article about him in The Sunday Independent of Ireland, her family said. The article described him as “a leading cosmetic and facial reconstruction surgeon” in the United States, with a “highly confidential client list.”

But here’s what she didn’t know when she consented to his operating on her:

The article did not mention that Dr. Sachs had settled more than 30 malpractice lawsuits. But he was known as a master of generating publicity, even appearing on “The Oprah Winfrey Show” twice in the early 1990s. Dr. Sachs surrendered his license to practice medicine in 2008.

We have addressed this very issue of ‘Top Doctor’ does not necessarily mean best doctor. You simply need to do some homework on whom you are choosing to care for you or operate on you. Be an advocate for yourself – ask questions, don’t be embarrassed to do so. If  you have the time, do some research on the person you are entrusting with your health and perhaps even your life.


Drug-Eluting Stents Found Effective at Preventing Major Amputations

May 4, 2010

It is generally accepted in the medical community that drug-eluting stents (DES) are helpful in restoring normal blood flow to the heart. In recent years, however, DES treatment has been applied with proven success in other contexts.

For example, consider a patient with peripheral vascular disease (PVD); an unfortunately common medical condition characterized by the occlusion of the arteries of the legs and arms. This disease is usually caused or exacerbated by other medical conditions such as diabetes, high cholesterol, high blood pressure, and kidney disease. People who smoke are at a much higher risk for developing PVD as well. It has been reported that as many as five million adults in the U.S. have PVD.

Patients with PVD tend to experience a gradual decrease in blood flow to their extremities. Over time, this can result in a complete interruption of blood and the development of necrotic tissue. In the past, once necrotic tissue was present, amputation was often the only available medical treatment.

Recent research suggests that DES treatment may be used effectively to prevent or reverse arterial occlusions in patients with PVD. According to an article published by Modern Medicine, researchers studied 106 patients who were treated with DES to restore blood flow in the lower extremities.

There were no procedural deaths, and 96 percent of the patients were discharged within 24 hours. The researchers found that the three-year cumulative incidence of amputation was 6 percent ± 2 percent, survival was 71 percent ± 5 percent, and amputation-free-survival was 68 percent ± 5 percent. Also, only 12 percent of patients who died had a previous major amputation. The target limb revascularization rate was 15 percent.

This study suggests that DES treatment can be effective at preventing major amputations. If you are facing the possibility of amputation as a result of PVD or another ischemic process, ask your doctor about angioplasty and DES treatment.

Contributing author: Jon Stefanuca

A Baltimore City Ordinance Fuels The Abortion Debate – Archdiocese Goes to Court To Have It Declared Unconstitutional

April 21, 2010

According to a recent article in the Baltimore Sun, a Baltimore City ordinance requires local crisis pregnancy centers to post signs in their clinics disclosing that they do not offer abortion or birth control services. Apparently, this ordinance has angered the Archdiocese of Baltimore, which has decided to file a lawsuit in the Federal District Court, seeking to have the ordinance declared unconstitutional.  Its argument is that the government should be prohibited from compelling speech by requiring the clinics to post signs.  Why would the Archdiocese want to get rid of an ordinance, which, in essence, tells the public “you cannot get an abortion here?”

It appears that the Archdiocese’s remonstration has more to do with what the clinics do separate and apart from what the ordinance requires. Because the clinics must disclose that they do not offer abortion services, some of the clinics choose to post another notice, which informs the public about clinics that do offer abortion services. The ordinance does not require such a notice.

The Archdiocese seems to assume that the clinics would not have the incentive to post information on abortion clinics in the absence of the ordinance. This assumption appears attenuated at best.  Were these notices voluntarily posted by the clinics before the ordinance was enacted? Even if the ordinance were to be repealed, would the clinics still choose to post these notices? After all, they are not compelled to post the notices under the ordinance at the present time.  Whether or not a clinic chooses to post information on abortion clinics, can a patient simply walk in and inquire about abortion clinics?  The bottom line is that these clinics disclose information on abortion services because they want to and not because they have to.

I am curious if the Archdiocese would still want to pursue a lawsuit to repeal the ordinance if the clinics did not post notices with information on abortion clinics. Would it still have a problem with an ordinance telling the public “no abortions here.” Your thoughts?

Contributing author: Jon Stefanuca

How Dennis Quaid Became a Patient Advocate

April 14, 2010

On Monday, Dennis Quaid appeared on “The Early Show.” He talked about how he and his wife almost lost their newborn twins in 2007 as a result medical negligence.

