Medical Malpractice and Unnecessary Tests

Search for "medical malpractice" and "unnecessary tests" on the Internet, and most of the results will talk about how fears of being sued for medical malpractice cause doctors to order unnecessary tests, which increases costs to the overall health care system and is a reason why we should have tort reform. Well, it turns out that there is another reason why doctors may order unnecessary tests: it's profitable. Unfortunately, a test that is not helpful to the patient may actually be harmful, and ordering or administering unnecessary tests can itself be a form of medical malpractice.

This issue is a hot topic in Colorado and across the nation. The September issue of Consumer Reports, in an article titled The Business of Healing Arts, cites increasing calls from physicians themselves arguing against the overuse of testing, and even treatment, in cardiac cases where the facts do not support such an approach. We all want our doctors to have access to the latest and best high-tech diagnostic equipment, and to use it whenever necessary. But when doctors and hospitals acquire this equipment, the only way they can recoup their costs is by ordering tests that patients and their insurance companies pay for. The profit motive is there; unfortunately it does not always seem to be subordinate to the Hippocratic Oath.

The Consumer Reports article was cited in a similar report by the National Journal online (Consumers Get Unnecessary Heart Tests: Consumer Reports, August 2, 2011), citing unnecessary testing such as EKGs ($50), Stress Tests ($250), and angiograms ($5,000), not to mention the next step - unnecessary treatment such as angioplasty ($20,000 and up). Here in Colorado, the Denver edition of the Huffington Post reported on the recent fine levied against a provider of CT scans (Heart Check America Hit With Largest Malpractice Fine In Colorado's Radiation Department History, August 8, 2011). Heart Check America was fined $3.2 million by the Colorado Department of Public Health and Environment for performing CT scans that were not ordered by a state-licensed physician.

X-rays and CT scans expose patients to high levels of radiation. Other tests can produce harmful results in other ways. For example, a cardiac stress test can itself induce a heart attack, and radioactive and known carcinogens are often used in conjunction with the test (nuclear stress test). It is true that missing a diagnosis or failing to order a test may be evidence of medical malpractice. But ordering an unnecessary test, whether motivated by profit or the practice of "defensive medicine," also falls below the expected standard of care, and doctors should be held liable for any harm that results. If you believe you have been harmed from unnecessary diagnostic testing or medical treatment, contact the medical malpractice lawyers at Paulsen & Armitage, LLC.

Medical Malpractice Can Cause Devastating Birth Defects

A delivery that went wrong at a Colorado Springs hospital in 2007 left a child with severe and permanent brain damage and a condition known as spastic quadriplegia. She will need a high degree of supervision and care for the rest of her life. A lawsuit filed last year by the child's mother was settled early this year for $700,000. The lawsuit alleged that malpractice on the part of the nursing staff and physician led to the child's injuries by, among other things, failing to heed the signals from the fetal heart monitor which indicated the baby was in distress during labor.

Statute of Limitations Works for Child, But Not for Mother

In general, a medical malpractice action must be brought within two years from the date of the injury, although there are exceptions when the injury is not immediately apparent and is discovered later. Injured minors, however, have until their eighth birthday to bring suit, if they were injured before they were six years old. While the mother was able to recover a substantial settlement on behalf of her child, she waited too long to file a claim for herself and was barred from recovering for her own injuries. It is recommended to always contact an attorney as soon as possible after an injury to avoid such a result.

A Lifetime of Costs

The additional lifetime costs for a child born with such severe challenges will reach into the several millions of dollars. A payment of $700,000 can itself grow into the millions over time if properly invested. Hopefully the income generated will keep pace with the expenses as they are incurred.

Undocumented Immigrants Have Access to Courts

The mother of the injured child is an undocumented immigrant. The child, being born in America, is a U.S. Citizen. Regardless of the political debate surrounding immigration, it is the law of the land that undocumented immigrants have access to the courts and can sue for personal injuries, including medical malpractice that causes severe and permanent brain damage in their children.

If you or your child has been injured during a birth or other medical procedure, contact an attorney as soon as possible to make sure you are compensated in the case of professional negligence. In Colorado, contact the personal injury and medical malpractice lawyers at Paulsen & Armitage, LLC.

