There have been many changes to Joe’s legal practice.  After joining Gage Mathers, he expanded the scope of his practice so the focus was no longer limited to medical malpractice.  This has allowed Gage Mathers to help victims of various forms of negligence obtain justice and fair compensation for their injuries.

Our medical malpractice work will still focus on catastrophic injuries and holding negligent health care providers accountable for the devastation they cause.  However, we have found success in helping medical malpractice victims whose cases were not considered big enough by other lawyers, or were thought to be too complex.  Some of that success comes from presenting compelling client stories and, we believe, awakening the humanity within risk managers, insurance adjusters, and defense lawyers.  Believe it or not, but many of them want to do the right thing and feel good when they are able to help people.  We are happy to help them feel good about themselves if they are helping our clients.

Not every case presents a compelling story, and most will not be successful.  But that does not mean malpractice victims should not try.  That does not mean malpractice victims should just give in to the new, miserable norm caused by their injuries.  It means malpractice victims should reach out to experienced malpractice lawyers to see if their story is compelling enough to awaken a sense of humanity and obtain a little justice.

Being a lawyer is tough.  Being a medical malpractice lawyer can be daunting.  You need to know the rules of civil procedure.  You need to know the law–not just laws specific to medical malpractice, but laws that govern torts, liens, insurance, evidence, privilege, and potentially even bankruptcy.  You must be able to advocate on paper and you need to know your way around a courtroom.  You need to be able to handle clients.  You need to be able to handle experts.  You need to understand strategy.  Beyond that, to be an effective medical malpractice lawyer, you must understand applicable medicine.

Whether you are new to medical malpractice law or been practicing for decades, you’ve likely searched for tips or tools designed to make you a better lawyer.  There is an abundance of websites that offer practice tips, suggest tech gadgets, promote tech services, and try to be helpful.  Here are the 5 tools that I think every medical malpractice lawyer should consider using.  They are not essential tools, but ones I think are helpful.  Please note, this is my opinion and the services below have not asked me to suggest them and I have no financial arrangements with them.

1.  TrialPad

TrialPad might be one of the most powerful apps that a medical malpractice lawyer can use on an iPad.  The app provides an easy to learn way of presenting information to a judge, jury, clients, or anyone for that matter.  You can easily import exhibits and other documents from Dropbox, Box, Citrix ShareFile, and other systems.  You can also transfer files from a computer by using iTunes and connecting your iPad to the computer with a USB cable.  For us old Windows users, you can import a .zip file (under 1 GB), which lets you create folders and subfolders on your computer, and then maintain those folders when you import into TrialPad.

You can control what the audience sees, zoom in and out to focus on specific information, and immediately black out the audience screen if an objection is made.  TrialPad includes annotation tools, such as highlighting, a callout tool, and notes, which you can save.  You can also create Key Docs, which allow you to create annotations ahead of time.  Additionally, TrialPad is great with trial exhibits, allowing you to keep track of exhibits that were admitted into evidence.  These features are great for presenting medical records, literature, and other technical documents.  Feel free to read articles and reviews on the internet to better understand how TrialPad can help you.

2.  Radiology Assistant

Radiology Assistant is an educational site of the Radiological Society of the Netherlands.  The site offers imaging and related information covering virtually every system in the body.  Its navigation is broken down by area of the body.  I use this site for the education.  I want to understand what the images show.  In some cases it proves invaluable during depositions.  It may also help me find normal images to better understand the client’s problem.  Most medical malpractice lawyers rely heavily on their experts for this sort of thing.  And that is fine.  But there will be instances when you don’t have the time to contact your expert, or you want to save the expense.  The information in this site may also enable you to speak more intelligently with your expert.

When it comes to trial evidence, you should have experts interpreting medical images for you.  The expert should print out key images and label them with identifiers.  The expert should provide the foundation for the comparison with normal anatomy.  However, for all other purposes, this is a great site.