According to Quaid, Thomas and Zoe Quaid were supposed to be given the anticoagulant drug, Hep-lock soon after their birth.  Hep-lock is a widely used anticoagulant designed for children. It is not nearly as potent as its adult counterpart, Heparin. By mistake, the newborns were given two doses of Heparin, which is 1,000 times stronger.  Quaid noted that the Heparin administration reduced the consistency of the newborns’ blood to that of water.  There was no justification for administering Heparin instead Hep-lock.

While the newborns managed to survive this ordeal, this experience has transformed Quaid into an active patient advocate. The actor helped create the Quaid Foundation, an organization dedicated to reducing medical errors. According to the article by CBS News:

Quaid has testified to Congress on behalf of patients’ rights, and Monday, he was to speak at the National Press Club to address the problem of dangerous medical mistakes.

The article further notes that the Centers for Disease Control and Prevention estimated that approximately 99,000 deaths every year are due to preventable medical errors. This is shocking to say the least.

Contributing author: Jon Stefanuca

Fat-Melting Injections (a.k.a. Lipodissolve) May Not Be As Safe As You Think

April 9, 2010

According to an article published by WebMD, the FDA reprimanded six U.S. spas (Monarch Medspa in King of Prussia, Pa., Spa 35 in Boise, Idaho, Medical Cosmetic Enhancements in Chevy Chase, Md., Innovative Directions in Health in Edina, Minn., PURE Med Spa in Boca Raton, Fla., All About You Med Spa in Madison, Ind.) and one Brazilian company for making misleading statements about the safety and side-effects of fat-melting therapy (a.k.a. mesotherapy, lipodissolve, lipozap, lipotherapy, or injection lipolysis).

FDA’s Deputy Director of the Division of New Drugs and Labeling Compliance noted:

They make it sound so good and so safe. … [They claim] it dissolves fat — melts it away with no side effects — and they have done thousands of procedures, and it really sells well. … We are really concerned because we have had reports of complications, and we have no good data that say this is safe and this is effective.

Lipodissolve is a process whereby a series of subcutaneous injections are administered (usually injections of phosphatidylcholine and deoxycholate) to a specific part of the body in an attempt to melt the subcutaneous fat. According to the article, some of the reported side-effects of this therapy have been scaring of the skin and the developments of painful subcutaneous knots.

If you are considering Lipodissolve, be aware that this treatment is yet to be approved by the FDA, and there is no medical data or scientific research demonstrating that Lipodissolve is safe for consumers.

Contributing author: Jon Stefanuca

Poisonings From Opioids, Sedatives, And Tranquilizers On The Rise

April 7, 2010

According to an article published by WebMD, a recent research study revealed a dramatic increase in poisonings from prescription drugs such as opioids, sedatives, and tranquilizers. The study, which was published in the April issue of the American Journal of Preventive Medicine, indicates a 65% increase in such poisonings between 1999 and 2006.

Jeffrey H. Coben, MD, the study author noted:

[Certain prescription drugs] are just as powerful and dangerous as other notorious street drugs, and we need to ensure people are aware of these dangers and that treatment services are available for those with substance abuse problems.

After examining data from about eight million hospitalizations a year, the researchers made the following findings:

  • Unintentional poisoning is now the second leading cause of unintentional injury death in the U.S.
  • In 2005, unintentional poisoning surpassed motor vehicle crashes as the leading cause of unintentional injury death for people 35 to 54.
  • Unintentional poisoning deaths have been on the rise for more than 15 years.
  • Intentional poisonings from prescription rose 130% during the seven-year period, compared to 53% in intentional poisonings from other substances.
  • The largest increase in the number of hospitalizations was caused by benzodiazepines. Hospitalizations from that class of drug increased 39% during the period studied.
  • Hospitalizations for poisoning by barbiturates decreased 41% and hospitalizations for poisoning by antidepressants decreased 13%.
  • Hospitalizations for poisoning by other drugs, medicinal, and biological substances increased 33%.
  • Unintentional poisonings by other substances increased 21%.
  • Unintentional drug-poisoning deaths increased 68% between 1999 and 2004, and the majority of the increase has been attributed to deaths associated with prescription opioids.

If you are currently taking opioids, sedatives, or tranquilizers, ask your doctor if these medications are truly necessary. Many of these drugs are highly addictive. If you have developed an addiction, now is the time to step up and seek help. Ask your primary care physician for assistance and information about available resources.

