Physicians Meet in Colorado to Discuss Changes to Medical Malpractice Compensation

Earlier this month, the American Academy of Family Physicians (AAFP) held its 2013 State Legislative Conference in Broomfield, Colorado, just outside of Denver. A highlight of the conference was the introduction of a new medical malpractice model currently being floated in the Georgia legislature, which would place all medical malpractice claims into a system similar to workers' compensation, where injured patients would be prohibited from suing their doctor the same way injured workers are prohibited from suing their employer.

Instead of initiating a lawsuit against a negligent or incompetent doctor, an injured patient under the proposed Georgia approach would instead submit a claim to a newly-created state patient compensation system. The medical negligence claim would first go to the system's medical review department which would determine whether a medical injury occurred. If so, then the claim would be turned over to the compensation department, which would make awards according to a compensation schedule based on the type and severity of the injury. Patients who disagree with the outcome could have the decision reviewed by an administrative law judge.

Total compensation under the system would be limited to the total costs of malpractice premiums paid for the year, with 80% allocated to pay claims and the other 20% going to pay the costs of staffing the new bureaucracy and operating the new system.

The model was presented to the AAFP conference by Georgia state senator Brandon Beach and Wayne Oliver, the executive director of Patients for Fair Compensation, which is a 501(c)(4) tax-exempt "social welfare organization." 501(c)(4) entities are allowed to be politically active so long as they spend less than 50% of their revenue on political activity. This group, headed by doctors and representatives of hospitals and other healthcare companies, seeks to eliminate defensive medicine by replacing litigation with an administrative process like the Georgia model.

AAFP is a nationwide advocacy organization of family physicians that lobbies government at the state and national levels on behalf of its members.

Major Piece of Florida Medical Malpractice "Reform" Found to Violate Federal Law

The Florida legislature made several changes to its medical malpractice law earlier this year. One of these changes, which can be found in Florida Statutes 766-1065, went into effect on June 1^st and required an injured plaintiff in a medical malpractice case to authorize the defense attorneys, doctors and insurance adjustors to discuss the case with the plaintiff's other health care providers without the plaintiff or his or her attorney present. This "consent rule" was quickly challenged, and on September 25^th, the provision was struck down in federal court. The judge in Murphy v. Dulay held that the forced consent violated several provisions of the Health Insurance Portability and Accountability Act (HIPAA). Specifically, HIPAA protects personal health information by prohibiting any authorization for release of medical records when the patient's consent is not given freely and without duress. The law also provides a way for patients to object to such disclosure through the courts or an administrative proceeding.

The Florida law required plaintiffs to authorize these "ex parte interviews" as part of the pre-suit notification they are required to give the defendant doctor. The judge held that the law was written too broadly and granted an injunction prohibiting these interviews. Even though the topics to be discussed were supposed to be general and not disclose confidential or protected health information, there would be no way for the patient to know what was being disclosed, according to the court.

This case may still be appealed to the 11^th Circuit Court of Appeals. According to the Florida Medical Association, the law was crafted to avoid conflicts with HIPAA. However, it should be noted that the state of Georgia passed a similar law back in 2005, and that law was nullified by the Georgia Supreme Court in 2007 on the grounds that it was preempted by HIPAA.

Change to Colorado Court Rules Could Improve the Lives of Medical Malpractice Victims

Legal proceedings in the Colorado courts are governed by the Colorado Rules of Civil Procedure (CRCP). Under current rules, the losing party in a civil lawsuit can be required to pay the prevailing party's costs of litigation, other than attorney fees. Even without attorney fees, the amount of other litigation costs can be quite high, particularly in the case of medical malpractice, where the parties must hire doctors as expert witnesses to provide medical expert testimony about the injury and the circumstances surrounding it. The specter of having to pay the other party's costs has caused many victims of malpractice to think twice about embarking on a lawsuit. Even when they do, the rule provides a strong incentive to settle the case for less than it is worth, rather than go to court and possibly lose and be slapped with a bill from the other side for tens of thousands of dollars or more.

This situation was experienced recently by a Boulder family with a child born with Cerebral Palsy, a life-long debilitating condition which may occur during fetal development or during labor. The family lost their lawsuit and was ordered to pay $340,000 in costs, forcing the family into bankruptcy.