3.  Patient Safety Network

The Patient Safety Network (PSNet) is a product of the Agency for Healthcare Research and Quality.  The Agency hopes to build bridges between research and practice.  PSNet provides the latest news and essential resources on patient safety.  It offers weekly updates of patient safety literature, news, tools, and meetings).  It also hosts all AHRQ Morbidity and Mortality Rounds, providing expert analysis of reported medical errors, Cases and Commentaries, as well as Perspectives on Safety.  There are also interactive learning modules on patient safety.

This site is a great way to stay up-to-date on issues impacting your practice.  Frankly, whether you represent health care providers or victims of medical negligence, one goal of medical malpractice cases should be to make health care safer and improve quality.

4.  Embodi3D

Visual exhibits are very effective at conveying complex medical information.  I am a big fan of medical illustrations and animations, but nothing beats being able to hand a juror or witness a 3D model.  How cool is it to give the jury something to see, handle, manipulate, and better understand the anatomy, injury, and your perspective.  Embodi3D allows you to create anatomically accurate and patient-specific models.  Difficult to explain findings on a CT or MRI are quickly conveyed to a lay person through a 3D printed model.

5.  Outside experts.

Knowing where to go for information helps set great lawyers apart from good ones.  There is nothing wrong with asking others for help.  In fact, having outside resources available to you can have a powerful impact on your practice.  Therefore, network, connect with other medical malpractice lawyers outside your firm, and join/participate in industry list servs.  Whether it is on a local or national level, connecting with other professionals medical malpractice lawyers gives you access to a larger knowledge base.

Knowledge is power.  The 5 tools discussed above should provide you with a ton of knowledge and an ability to present your knowledge in an effective manner.  As always, feel free to contact me if you think you have a medical malpractice matter that could use my expertise.

Health care costs increase for several reasons: inflation, research and development, increased salaries for doctors and nurses, the need for insurance companies to appease investors, charitable care, and location-based factors.  Now we can add questionable executive management decisions.

In NY, Bronx-Lebanon Hospital found questionable ways to boost revenue to pay executives fat salaries, bonuses, and perks.  This taxpayer-supported institution — whose construction project is in investigators’ crosshairs over alleged links to mob kickbacks — pushed moneymaking surgeries such as hip and knee replacements.

Marketing a hospital to draw patients requiring high-return surgeries is allowable.  However, Bronx-Lebanon Hospital specifically hired a doctor with a record of alleged poor outcomes to help boost revenue.  The hospital lavishes its chief of orthopedics, Dr. Ira Kirschenbaum, with hundreds-of-thousands-of-dollars in bonuses despite four deaths and numerous preventable injuries that occurred after he arrived in 2008.

Dr. Kirschenbaum received a $314,210 bonus in 2014 and a $180,940 bonus in 2015, according to Bronx-Lebanon’s tax filings.  The bonuses were in addition to his $851,000 salary.

Several hospital employees notified the state medical disciplinary panel to complain about patients recently injured under Dr. Kirschenbaum’s care.  The NY Post reported that Dr. Kirschenbaum denied allegations of negligence and said the OPMC cleared him in earlier cases.

High volume practices and surgeons who practice for many decades will have adverse outcomes that are not the result of negligence.  Concern about Dr. Kirschenbaum arises from the way he was hired.  Hospital CEO Miguel Fuentes hired Dr. Kirschenbaum as a division chief without consulting Dr. John Cosgrove, who was then chief of surgery and would have overseen Kirschenbaum.  Dr. Cosgrove did not have a chance to vet Dr. Kirschenbaum.

In other words, the hospital’s CEO made a business decision to hire Dr. Kirschenbaum without investigating his safety.  Preventable medical errors always increase health care costs.  The increases come from trying to fix the problems caused by the doctor’s negligence.  Hospitals and doctors have ways to code the additional care to make it appear as a normal complication of the patient’s condition.  These costs are then passed on to taxpayers through Medicare and Medicaid, and other people with health insurance through increased premiums.  The costs increase further when hospitals create an incentive system to entice doctors to schedule additional, and possibly unnecessary, clinic visits, or perform surgeries with questionable indications.  These are the real causes of increased health care costs, not malpractice lawsuits.