Contributing author: Jon Stefanuca

Malpractice Reform — New England Journal of Medicine – New Alternatives Analyzed

April 2, 2010

There is a thought-provoking article in the New England Journal of Medicine entitled “Malpractice Reform — Opportunities for Leadership by Health Care Institutions and Liability Insurers,” which was posted online on March 31, 2010.  In essence, the authors suggest that health care institutions and insurers not wait for national tort reform legislation (“a political gridlock”) but rather become leaders in the development of alternative methods for “providing compensation for medical injuries.”

While the concept is somewhat intriguing, the methods discussed are in many instances nothing but a privatization of tort reform at its worst. Each “alternative method” will be examined seriatim.  

The overall concept seems to be rooted in what is commonly referred to as the “disclosure-and-offer” approach.  Three models are discussed: the reimbursement model, the early-settlement model and health courts.

Please refer to the article itself for a more thorough description of these models.  The length of this blog is concerning enough.

In essence, with the “reimbursement model, institutions offer to (as the name denotes) reimburse patients for some out-of-pocket expenses related to the injury and for “loss of time.”  Typically, there are pre-determined limits for each category,which often are $25,000 for expenses and $5,000 for loss of time. Clear cases of negligence, fatal injuries, cases that are the subject of a lawsuit or where an attorney is invovled are excluded from the program.  There is no investigation into “possible provider negligence” in this matters. Patients who accept money do not waive their right to sue.

As a general comment, this plan makes the most sense but does not really deal with the infamously named “malpractice crisis” to any large extent.  First, most cases of medical malpractice that make their way to the courthouse could not conceivably fall within these financial parameters.  If a malpractice lawyer takes on a case with $30,000 in special damages (economic losses such as medical bills and lost wages), that lawyer needs to reassess their intake procedures. Given the economics of costs of litigation (not fees), mandatory reimbursements such as Medicare and Medicaid, liens from private insurers and the like, it would be foolhardy for a lawyer to become involved in such matters since the client’s net recovery would be non-existent.  What does make sense, however, is no-fault reimbursement to patients with minor, non-permanent injuries as a sign of goodwill by the providers of health care.  In that respect, the “reimbursement model” is a good program – given its express limitations.

Another major defect in this “reimbursement model” is the premise that there is no “investigation into possible provider negligence.”  If I am reading this correctly (none of the hospitals with which I am familiar in our geographical area have such plans presently; therefore, I am not certain how this works), the risk manager or claims person simply decides to write-off the loss as potentially a cost-savings measure.  One of the positive features of our current litigation system (when meritorious cases are brought) is that it does serve to correct errors in the health care delivery system.  When a major injury case is brought, many valuable lessons are learned by providers of health care.  Whether there is a “system problem” or just a dangerous method of practice at play, people do (unless they are completely arrogant and/or dense) learn lessons so that other patients do not suffer the same harm. One of the goals of the medical profession in analyzing, handing and resolving cases of medical errors is to identify problems and take steps to correct those problems for future injury avoidance.  An entire essay, rather than a blog, could be devoted (and maybe will be) to this concept of the health care industry policing itself through conscientious, rigorous self-appraisal and correction when wrongs are identified.

The “early-settlement” model is described in the NEJM article as follows: “no preset limits on compensation,” but compensation is not offered unless the institution, “after an expedited investigation, determines that the care was inappropriate.”  Offers may include compensation for all elements of damage – economic as well as non-economic (e.g. pain and suffering) damages.  To accept the money, the patient must agree that such payment constitutes a “final settlement” – thus obviating the bringing of a lawsuit.

More research into this ‘early-settlement” model is called for since the NEJM article does not go into other critical details associated with such an approach.  Since the model was “pioneered by the self-insured University of Michigan Health System,” I intend to devote a separate writing to this program once more research on its possible limitations and efficacy has been accomplished.

Suffice it to say for the present that if such a model precludes attorney involvement, then this is a fatal flaw.  The reason individuals come to a lawyer when tragedy occurs in the medical context is because those of us who specialize in this area of law know and understand (1) what  proper claims should be made and (2) what the fair and reasonable parameters of just compensation are for the victims of medical malpractice.  Sure, one can take a jaded approach and scoff – “All the lawyer wants is a fee and that’s why you are against this model”  Simply not so.  A substantially reduced fee arrangement may well be in order in such instances.  If the client is at least properly represented and the case is handled expeditiously and the compensation is fair and reasonable, then I for one believe that a reduced fee is in order which would further benefit the patient/client.

That’s not the full story, however, when it comes to discussing this so-called model.

In our current system of medical malpractice litigation, the system would work a whole lot better and be much less expensive and be much more efficient if these same principles were applied to the current claims handling practices of insurers and self-insured health care providers.