Medical Malpractice - It's Not Just for Doctors Anymore

A $3 million judgment was recently awarded to a family of a ten-year old girl born with multiple disabilities. The judgment was awarded against the midwife who oversaw and assisted with the birth at a Maine medical center. In California, an anesthesiologist was found liable for causing a brain injury due to lack of oxygen, resulting in a settlement with the anesthesiologist and a $2.25 million jury award against the medical center where the procedure was performed.

When we think of medical malpractice, we may think of doctors and surgeons in particular, but the concept of liability actually extends to just about any health care practitioner who violates an applicable standard of care. Besides medical doctors, we have midwives and anesthesiologists, as described above. Of course, an anesthesiologist is actually an M.D., as is a psychiatrist, who as a doctor can prescribe medicine and also be liable for medical malpractice. Who else can be held liable for medical malpractice?

Nurses, Nurse Practitioners, Physician's Assistants - All of these positions are licensed by the state, and all of these practitioners can be liable for failing to adhere to the appropriate standard of care. Lab technicians who perform tests incorrectly or report the results inaccurately may also be liable for the damage they cause.

Pharmacists - Doctors can be liable for prescribing the wrong medicine or the wrong dosage. A pharmacist could be liable for mis-filling the prescription or typing out the label incorrectly, leading to an improper dosage.

Hospitals - ambulatory, urgent care, treatment center. In general, employers are liable for the negligence of their employees. In the case of doctors and surgeons, however, it is not always clear whether the doctor was an employee of the hospital or an independent contractor with privileges to practice at the facility. In addition to the negligence of employees, another question is whether the hospital itself had adequate policies and procedures in place and adequately trained and supervised employees.

HMOs - Health Maintenance Organizations that refuse to pay for diagnostic tests or treatment out of cost concerns may be liable for injuries that result.

The hallmark of medical malpractice is professional negligence by a health care provider which deviates from the acceptable standard or level of care in the community. If your health has been compromised by anyone in the health care field, you should contact an experienced medical malpractice attorney to discuss the circumstances surrounding your case. In Colorado, contact Paulsen & Armitage, LLC.

Judge Approves $7 Million Settlement for Failure to Provide Genetic Counseling

Earlier this month a judge in Massachusetts approved a $7 million settlement for a family who claimed medical negligence in the birth of their daughter. The child was born with a rare genetic disorder called cri-du-chat syndrome, which resulted in severe facial abnormalities and intellectual/cognitive impairment. The disorder is caused by a chromosomal abnormality which was readily detectable by genetic testing. Had the abnormality been discovered early enough, the family could have made an informed decision about whether to proceed with or terminate the pregnancy.

Definition of Genetic Counseling

Genetic counseling is defined as the communication by one or more specially trained and skilled individuals to a counselee and his or her family about the diagnosis, genetic mechanism, prognosis, and alternate courses of action available to manage a genetically determined disorder. The Council on Scientific Affairs of the American Medical Association has identified the following indications for referring a patient to a genetic counselor:

• Genetic or congenital anomaly in a family member;
• Family history of an inherited disorder;
• Abnormal development in a child;
• Mental retardation in a child;
• Pregnancy in a woman older than age 35;
• Certain ethnic backgrounds with a higher rate of genetic abnormality;
• Drug use or long-term exposure to certain toxins;
• Three or more abortions, early infant death, or both; and
• Infertility.

Failing to refer a patient to a genetic counselor, or a genetic counselor’s failure to correctly diagnose a genetic condition that later manifests itself when the baby is born or to inform a patient of the consequences of being a carrier of a genetic defect, are all grounds for potential liability. Many of the children born with these conditions bear a lifetime of expensive care and continued medical treatment. The financial recovery from a medical negligence lawsuit can help to ease the financial burden on the family and also serve to protect others from receiving similar substandard care.

Experienced Colorado Medical Malpractice Attorneys
If you are the parent of a child born with a genetic disorder, including Tay-Sach’s disease, sickle-cell anemia, phenylketonuria (PKU), or any other genetic disease, and you suspect that you were not given proper genetic counseling, you may have a cause of action against your doctor and other medical providers. For advice and assistance from experienced Colorado medical malpractice attorneys, please contact Paulsen & Armitage, LLC.