Hospital executives often enjoy hefty salaries and bonuses, as do doctors.  Just look at the nations highest salaries (9 out of the top 10 are in health care) or jobs of the nation’s top 1% (health care providers make up the second largest portion).  There is nothing wrong with making a lot of money, but we should think twice before we believe hospitals and doctors are struggling because of malpractice lawsuits.

The questionable practices discussed above have the potential to cause catastrophic problems.  If you think you or a loved one was injured from similar questionable practices, then contact us.

Take care of your heart, and your heart will take care of you.  A piece by Bill Gifford in Men’s Health discusses How Your Heart Can Break.  As the 17th-century British physician William Harvey noted, “Every affection of the mind that is attended with either pain or pleasure, hope or fear, is the cause of an agitation whose influence extends to the heart.”

Your Heart is a Very Sensitive Organ

Your heart beats roughly 70 times a minute, 100,800 times a day, and 36,792,000 times a year.  That’s a lot of work.  Your habits, diet, emotional state, stress levels, and even your environment impact your heart.  “Most men are familiar with classic risk factors like blood pressure and cholesterol, but they tend to miss the mental, emotional, and even spiritual issues that relate to the heart,” says Dr. Mimi Guarneri.

Mr. Gifford’s piece does a great job of creating awareness about how the heart works.  The print version of the article takes it one step further.  It highlights the importance of watching your health.  For instance, diabetes is considered early-stage heart disease because chronically high blood sugar spurs inflammation that can weaken the heart.  For men, there are early warning signs of a future heart attack or stroke, like erectile dysfunction, which can be caused by atherosclerosis buildup in the small vessels leading to the penis.

Although heart disease may often be thought of as a problem for men, heart disease is the most common cause of death for both women and men in the United States.  Women are more likely than men to have heart attack symptoms unrelated to chest pain, such as:

  • Neck, jaw, shoulder, upper back or abdominal discomfort.
  • Shortness of breath.
  • Pain in one or both arms.
  • Nausea or vomiting.
  • Sweating.
  • Lightheadedness or dizziness.
  • Unusual fatigue.

These symptoms can be more subtle than the obvious crushing chest pain often associated with heart attacks.

Key Takeaways

Your heart is like its own city-state.  It has its own electrical system.  It has its own circulatory system.  It is concerned about the environment, including noise and pollution.  It is influenced by the quality of blood coming in.  It is influenced by the quality of oxygen being exchanged in the lungs.  It responds to neurochemicals.  It self-regulates.

Although the heart is very resilient, it cannot survive too much abuse.  It will give up on you if you give up on it.  Becoming aware of symptoms and risks can help protect you.  Making several lifestyle changes to reduce the risk of heart disease are recommended:

  • Quit or don’t start smoking
  • Exercise regularly.
  • Maintain a healthy weight.
  • Eat a healthy diet that includes whole grains, a variety of fruits and vegetables, low-fat or fat-free dairy products, and lean meats.  Avoid saturated or trans fat, added sugars, and high amounts of salt.

Be proactive.  These lifestyle changes should be supported by your doctors.  You doctors can help you control your risk factors.  Your doctors should also be aware of the early warning signs of heart disease and alert you when they develop.  Therefore, make sure your doctors keep tabs on your heart and your health.  If they don’t, then contact us.

Medical malpractice cases come in various forms.  Operating on the wrong extremity.  Leaving a piece of equipment inside a patient after surgery.  Failing to diagnose an illness.  These are among the most-common types of medical negligence taking place in America today.  This post looks at the premature closure of a case, which can result from bad assumptions.

Case Review

A 45-year-old male with poorly controlled diabetes, was admitted to the hospital with vomiting and weight loss, signs of a fever, and cough.  The ER doctor’s impression was hypoglycemia, weight loss due to diabetic gastroparesis, and upper respiratory infection.  Blood tests confirmed an elevated white blood cell count, and blood cultures revealed gram-positive cocci in chains.  However, the patient was discharged on antibiotics before the final culture and sensitivity report was available.