One of the largest drawbacks  for both the health care system and for the patient/client are the costs associated with medical malpractice litigation.  I recently wrote a blog regarding the issue of costs and their effect on the so-called malpractice crisis.  When clear-cut cases of medical negligence exist and are ignored or denied by risk management or insurance claims  personnel, the costs sky-rocket.  The health care insurer or provider hires counsel at an hourly rate to defend the case.  Discovery in the form of record production, depositions and the like proceed with sickening and dollar-wasting frustration for the plaintiff lawyers and their clients.  Cases slog along unmercifully through the system for months if not years. If you have a clue what you are doing as an experienced medical malpractice lawyer, you have a pretty good sense of what cases have merit and which do not.  Of course, no one is infallible, but for the most part, “good cases almost try themselves.”

Applying the principles of the “early settlement” model to what exists in today’s world of medical malpractice, I suspect that nationally, on an annual basis, billions of dollars would be saved in ridding our system of the needless waste of money in defending cases that should have been resolved early in the process.  Why not take the principles of this model and apply them to what exists in the current system?  That’s what the health insurance industry should have been doing years before now.  Did they need a new “model” to tell them that? If insurers took a more responsible approach by fairly and honestly assessing these cases and did so in an “expeditious” fashion, our courts would not be clogged with needless litigation, the health care industry would save enormous amounts of money, and – most important – patients would be justly and timely compensated.  If only the public knew just how much waste there is in our current system due to the lack of due diligence and timely claims handling, they would perhaps have a more balanced approach to this ‘discussion’ of tort reform.

Institutions and insurers that are responsible in their claims handling practice are not the problem.  Fortunately, in my work for  years as a defense lawyer, I had the privilege of working for one such organization. Unfortunately, they are not in the majority.  I would love to see figures of defense costs (fees and expenses) on those cases that are ultimately settled or unsuccessfully defended.  I have zero doubt that those numbers are staggering.  If those fees and costs were substantially reduced through conscientious and timely claims handling, we might well not be having this discussion of tort reform in the first place.  When critics say blame the plaintiff lawyers – they may have half the phrase right – just not the right adjective.  A fuller discussion of the abject waste due to poor claims handling and delaying tactics by the defense bar is the subject for future consideration.

Finally, the infamous option of the ‘health courts.’  Succinctly stated (in the interest of relative blog-brevity), the essentials are described in part as follows:

A panel of experts, aided by decision guidelines,determines whether the injury was avoidable — a determination that turns on whether the injury would ordinarily have occurred if the care had been provided by the best specialist or an optimal health care system; the avoidability standard is more generous than the negligence standard. For avoidable injuries, the institutionoffers full recompense for economic losses plus an amount for pain and suffering according to a predetermined compensation schedule that is based on injury severity.

Various alternatives for this model are discussed in the NEJM article and include items such as making the program voluntary, permitting limited appeals to some extent and so on.  As one reads further, however, repugnant elements start rearing their ugly heads.  Just some of these components of the ‘health court’ system proposal are (1) waivers of the right to file a lawsuit “as a contractual condition of receiving care,” (2) so-called “decision guidelines,”  and (3) “predetermined compensation schedules.”

Waivers of right to a jury trial as a condition to receiving care screams “void for being against public policy.”  Who is advising a patient in need of care what his or her rights are when signing a waiver. Can’t you just picture the following scenario?  Mr. Jones is clutching his chest in the ED and before care is rendered he’s asked, “Would you like to receive care here?  If so, you will need to sign this waiver form.”

Predetermined schedules of compensation?  Is this a euphemism for contractually created caps?

The NEJM article raises some valid issues and concerns. A great deal more thought of how to fix the system is warranted.  The answer may well  lie in the underlying approach being advocated in the article – malpractice reform should be self-initiating for health care institutions and liability insurers.  They should take a leadership role and not sit passively on the sideline shouting the same old song – “We need caps….Our system is about to crumble…It’s all the fault of the greedy plaintiff lawyers!”  Maybe a new model is in order – grab a mirror and examine how to better police your own claims-handling practices.  Stop wasting everyone’s time and money through poor claims practices.  Expeditiously and honestly assess claims.  Offer fair compensation early in the process.  Maybe if the health care and insurance industries tried fixing their own practices in the framework of the current system of civil justice, these endless calls for restricting injured patient’s rights might stop and the so-called crisis just might be averted.  Ever consider working with the plaintiff malpractice bar….or is just a lot easier blaming them?