Caps Reduce Patients' Harms and Losses To Just Another Cost Of Doing Business

Here is a reprint of a letter that appears in this morning's New York Times written by Patrick J. Kenneally (my boss):

Re “A System Breeding More Waste,” by David Leonhardt (Economic Scene column, Sept. 23):

Mr. Leonhardt’s article is a good-faith effort to discuss both sides of an emotional issue. It acknowledges the fact that a majority of wrongfully injured patients never seek compensation. That means that culpable doctors get away with medical negligence.

Under our system of justice no doctor is held to account for a “mistake,” but only for falling below the established standard of reasonable medical care — that is, being negligent.

Some believe that the most effective reform would be a cap on damages — an artificial limit on negligently injured patients’ compensation. No state that has imposed such limits, to my knowledge, has seen a reduction in medical negligence or even a meaningful reduction in doctors’ malpractice insurance premiums.

Saying to a child or any patient who, because of negligent medical care, sustains permanent brain damage that his or her inability to have a normal life should be “fairly” compensated with $250,000 or $500,000 (for noneconomic damages) reduces medical negligence to a determinable cost of doing business for insurance companies and negligent doctors. Such “reform” is unfair to patients. Patrick J. Kenneally

Chicago, Sept. 23, 2009

The writer is a personal injury lawyer.

Elderly Patients At Risk For Spinal Cord Injury During Dental Procedures

I have been retained to represent a 79 year old woman in a dental malpractice case. The woman visited her Chicago area periodontist to have a single dental implant placed. During the procedure it was necessary for the dentist to extract the tooth that would be replaced with the implant. She explained to me that during the extraction her head and neck were twisted and contorted with what she felt was considerable force. Nevertheless, after the procedure she felt fine. She got up from the chair and walked out of the office with her husband under her own power. They spent the rest of the afternoon shopping before heading home for a quiet evening of television. She had no sense that something had gone wrong during her dental visit.

The next morning, however, she was unable to move. She had completely lost the ability to move her arms and legs. She was taken via ambulance to the nearest emergency room where she was diagnosed with Central Cord Syndrome, an injury to the cervical (neck) area of the spinal cord. The injury tends to occur when the neck is extended (bent back) or flexed (bent forward) beyond its normal position. Hyperextension of the neck can result in CCS when the spinal cord is pinched between the front of the cervical vertebrae and the ligament on the back of the cervical vertebrae. The elderly, who often have degenerative changes in the neck to begin with, are particularly prone to this sort of injury. CCS usually causes extensive motor weakness that is generally worse in the arms than the legs. My client spent many months in therapy learning to use her limbs again. She can now walk and use her left arm and hand. However, she remains unable to use her right arm, a condition that is likely permanent.

Elderly dental patients should discuss this risk with their dentists and periodontists. Appropriate steps should be taken to ensure that the neck is not hyperextended or hyperflexed during procedures. Also, if the patient has a prior history of neck or back problems the dentist should be made aware. He or she may wish to screen the patient by ordering tests to determine the degree of risk involved.

When A Lawyer Refers You To A Physician

CNN is reporting this morning about a group of lawyers and physicians who allegedly conspired to inflate lawsuit damages by encouraging accident victims to undergo questionable surgical procedures. I don't know if there are attorneys in Chicago who refer clients to doctors for treatment. It would not particularly surprise me if there are. (I'm cynical that way.) But an attorney who would refer you to a doctor for a specific treatment is someone you should stay away from. Obviously, any physician who would go along with a lawyer's recommendation on treatment is also someone you should run from as fast as your legs can carry you. Doctors and lawyers who would participate in such an arrangement are simply not going to be at the top of the food chain. They will be the bottom dwellers who are likely to provide you with poor, if not dangerous, medical care and legal representation.

It needs to be made clear that an attorney can, and in some circumstances should, refer a client to a physician for medical evaluation. In order to get a clear picture of the full nature and extent of an injury victim's damages it may be necessary to send the client for noninvasive medical testing. Examples that come to mind are: MRIs to test the extent of a soft tissue injury, a neurological exam for the severity of nerve damage, and neuropsychological testing to determine the impact of a traumatic brain injury on cognition and memory. Sometimes a client's existing treating physician(s) will have already done this sort of testing. Other times more answers are needed. Understand that what I am talking about is not medical treatment. I cannot think of a circumstance in which a doctor and lawyer should conspire to provide treatment. If you are being represented in a personal injury or medical malpractice case by a lawyer that wants to refer you to a physician make sure you ask him or her why. A referral for evaluation and testing is perfectly acceptable and often advisable. A referral for treatment is not.

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Don't Be Shy

There appeared in yesterday's Houston Chronicle a thoughtful editorial describing what consumers can and should do to protect themselves against medical errors. The piece urges patients not to be shy with their doctors and to ask questions before submitting to care. Click here to read the article.

Hearst Newspapers Investigation Into Medical Errors

Hearst Newspapers has completed a remarkable investigation into medical errors nation wide. The news organization has created a web site dedicated to the story.