The patient followed up with his PCP a week later.  He had less abdominal pain, but no appetite.  Three weeks later, he returned with complaints of swollen legs.  Later that same day, he went to the ER with difficulty breathing, fever, and heart rate of 120.  He was diagnosed with mitral and aortic valve endocarditis.  Turns out, the results of the prior culture demonstrated Streptococcus viridans–so his antibiotics needed to be switched.  He underwent valve replacement, developed severe left ventricular decompensation, and died from end-stage congestive heart failure before a heart transplant could be performed.

Discussion

Medical experts who reviewed the case concluded the PCP should have done an aggressive workup to rule out endocarditis when he first received the blood culture results.  The chains of gram-positive cocci should have alerted the doctor of the possibility of Streptococci, and treatment should have been started at that time.

The patient’s initial improvement likely led the PCP to premature closure.  The PCP prematurely stopped the diagnostic process and did not order an additional workup because of another psychological phenomenon called optimism bias.  The PCP focused on the improved abdominal pain and believed there was minimal risk of a negative outcome; he likely convinced himself of the potential for a positive outcome, even if that potential was slim.

The negligence here is that it is essential to review final blood culture results, and sensitivity reports, and not assume the patient’s initial improvement is a predictor of a successful outcome.  Arguably, the PCP never engaged in critical thinking and relied on the fact that most patients will not end up with permanent injury or death.

Depending on when the final culture and sensitivity report would be available, the ER doctor might have been negligent for prematurely discharging the patient with an ineffective treatment or for not making sure the patient knew the results of the blood cultures showed the antibiotics he was given would not be effective against his infection.

This case study, again, comes from the nation’s largest physician-owned medical malpractice insurer, The Doctor’s Company.  The Doctor’s Company has a vested interest in eliminating preventable medical errors. So do I. Too many people have their lives catastrophically impacted by negligent doctors and health care providers. No one should have to suffer because of another person’s carelessness.

Contact us if you would like to have experienced medical malpractice attorneys analyze the facts of your case to determine if medical negligence occurred.

Gage Mathers has always fought for patient safety and patient rights.  If the Bill passed by the House is approved in the Senate, your patient safety rights and ability to sue for medical negligence may be severely limited or eliminated. We are sending this notice to all of our clients to encourage you to contact your Senators and tell them to Vote NO on HR 1215.

The U.S. House of Representatives voted to pass the “Protecting Access to Care Act” (H.R. 1215), a bill that strips patients and nursing home residents of their rights to hold the health care industry accountable in court for injuries or death caused by medical negligence, intentional abuse, and defective or dangerous products. The bill faced robust bipartisan opposition and narrowly passed by a vote of 218-210.

“With today’s vote, the House once again prioritized the interests of health care corporations and the insurance industry at the expense of safe, affordable medical care for Americans.  AAJ stands with patients and calls on the Senate to protect the people of this country by rejecting H.R. 1215.”

For example, all states have established statutes of limitations for medical malpractice law suits. H.R. 1215’s federally mandated statute of limitations of 3 years after the date of injury or 1 year after the claimant discovers the injury, and the more stringent limitations on minor child injuries, would preempt approximately 47 states. H.R. 1215’s requirement that the imposition of several liability based on percentage at fault would unjustly preempt 26 jurisdictions that allow for joint and several liability. Furthermore, despite “state flexibility” H.R. 1215’s proposed noneconomic damages cap would automatically preempt 17 jurisdictions, which do not have a damage award limit or cap, and jeopardizes some of the 35 jurisdictions that have a limit or cap but that may not meet the stringent $250,000 mandated cap.

Section 6, which requires periodic payments for future damages, would force 20 states to comply with this federal mandate, including states that have previously held such provisions to be unconstitutional. Impacted states include Alabama, Arizona, Arkansas, Georgia and New Hampshire. “H.R. 1215 shamefully protects negligent medical providers, abusive nursing home corporations, and careless drug companies when they place profits ahead of quality care.  Each year, 440,000 Americans lose their lives due to preventable medical errors.  If this bill becomes law, victims and their loved ones will be unable to hold those responsible accountable.  Without accountability, every American is at risk.”