A small but important change to the CRCP could change that. The proposed change to CRCP Rule 54(d)(1) (see the analogous Federal rule here) would allow the court to consider the economic circumstances of the losing party before ordering them to pay the costs of the prevailing party. A change like this could save families from bankruptcy and take away some of the disincentive to litigation for low-income individuals or families involved in expensive litigation.

California Medical Malpractice Law May Leap Ahead of Colorado by Decades

A California consumer group is currently circulating a petition to increase the statutory cap on noneconomic damages in medical malpractice cases from the current $250,000 amount to over $1,000,000. If this initiative petition gets on the ballot and is approved by the voters, people injured in California by a doctor's negligence or incompetence would be able to recover many times more than similarly injured people in Colorado.

The group behind the petition, Consumer Watchdog California, says that it merely wants to adjust the damages cap for inflation, something which has never been done since the first passage of the Medical Injury Compensation Reform Act (MICRA) in 1975. Without adjusting for inflation, $250,000 in 1975 is worth only about $58,000 today, small comfort to a person seriously injured by a doctor's medical negligence or incompetence.

Colorado Caps Started Out Behind the Times and Stayed There

When Colorado first put a cap on medical malpractice damages in 1986, it used the $250,000 figure that California had passed 11 years prior. But $250,000 in 1986 was already a paltry equivalence $123,000 in 1975. $250,000 in 1975 was really equal to $509,000 in 1986, according to the Consumer Price Index Inflation Calculator, so using the outdated California sum severely restricted the rights of injured persons to fair compensation.

Colorado has adjusted its damages cap only one time since 1986 - to $300,000 in 2003. At the same time, however, the legislature also brought damages for physical impairment and disfigurement under the cap, overturning a decision to the contrary by the Colorado Supreme Court in Preston v. Dupont and lessening the total compensation one could recover in such cases rather than increasing it.

Under current Colorado law, noneconomic damages are meant to compensate the injured person for their pain and suffering, inconvenience, emotional stress, physical impairment or disfigurement, and impairment of the quality of life, up to a total of $300,000 in most cases. At Paulsen & Armitage, LLC, our attorneys have decades of experience seeking the maximum compensation available for victims of medical malpractice in Colorado. If you have been injured due to a doctor's incompetence or medical neglect in Denver or anywhere statewide, contact Paulsen & Armitage, LLC for a free consultation with one of our experienced Colorado personal injury lawyers.

Doctor Wrongly Diagnosed Man, Telling Him He Had Terminal Brain Cancer

Imagine being told that you have terminal brain cancer and only a few months left to live. How would you respond to such a bleak diagnosis? Montana resident Mark Templin believed the diagnosis and quit his job. He sold his pickup truck, celebrated what he thought would be his last birthday, made prepaid funeral arrangements, and even contemplated suicide. Then he waited for the inevitable. Miraculously, Templin began to feel better, and further medical testing revealed that Templin did not have brain cancer-he had suffered a series of small strokes.

A federal judge in May of 2013 ordered Fort Harrison VA Medical Center to pay Templin nearly $60,000, ruling that Dr. Patrick Morrow’s “negligent failure to meet the standard of care” with misdiagnosing Templin with terminal brain cancer in 2009 caused Templin and his family great emotional distress.

Fortunately for Templin, his misdiagnosis did not result in permanent physical damage or death. Many victims of misdiagnosis are not as fortunate. In a study by the JAMA Internal Medicine, over 150,000 patients a year suffered from a worsened medical condition or fatal medical error as a result of doctor errors. Missed or wrong diagnoses are the cause of more patient injuries and deaths than any other mistakes made by health care providers.

The study suggests that patients should be involved in their medical care by doing the following:

• Come to the doctor’s office prepared to give the doctor all of the relevant information about the nature and timing of your symptoms
• Question your doctor about the diagnosis-ask about other possibilities of what it could be
• If new symptoms develop or symptoms worsen, see your doctor immediately

What Should You Do If You Suspect a Misdiagnosis or Doctor Error?
Patients or their families who have suffered from a misdiagnosed illness or fatal medical error have the right to pursue compensation for their doctor’s negligence. Contact the Colorado medical malpractice attorneys at Paulsen & Armitage, LLC for a free initial consultation and immediate assistance.  

Why Are Doctors Sued for Malpractice?

