Articles Posted in Medical Malpractice (Health Care Liability)

Medication errors hurt and kill many people every year.  The Institute of Medicine reports that there are 1,500,000 preventable adverse drug events per year.   The conservative estimate of the costs of these errors is $3.5 billion, not including the costs such as lost earnings and the pain and suffering experienced by the victims.

These errors occur in doctor’s offices, hospitals, nursing homes, ambulatory surgery centers, and virtually every other type of health care setting.

My very first medical malpractice case over 30 years ago involved a medication error.  A drug was prescribed for my client, and one of the risks of the drug was damage to the optic nerve.  The health care providers failure to do a baseline eye exam and failed to monitor our client for changes in her vision.  These failures caused permanent blindness in both eyes.  We won this case at trial but it was later reversed on appeal because of an error in the jury instructions.  The case was settled shortly before a second trial.

Hospitalists are a relatively new phenomenon in the medical field and it logically follows that from time to time these doctors will be subject to medical malpractice lawsuits.  

As doctors who care for patients in the hospital, the growth of hospitalists is the recognition that patient outcomes will be improved if there is a doctor on site coordinating patient care.  This approach makes sense to us – the idea of trained doctors on-site seems to increase the likelihood that patient needs will be met and errors will be reduced.  However, that does not mean that errors will not occur or that patients will not be injured by those errors.

One medical malpractice insurer, The Doctor’s Company, has done a study of the 113 claims against hospitalists it insures that arose from 2006-2010.

Under Tennessee law, the parents of a child born with cerebral palsy or other birth injury have one year from the date of birth of the child to take appropriate legal action against the responsible parties to seek recovery for medical expenses and loss of services arising from the injury to the child.  The child has three years from the date of the birth to bring the claim.

There are a couple of circumstances under which the parents can have more time to bring their claim.  First, more time is granted if the parents did not discover and reasonably could not have discovered that the child was injured as a result of malpractice.   This legal doctrine, known as the "discovery rule," is an extremely complicated rule of law and no parent should assume that he or she has more than one year from the date of the birth of the child to bring suit unless a competent lawyer with knowledge of all of the facts advises the parent that he or she has additional time.  Under no circumstances (except one described below) does the parent have more than three years from the date of the birth of the child to bring a lawsuit.

The exception to the three-year rule for the parents and the child arises if the health care providers "fraudulently conceal" the existence of a claim.  Once again, this is an extremely complicated area of the law and no person should assume that it applies to his or her case unless a competent lawyer with knowledge of all of the facts advises the parent that he or she can use the law of "fraudulent concealment" to have additional time to bring a claim for their child’s birth injury.

Wrong-site surgeries happen with alarming frequency.   Wrong-site mistakes can arise several ways, such as mixing up the left and right sides of the body; operating on a patient who was accidentally given test results belonging to someone else; marking the incorrect vertebrae in spinal surgery; neglecting to mark the operative site at all.  All of these are errors which can be avoided by reasonable care.

The victim of a wrong-site surgery has a medical negligence claim under Tennessee law.   Often, both the surgeon and the facility where the error occurred will have financial responsibility for the mistake.

The challenge in these cases is proving what injuries occurred from the mistake.   For instance, in knee cases, sometimes that surgeon will testify that he or she did operate on the wrong knee but that that knee needed the operation, too.

I was given a prescription for a drug and took the prescription to my regular pharmacist.  I picked up the prescription the next day and started to take the medication as ordered.  Two days later I was deathly sick and in the hospital.  It turns out I was not given the drug I was prescribed but instead I was given one with a similar name.  The drug I was actually given through my heath out of whack and I passed out.  I spent one week in the hospital and am still not back to work.   My wife talked to the pharmacist and he said that the handwriting on the prescription was confusing.  What are my rights?

You may have a claim against the doctor and the pharmacist, however the pharmacist has the obligation to review the prescription and, if he or she cannot read it, to call the doctor’s office to confirm was was actually ordered. 

Pharmacists are highly-trained professionals who know that giving the patient the wrong drug can result in very serious problems.   If the wrong drug is given not only is the original problem not being treated but the wrong drug can cause problems of its own.

Medical malpractice insurance rates for doctors have dropped substantially in Tennessee in the last few years, and now doctors pay far less for insurance that they did five years ago.

For example, 5 years ago an OB/GYN paid $59,572 for $1,000,000 / $3,000,000 in professional liability insurance.  Today, that same doctor woul;d pay almost 40% less for the same amount of insurance coverage – $37,255.  In fact, today an OB/GYN can buy over $10,000,000 of professional liability insurance coverage for less money than he or she would have paid for $1,000,000 in coverage just 5 years ago.

Why the decrease?  The health care lobby got various laws passed which makes it harder for patients to bring lawsuits against doctors.  The law has worked – it has put more money in the pockets of doctors and their insurance companies.

The Tennessee Department of Health has posted on its website thousands of pages of inspection reports on Tennessee nursing homes.

The Affordable Care Act passed under President Obama required that the reports be more accessible to consumers. 

The new postings include one year of reports for each licensed facility.  Eventually, four years of reports will be included.

I believe that I was a victim of medical malpractice while I was a patient at the VA hospital in Nashville.  How much time do I have to file a medical malpractice claim against the VA? 

You may have a claim under a law known as the Federal Tort Claims Act ("FTCA").  Under the FTCA, you cannot file suit without first filing a claim.  Generally, the claim must be filed in writing using the appropriate forms and paperwork within two years of the time after the accident or injury.  The claim must be filed with the appropriate federal agency.

The government then has six months to evaluate the claim.  It may try to settle the case, or it may deny the claim.  When the government denies a claim the claimant then has a right to file suit in federal court.  If the government does not deny or settle the claim within six months you can deem the claim denied and file suit in federal court.