Be Aggressive When Your Child Is Hospitalized

You know that mama bear or papa bear feeling you get when you sense something or someone posing a threat to your child? If you're a parent, of course you do. Well, you need to wear that feeling on your sleeve when your child is hospitalized. Every physician and every test performed is a potential threat and you need to rise up on your back haunches and protect your cub. Hyperbole aside, you need to aggressively ask questions, and seek information from his or her care providers when your child is hospitalized. Here is a link to a very good post on the Wall Street Journal's Health Blog about this subject.

One Medical Malpractice Attorney's View Of Abortion

Abortion. The word evokes strong emotion whenever it is uttered or written. As a trial lawyer representing persons injured due to shoddy medical care, I see it as a health care issue. Abortion is an invasive medical procedure. Physicians performing them owe a duty to their patients to do so with reasonable competence. The goal of the pro-choice movement has been to keep abortion safe and legal. They have argued that women will get abortions regardless of whether it is legal or not. If it is illegal women will seek out unscrupulous and less-than-skilled physicians in "back alleys" to perform them, placing their lives at serious risk. Therefore, they argue, abortion should be kept legal so that women need not undertake undue risk to have the procedure. The pro-life folks, on the other hand, tend to view abortion as murder pure and simple. I suspect that a pro-lifer would bristle at viewing abortion as a medical procedure at all. They believe that abortion should be illegal. Some pro-life advocates have used intimidation and violence to compel physicians to give up performing abortions. Not long ago I represented a client profoundly injured while undergoing an abortion. My experience with that case led me to conclude that we now have a situation that no one can be happy with: Abortion is legal, but it is often unsafe.

My client agonized over whether to terminate her pregnancy. She was from a good family, but like most they had their ups and downs. They did not have a lot of money. She and her loyal and decent boyfriend of many years had three young children together. When she became pregnant with their fourth child she felt that another would be too much for the family to handle financially and perhaps emotionally. Without her partner's knowledge she decided to terminate the pregnancy. Unfortunately, considerable time passed before she finally made her decision, and the fetus developed into its second term. Second term abortions are legal in Illinois. However, few physicians here perform them. She found a clinic in Chicago willing to do it. The outcome was tragic. The procedure she underwent was called dilation and extraction which requires that the patient be sedated. Anesthesia service at the clinic was not provided by a physician, but by a nurse. The nurse, evidently not knowing what he was doing gave the patient too much of a drug called Propofol and failed to protect her airway. As a result the oxygen level in her blood plummeted, causing a hypoxic event. In short, her brain was not receiving enough oxygen. She would never awaken and today remains in a vegetative state requiring 24/7 care.

My firm filed a lawsuit against the nurse anesthetist, the clinic and the surgeon alleging medical malpractice. In the course of the litigation which followed I immersed myself into the world of abortion; and "it" does seem to have its own world. Doing serious medical research on the topic was tough. I was constantly led to dark websites with photos of dismembered fetuses and containing ominous threats against doctors performing abortions. I learned that those willing to help me get information and find experts were often working with a political agenda I was not comfortable with. Apparently, parts of the pro-life movement support medical malpractice lawsuits against doctors who perform abortions. The strategy seems to be to try to sue them out of practice. The biggest obstacle I needed to overcome was just finding another physician somewhere in the United States who performed second term abortions. In Illinois, a plaintiff can only proceed to litigation against a physician with an expert who works in the same area of practice as the defendant doctor. I needed a physician with experience performing this procedure. There are very few anywhere.

From a lawyer's prospective, the case should not have been a difficult one to prosecute. The negligence was pretty apparent. In fact, not long into the discovery process I received a call from the defendants' attorneys, both very experienced and decent lawyers, who said they had been told by their own experts that the case was indefensible. To receive such an honest admission in a medical malpractice case from defense counsel is extremely rare. The case settled for the full amounts of the applicable insurance policies. However, I came away from that case horrified at the state of this area of medicine. With so few physicians performing abortions, especially second term abortions, one has to wonder whether women have access to the kind of good, competent physicians that are available for other kinds of gynecologic procedures. It's hard to blame doctors for not wanting to do pregnancy terminations. Given the threats -- sometimes carried out -- against the lives of abortion doctors, a physician would probably have to be nuts to want to have anything to do with the procedure.

So where does that leave the woman who feels compelled to terminate her pregnancy? In a difficult spot frankly. Be extra careful before having an abortion. You simply must take the time to look into the background of the physician who will perform the procedure. Click here for a list of good patient resources or look along the right side of this blog for helpful health care links. You should ask plenty of questions before hand. Understand the nature of the specific procedure you will undergo. All abortions are not performed in the same way and will depend on how far along the pregnancy is, as well as other factors. All surgical procedures come with risk, especially where sedation is necessary. Know who will will be responsible for administering anesthesia. If it is to be a nurse, will he or she be supervised by a physician knowledgeable in anesthesiology? Pregnancy termination seems at this time to be exceptionally risky so proceed if you must with extreme caution.