What medical errors result in the most medical malpractice payments? Birth injuries? Surgical errors? Medication mistakes? According to a recent study cited by the New York Times, errors in diagnosis account for 28.6 percent of malpractice payments, making it the most common cause of claims paid against health care practitioners. Errors related to treatment came in second, and errors related to surgery were third. All other errors combined- including medication, monitoring, anesthesia, and obstetrics- accounted for only 20 percent of malpractice payments.

Diagnostic Errors are Common and Deadly
Misdiagnosis resulted in over 100,000 medical malpractice payments from 1986 to 2010. Diagnostic errors were cited as the cause of 44 percent of all deaths and 33.8 percent of all disabilities in cases resulting in malpractice payments.

The study analyzed 350,706 paid medical malpractice claims over a 25 year period from 1986 to 2010. The study concluded that, “Among malpractice claims, diagnostic errors appear to be the most common, most costly and most dangerous of medical mistakes. We found roughly equal numbers of lethal and non-lethal errors in our analysis, suggesting that the public health burden of diagnostic errors could be twice that previously estimated. Healthcare stakeholders should consider diagnostic safety a critical health policy issue.”

For further information, see the study published in BMJ Quality and Safety.

Experienced Colorado Medical Malpractice Lawyers Can Help You
If you or a loved one has been injured as a result of a misdiagnosis or other medical error, contact the Colorado medical malpractice attorneys at Paulsen & Armitage, LLC for a free case evaluation and immediate assistance. 

Who is Responsible for Medical Malpractice in the Wrongful Death of Michael Jackson?

Known as the "King of Pop" for his staggering success in the music world for decades, Michael Jackson died of cardiac arrest on June 25th, 2009. His death was attributed to a fatal combination of drugs found to be prescribed and administered by Jackson's personal physician, Dr. Conrad Murray. Dr. Murray was found guilty of involuntary manslaughter by a Los Angeles court in 2011 and is currently serving out a four-year sentence for the crime.

In a civil trial which opened on April 29th this year, Jackson's mother, Katherine, along with Jackson's three children, Paris, Prince and Blanket, are the plaintiffs in a wrongful death lawsuit, seeking over one billion dollars in damages for their loss. Of course, not only does Dr. Murray not have a billion dollars, he appears to be deeply in debt. But the Jacksons are not suing Dr. Murray. The defendant in the lawsuit is Anschutz Entertainment Group (AEG), the corporation which was organizing a comeback concert tour for the King of Pop and which was slated to begin shortly before Jackson's unexpected death.

Employers can be held liable for the tortious acts of their employees

The plaintiffs will argue that AEG selected and hired Dr. Murray to treat Jackson and failed to supervise him properly. Some particularly damning emails coming from AEG can be read to imply that their concern is more with getting Jackson to perform than with his health, and also that Dr. Murray was thoroughly checked out by AEG and found not to have any conflicts, which is arguably not the case given his financial situation. AEG, for their part, will argue that Dr. Murray was hired by Jackson and not by AEG, and that even though AEG had agreed to pay the doctor $150,000 per month to treat Jackson, this payment was an advance against Jackson's profits and did not reflect an employment relationship between Murray and AEG.

Holding another entity liable for a doctor's malpractice is nothing new, and employers are often held liable for the negligence of their employees. For instance, if a doctor performs malpractice in a hospital, as in the case of a surgical error, the hospital may sometimes be sued for negligent hiring, negligent supervision or similar torts. The difficulty here is often determining whether the doctor and hospital had an actual employer-employee relationship, or whether the doctor was merely granted "privileges" to practice at the hospital, and what the extent of such a relationship means for liability purposes.

Paulsen & Armitage, LLC is a Westminster personal injury law firm representing victims of medical malpractice and wrongful death in Denver and throughout Colorado. Our lawyers work to identify all responsible parties and hold them accountable for their negligent or wrongful conduct. If you or a loved one has been harmed by the negligence or misconduct of another, contact Paulsen & Armitage, LLC to speak with one of our attorneys.

Lawsuit Against Aurora Movie Theater May Proceed on Premises Liability Grounds

In a ruling made on April 17th, a federal judge in Denver decided to allow a group of lawsuits to proceed against Cinemark USA, the owner of an Aurora movie theater where 12 people were killed and 70 injured last July when a heavily-armed gunman entered the theater and began indiscriminately firing upon the crowed. The judge dismissed the plaintiffs' negligence claims but is allowing the case to proceed on a premises liability theory. This news is a mixed result for the plaintiffs. While it is good news that the case may proceed, it can be harder to prove a case based on premises liability than negligence, so the plaintiffs and their attorneys may have their work cut out for them.