Fred Thompson Speaks Out Against Attempts to Cap Damages in Tennessee

He has played a U.S. President on film and a U.S. Senator in real life, and made a serious run for the Presidency in 2008. Now actor and statesman Fred Thompson has come out in opposition of Tennessee's HB 2008, a bill which would impose damages caps and make other "reforms" at the expense of injured persons and their families.

HB 2008 would place a limit on noneconomic damages of $750,000 per occurrence in medical malpractice cases. This means that even if multiple people were injured - a mother and child in a birth injury, for instance - no more than $750,000 total could be awarded for pain and suffering, emotional distress, and similar damages. In other personal injury cases, the cap is placed at $750,000 per plaintiff. HB 2008 also caps punitive damages to the greater of $500,000 or double the amount of compensatory damages awarded. The cap would be eliminated altogether where the defendant committed a felony or was under the influence of alcohol or illegal drugs at the time of the injury.

This bill would also disallow compensatory damages to the extent that charges have been discounted by an insurer, an issue that was brought forward in Colorado this year but died in committee. (See last month's blog)

An amendment to the bill would raise the cap to $1.25 million in some cases, including certain spinal cord injury, amputation, burn injuries, or the death of a parent leaving minor children.

Thompson is lobbying for changes in the bill to make the access to justice broader for more people, rather than narrower, as the bill would accomplish. For instance, Thompson would like to see brain injuries added to the list of cases in which the cap is raised. As an attorney who handled personal injury claims early in his legal career, Thompson knows that damages in individual cases of medical malpractice or other misconduct can easily exceed a blanket cap that applies to all.

As of this writing, HB 2008 is awaiting a vote in the Senate Judiciary Subcommittee. At Paulsen & Armitage, LLC, we monitor developments in medical malpractice law in Colorado and nationwide to always stay on the leading edge of trends and changes in the law, in order to help fulfill our mission of providing our clients with the highest quality legal service. If you or a loved one has been injured in a case involving medical malpractice or other personal injury, contact Paulsen & Armitage, LLC.

Court Ruling on Personal Injury Damages Still Stands -- For Now

A Legislative attempt to overturn a decision of the Colorado Supreme Court has died in committee, ending attempts, at least for now, to decrease the amount an injured plaintiff may recover in a personal injury lawsuit.

The Bill was HB 1106, and the Supreme Court decision was Volunteers of America v. Gardenswartz, a decision handed down in November 2010. Gardenswartz considered whether an injured plaintiff was entitled to recover damages for the full amount of medical expenses incurred, or whether the plaintiff's recovery should be limited to any discounted amount actually paid by a third-party insurance company. The court held that in accordance with Colorado's collateral source rule (C.R.S. 13-21-111.6), the plaintiff is entitled to recover in full.

Under the collateral source rule, the jury is not to consider other sources of payment, such as health insurance, to which the plaintiff may be entitled in determining the amount of damages to award. After that determination has been made, however, the court is to reduce the verdict by the amount received from that collateral source. The statute goes on, however, to provide an exception for benefits paid as a result of a contract entered into between the plaintiff and the third party. This exception allows the plaintiff to receive insurance benefits without reducing the liability of the defendant in a civil case.

The point of the collateral source rule is to make sure that a guilty, negligent defendant is not allowed to benefit from the fact that the plaintiff had insurance but instead should be liable for the entire amount of damages caused. Likewise, the plaintiff should not be penalized for purchasing insurance but instead should be entitled to a full recovery of damages.

The intent of HB 1106 was to make clear that the common law collateral source rule is abrogated (abolished) in Colorado and to overturn Gardenswartz so that a plaintiff cannot recover compensatory damage awards for medical expenses that exceed the amount ultimately accepted by the health care provider.

HB 1106 was introduced in the House on January 21 and assigned to the Judiciary Committee. It passed the House and was introduced into the Senate on March 25, where it was referred to the Senate Committee on Local Government. A vote to move the bill out of committee failed, effectively killing the bill for consideration in this session (technically it is postponed indefinitely). This issue may not go away, however, and could resurface.

We will continue to monitor this bill and other legislative developments that impact the ability of persons injured due to another's negligence or wrongful conduct to obtain a full and fair recovery of the damages caused. If you or a loved one requires legal assistance in a case of medical malpractice in Colorado, please contact Paulsen & Armitage, LLC.