“Medical malpractice liability has always been governed by the states, but H.R. 1215 is an offensive federal power grab that would trample on states’ efforts to protect their citizens and to deter dangerous, negligent providers.”

The bill includes a federal cap on non-economic damages, imposes a federal statute of limitations for most claims, restricts attorneys’ fees, and grants blanket immunity to health care providers who prescribe a drug or device that was at any point approved by the FDA – even if that drug or device has since been proven to be dangerous.

We respectfully urge you to ask your Senators to vote against passage of H. R. 1215 or any bill or amendment that directly or indirectly preempts any state law governing the awarding of damages by mandatory, uniform amounts or the awarding of attorney’s fees. This opposition should also extend to any provision affecting the drafting of pleadings, the introduction of evidence and statutes of limitations.  We urge you to oppose any federal legislation that would undermine the capacity of aggrieved parties to seek full and fair redress in state courts for physical harm done to them due to the negligence of others.

Contact your senators and tell them to vote against HR 1215.

Understand medical malpractice cases by looking at the facts.

Case Review

A 65-year-old woman presented to her PCP with nausea, fever, and a dark area in the visual field of her right eye.  The PCP performed a physical examination, but did not include a funduscopic exam.  The PCP diagnosed a viral infection.

Four days later, the woman presented to an ophthalmologist with the loss of central vision in the right eye.  The  ophthalmologist diagnosed a retinal detachment.  Surgery was unsuccessful and she now has permanent loss of vision in that eye.

Discussion

Admittedly, PCPs see many patient with non-specific symptoms of nausea and fever.  Most of these patients will have an acute, self-limited viral infection.  However, as The Doctor’s Company points out, complaints of acute visual loss are relatively uncommon.

In the above case, the PCP failed to recognize that a dark area in the visual field is a “red flag” for retinal detachment.   Funduscopic examination is a routine part of every doctor’s examination of the eye, not just the ophthalmologist’s.  Why didn’t the PCP perform a funduscopic exam?

Lack of training?  Maybe.  More likely is the PCP concentrated on symptoms of the common viral infection to the exclusion of the unusual, but significant, visual complaint.

This could be the result of several biasesconfirmation bias, rush-to-solve bias, and overconfidence bias.

  • Doctors may only seek evidence that supports their beliefs or expectations due to confirmation bias.  This leads to focusing attention on the facts that support the doctor’s conclusion with the exclusion of other information.  Frequently seeing viral infections could mislead the doctor to focus on the symptoms that confirm this diagnosis.
  • The strong desire to make a quick decision can lead to a rush-to-solve bias.  At times, doctors are in a hurry and often fail to consider all of the possible data before making their decision.  Generally, doctors do not get paid more to spend more time on your care.
  • Many doctors are intelligent, well-educated people, who are too confident in their abilities.  Rather than accepting what they don’t know and referring the patient to a specialist, the doctor comes up with the answer.

Like most cases, the vast majority of patients will be lucky.  The PCP’s negligence will not result in permanent injury or death.  However, where the patient is permanently injured or dies, the PCP should be held accountable.

Contact us if you would like to have experienced medical malpractice attorneys analyze the facts of your case to determine if medical negligence occurred.

We can fight against medical malpractice with data, if the law required hospitals, outpatient surgical centers, and doctors to be more transparent.

This is nothing new, but this post was inspired by the May 2017 issue of Consumer Reports.  The main thesis was empowering people to take charge of their heart health.  An important message considering heart disease is the nation’s leading killer.  Several articles offered good advice about heart health. Even if you don’t, or cannot, exercise, there were several helpful suggestions like limiting sweets and eating more fruits and vegetables.

The article that caught my eye was, Why Hospitals Need to Share Surgery Success Data.  It reported that about half of the nation’s 1,000  hospitals that perform heart surgery voluntarily share their complication and mortality charges with Consumer Reports.  That is troubling.  Patients should have easy access to data so they can intelligently select their health care providers, especially when it is a matter of life and death.