Colorado Law Favors the Property Owner

The Colorado Premises Liability Act (PLA), found at C.R.S. §§ 13-21-115, was enacted to provide greater protection to property owners than previously existed. The law classifies people on another's property as either trespassers, licensees or invitees. Under Colorado premises liability law, landowners owe their highest duty of care to invitees, which is the status of the moviegoers in this case. Still, a landowner is only liable to invitees for the owner's "unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known."

In the present case, the shooter was able to exit the theater by a back exit, leaving the exit door propped open while he drove his car around to the back, armed himself heavily and re-entered the theater. The plaintiffs must first be able to prove that the theater owners knew or should have known of the danger, and then they must prove that the owners failed to use reasonable care to protect against that danger. Based on the arguments presented in the complaint, expect the plaintiffs to present evidence of a gang shooting and other incidents in the vicinity to put the theater on alert about the danger, and then to argue that the lack of security and any type of alarm or monitoring of the exit door was unreasonable.

Will these arguments be enough? The topic of the lawsuit was recently discussed on a segment of AirTalk, a program that airs on Southern California public radio station KPCC. You can listen to the 13-minute segment here. As mentioned on the program, there has been a lot of case law on this topic in Colorado, giving the defendants plenty of opportunities to argue to have the case dismissed on various grounds before it ever gets to trial.

A Long Way to Go for Victims of Aurora Movie Theater Shooting

The case of Axelrod and Traynom v. Cinemark, USA, which is a consolidation of 7 different cases with 13 plaintiffs, is currently scheduled for a three-week trial to begin May 5, 2014. The judge's ruling last week marked an important step in the case, but the shooting victims and their families still may have a long way to go before this case is resolved, hopefully with a favorable settlement of jury verdict.

The lawyers at Paulsen & Armitage, LLC represent victims of personal injury and wrongful death in Denver and throughout Colorado statewide. If you or a loved one have been hurt by the negligent or wrongful conduct of another, contact Paulsen & Armitage, LLC to speak with one of our caring, dedicated attorneys.

Colorado Medical Board Files Charges Against Surgeon in Failed Robo-Surgeries

Dr. Warren Kortz has been charged with 14 counts of unprofessional conduct by the Colorado Medical Board following a series of failed procedures at Porter Adventist Hospital. The state board contends that from 2008 to 2010, Dr. Kortz tore and cut through blood vessels, injured patients through improper positioning and padding, left sponges and other instruments inside patients after closing, and subjected some patients to overly long surgeries, resulting in aborted kidney donations due to the mistakes and possibly death due to complications arising from the surgery. Kortz is also charged with failing to properly document such complications in the patient's medical records.

Dr. Kortz's robotic surgery privileges were suspended by Porter Hospital for three months in 2010, and Porter reported to the medical board that Kortz had complications in 11 surgeries involving the robotic arm. Kortz used the robotic arm in complex kidney surgeries in 2008-2010, when the use of the robot was not the "standard of care" for such procedures. Many of these surgeries went horribly wrong and had to be converted to open surgeries on the spot to fix the problems. The formal complaint against Dr. Kortz can be found here.

An article in the Denver Post documents some the patient cases mishandled by Dr. Kortz. In one case, a 22 year-old woman wanted to donate a kidney to her brother. Dr. Kortz told the patient the robotic arm was the "gold standard" in such surgery without informing her of the lack of an established track record of the device in such surgeries, or other options such as open or laparoscopic surgery. During surgery, Dr. Kortz injured the patient's aorta and was forced to convert to open surgery to stop the bleeding. He then aborted the kidney transplant and closed up. The patient went into post-operative distress, and an x-ray disclosed that a sponge was left inside of her. The patient was also improperly padded on the table, leading to nerve damage after the surgery. She was not the first of Dr. Kortz's patients to suffer such an injury.

Federal Officials Launch Probe into the Safety of Robotic Surgery Arm

The complaint against Dr. Kortz arises as the U.S. Food and Drug Administration is seeking more information about robotic surgery mistakes and results across the U.S. The FDA is currently interviewing surgeons after a series of surgical mishaps were reported. Hospitals such as Porter Adventist spend more than $1 million on the surgery units manufactured by da Vinci, and there is financial pressure to utilize the units to recover the investment. The FDA hopes that in interviewing surgeons, they will identify the factors contributing to the rise in reports of surgical mishaps and prevent further injuries from occurring.

Contact Experienced Colorado Medical Malpractice Lawyers for Help

If you or a loved one have been injured as a result of a surgical error or doctor's error or oversight, contact the Colorado medical malpractice attorneys at Paulsen & Armitage, LLC for a free initial consultation and immediate assistance.

Demanding Physician Workloads Mean More Medical Errors

A recent study reports that nearly 100,000 people die each year in hospitals from preventable medical errors, and some estimates find that medical errors cause as many as 200,000 deaths every year. According to the Journal of American Medical Association, the number of hours that doctors are working has actually declined at the same time that demand for doctors has risen.

So why are so many patients dying from medical errors if doctors are working fewer hours? A new article published in JAMA Internal Medicine reveals that heavy workloads among doctors working in U.S. hospitals may be partly to blame.

Doctors Say Workloads Undermine Patient Safety and Lead To Medical Errors

Researchers at Johns Hopkins University recently published the results of a survey of more than 500 doctors working in hospitals across the nation. The results reveal that "nearly half" of doctors in the U.S. think that their demanding workloads are causing medical errors and undermining patient safety. In addition, 40 percent of the doctors surveyed believe that the number of patients they treated over the course of a month exceeded safe levels, and 5 percent of doctors reported that their workload may have led to at least one death over the past year.

These results are shocking and require greater discussion of quality of patient care in U.S. hospitals. Heavy workloads can result in failure to adequately discuss treatment options with patients, ordering unnecessary testing and procedures, failure to properly diagnose, and in some cases, death. Over 20 percent of the doctors surveyed reported that their average workload "likely contributed to patient transfers, morbidity, or even mortality."

Hospital administrators and health care providers must consider ways to balance patient safety with doctors' increased demands. Today's economic and health care environment often creates incentives for doctors to take on more patients and provide more treatment. While it is unclear how hospitals will respond to the survey results, it is clear that demanding workloads is a widespread problem affecting doctors across the nation.

Contact an Experienced Medical Malpractice Lawyer In Denver

If you or a loved one has been harmed due to a health care provider's mistake or other medical error, Paulsen & Armitage, LLC can protect your rights and help you recover compensation for your injuries. Please contact our office today for a free initial consultation.

Patient Safety May be Negatively Impacted by Doctors' Excessive Workloads

A survey conducted by a group of researchers at Johns Hopkins University has found that nearly half of U.S. doctors consider excessive workloads to be undermining the safety of their patients, and the cause of a significant number of medical errors. The findings were published by JAMA Internal Medicine this month.

According to the authors, there are many consequences of giving doctors too much work, for example, "excessively increasing [a doctor's] workload may lead to suboptimal care and less direct patient care time, which may paradoxically, increase, rather than decrease costs" of treatment. Also, "hospitals frequently reported that excess workload prevented them from fully discussing treatment options, caused delay in patient admissions and/or discharges, and worsened patient satisfaction."

Based on the results of the survey, 40 percent of doctors believe that the number of patients that visited them over a period of one month often exceeded safe levels. Of these doctors, over 20 percent reported that their average workload likely contributed to patient transfers, morbidity or even mortality, with 5 percent reporting that a heavy workload may have caused at least one death over the year.

Are doctors being forced to take on unsafe numbers of patients?

Many people in the health care industry believe there is an increasing problem of doctors and nurses having to take on more patients, especially as recent health reforms may work to give medical insurance coverage to an additional 30 million Americans. However, according to the Journal of the American Medical Association, the number of hours that doctors are working has been declining over recent years, even though the demand has been higher than ever, and there is a serious shortage of physicians in the country.

If a doctor does suffer from excess clinical workload, the situation may result in physician fatigue, which is associated with increased medical errors and has led to the implementation of work-hour restrictions. For nurses, there is a significant association between patient mortality and low staffing. Currently, fifteen states (but not Colorado) have enacted legislation and/or adopted regulations to address nurse staffing.

Contact an Experienced Medical Malpractice Lawyer in Denver, Colorado

If a doctor's mistake or oversight harmed you or a loved one while you were receiving medical treatment, you may be entitled to compensation for your damages. In Colorado, contact the Denver law firm of Paulsen & Armitage, LLC for a free initial consultation to discuss legal action for medical malpractice in your case.