How often do you check user reviews before buying an item on Amazon or other site?  How often do you compare items before buying?  Why should health care be different?

The thing that bothers me is that Arizona allows hospitals and doctors to hide behind the “peer review” and “quality assurance” protections to prevent public disclosure of complication data.  Even when a patient falls victim to a hospital’s repeat offender, the patient is not given this information.  I have heard there are hospitals that allow a surgeon, who repeatedly injures his patients through negligence, to continue performing surgery because the surgeon’s procedures make the hospitals A LOT of money.  When an injured patient tried to investigate the hospital’s knowledge of the prior events and determine what steps the hospital took to prevent future injuries, the hospital hid behind the peer review and quality assurance protections.   They are essentially enabling the surgeon to continue committing medical malpractice.

Protecting patients’ safety should be a priority in Arizona, not protecting paychecks.  So, what can you do?  Contact your state representatives and tell them we need transparency and safety in Arizona’s health care system.

If you believe you or a loved one was injured by medical negligence, feel free to contact us to investigate if there is a valid claim to pursue.

People hear about medical malpractice trials where a jury awarded large sums of money.  Some of these cases are sensationalized, and the reports tend to focus on the facts of the case.   As they should.  However, most reporting on medical negligence cases ignores the most important thing–all the hard work and preparation that went into the trial.

Whether the injured person is represented by one lawyer or several, trial preparation is a team effort.  Lawyers, paralegals, secretaries, experts, and a whole cast of characters.  Collectively, the team organizes all the information, prepares exhibits and demonstratives, and manages witnesses.  But any successful trial lawyer will tell you that is not enough.  More must be done to win medical malpractice trials.

Some successful trial lawyers will tell you that preparation for trial begins from the first day that the client walks through the door.  While that is not true for all successful trial lawyers, a common thread is that the team works together developing and refining strategies.  But, again, that is not enough.

You can have the greatest strategy, but if it is too complicated for the average person to understand then it is doomed to fail.  Most good trial lawyers take their strategies and infuse them with simple, easy-to-follow themes.  I do not mean theme as in the tagline of your trial.  You can, and should, have a short, compelling phrase that persuasively explains your case.  However, you should also have simple themes that sound like commandments, which every person on a jury can agree with.

Almost all medical malpractice cases can include:  Do no harm, Pay attention, Do not ignore alarms, Listen to all the evidence–which I like because it is included in our standard jury instructions, and Look before you cut.  These are all simple, powerful ideas that are difficult to dispute.  Your jurors will expect their health care providers to follow these commandments.

Brilliant taglines and powerful themes are not going to win medical malpractice trials, but they are vital components every successful trial lawyer incorporates into their cases.

 

The American Bar Association, with more than 400,000 members, penned a letter to the House Judiciary Committee expressing opposition to HR 1215–the so-called “Protecting Access to Care Act of 2017.”  They are working to protect victims’ rights to hold wrongdoers accountable.

The arguments behind tort reform are lies.  Tort reform was dreamed up by insurance companies as a way to avoid accountability to their own customers.   A recent study shows paid medical malpractice claims are decreasing, not increasing.  Medical malpractice lawsuits contribute at most 2-3% to the cost of healthcare.

HR 1215 has nothing to do with helping people and everything to do with helping negligent doctors and insurance companies avoid accountability by:
•Limiting all non-economic damages to $250,000, regardless of the severity of the injury;
•Making all claims federal claims, thus preempting states’ rights; and
•Limiting the amount the victim’s attorney can be paid, with no limitation on the amount the doctor or his/her insurer can pay their lawyer.

The $250,000 cap will apply to all health care liability lawsuits, including nursing homes.  The bill applies these limits regardless of the number of parties, the causes of action or the theory of liability, so the cap applies to intentional torts or other sorts of reckless misconduct.

Please take a stand and protect your rights.  Either visit Take Justice Back or contact your representative directly and tell them that victims of medical malpractice should not be further victimized.  Tell them to vote NO on HR 1215.