D.C. Personal Injury Lawyer & Attorney : Gabriel Assaad : Assaad Law, PLLC: D.C. Injury Law Journal

No one likes going to the dentist but no one expects to die in the dental chair either. A routine dental procedure to cap several teeth turned tragic for a six-year-old Virginia boy and his family not long ago.  While under anesthesia for the dental procedure, Jacobi Hills went into cardiac arrest. The young boy was rushed to the Virginia Commonwealth University Medical Center where he died shortly thereafter. 

Jacobi Hill's family was at a loss to explain why their son died. Before Jacobi's appointment at the Virginia Commonwealth University dental clinic, his mother had taken him to the pediatrician for a check up. The pediatrician had pronounced the boy healthy and able to undergo the dental procedure. Jacobi suffered from asthma but was otherwise a normally, healthy 6-year-old. No one expected Jacobi to die in the dentist's chair.

An autopsy was performed and both the state medical examiner and university dental clinic investigated the boy's death. After a month-long investigation, the state medical examiner ruled that Jacobi Hill died of natural causes, officially listed as "cardiac dysrhythmia due to endotracheal extubation." What that means is that Jacobi died from an irregular heart beat caused when dental personnel removed a breathing tube used during his dental procedure.

In cases of medical malpractice, a ruling of natural causes often means an end to investigation unless families contact a Virginia personal injury attorney to fight for their rights and just compensation. Jacobi Hill's family would argue that there was nothing "natural" about their son's death. 

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 Everyone expects their doctor to be an expert in their field and to solve the medical problems they bring for treatment.  At least, that was common several decades ago.   Times have changed, and patients are quicker to blame a doctor when they don’t get the result they expect from a health care provider.  The truth is, while most physicians are experts who do provide a high quality of care, there are times when they make mistakes, and those mistakes can be painful and even deadly.

Medical Malpractice Law

Anyone who is injured by the mistake of a health care provider has the right to file suit to obtain compensation for his or her additional medical costs as well as pain and suffering.  The problem is, these cases are often difficult to prove.  In addition, legislators in some states have put limits, or caps on the compensation victims can be awarded in lawsuits.  Experienced personal injury lawyers can help a victim learn if their doctor is negligent in their injuries based on several parameters.

Proving a Doctors Liability for a Medical Injury

A doctor can be proved guilty of medical malpractice if they perform a negligent act or fail to perform a necessary act that results in damage or harm to a patient.  These negligent acts can occur in such areas as

·         A mistake in a diagnosis

·         An error in treatment

·         Failure to provide timely treatment

·         Failure to provide appropriate follow-up to a patient

·         Inappropriate prescriptions ordered to treat a patient

The victim must be able to prove that their physician’s treatment deviated from the generally accepted standards of treatment in that field or for that illness.  One of the requirements that most states have added to medical malpractice lawsuits is that the lawyer obtain a certificate of merit from an established expert in the medical field in question before proceeding with the lawsuit.  And in fact, medical experts are often used throughout a medical malpractice suit to prove that the defendant acted negligently in their treatment of the plaintiff.

In some cases, a victim may be unable to prove exactly how a health care provider acted negligently, causing the injury.  However, if the injury is obviously one that would not have occurred without someone’s negligence, a principle called "res ipsa loquitur," it becomes the defendant’s responsibility to prove that they were not negligent, rather than the plaintiff’s responsibility to prove that they were.

Who Is Responsible?

There are a number of possible defendants to be considered in a case of medical malpractice, especially if it is in relationship to a serious illness or injury.  When multiple doctors and nurses are involved, plus hospital care, tests, and prescriptions, it can be much more difficult to determine who is negligent in a medical malpractice lawsuit.  Some of those who can be found negligent include, among others,

·         Physicians

·         Hospitals

·         Anesthesiologists

·         Nurses

·         Pharmaceutical companies

It takes expert investigators to sift through the evidence and determine whom has liability for the injuries sustained by the victim. 

Malpractice Cases and Compensation

Medical malpractice cases are difficult to prove.  In addition, while the pain and costs involved in such injuries are extensive, the emotional toll is high, as well.  That makes it that much more important to have a skilled medical malpractice attorney who can look at a case with legal eyes rather than emotional eyes.  They can tell the victim if they have a case, and how that case should be pursued in order to obtain the compensation they deserve.

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 All health care professionals owe a duty to their patients to provide medical treatment that meets a recognized standard of care.  A medical malpractice case can be brought when this...

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Doctors and hospitals are entrusted with the care of patients. The expectation is to improve health or facilitate a cure. However, instances occur that result in further injury or death. A health care provider, usually a doctor, fails to provide the necessary care or makes a conscious choice to deviate from the standard treatment acceptable to the medical community. As a result, the courts have the obligation of determining negligence in a medical malpractice case.

Defining Malpractice

In order to judge fairly whether a medical professional did not perform the duties or treatments of the profession, it is important to define what constitute malpractice. Patients experience further injury or death, despite the best medical care available to man. Thus, the judge or jury must decide whether the patient simply took a turn for the worst, or the fault lies with the care provided. Malpractice may have occurred, if:

• The health care provider fails to provide the expected standard of treatment as determined by the medical community
• Treatment is delayed for an unreasonable period of time, resulting in further injury or death
• The health care provider fails to properly diagnose the patient
• Unsanitary conditions existed in the healthcare facility

Again, this all may constitute some form of medical negligence; however, in order to prove medical malpractice, certain elements must exist in every case. First, malpractice in some form or fashion must have occurred during the treatment of a patient. Second, the doctors negligence must have been directly related to injuries or damages incurred by a patient. Third, these damages must actually exists and be indisputably the product of the negligent actions taken by healthcare professionals.

A Malpractice Case

Although some people sue for malpractice in order to get ‘even’, the process is generally initiated for more practical and altruist reasons. Further injury generally requires addition treatment-sometimes for the balance of a lifetime. The ensuing medical expenses are astronomical. A successful lawsuit ensures the patient receives the necessary treatment and care. In the event of injury or sudden death, the courts also provide compensation for lost earning potential and anticipated wages for the years remaining before likely retirement, so the family can still pay the bills and stay in the home. Of course, a successful malpractice case against a negligent health care provider often results in revocation of licensure, so no other patient will have to endure a similar fate.

Getting Legal Help

If a health care provider is negligent, resulting in further injury or death, seek the services of a medical malpractice attorney. Discuss the merits of the case, and the potential for a successful outcome. With the help of a legal professional, learn what documentation is required, including expert witnesses to call, in order to provide the court with the necessary information, to determine the award deserved for compensation. Get the monetary amount needed to provide for current and future related medical treatment and take care of the future.

About the author:

Gabriel Assaad has successfully litigated multiple cases on behalf of injured victims in the District of Columbia, Virginia and Maryland.  Mr. Assaad graduated from a top 20 law school and is a member of national and local organizations dedicated to protecting the rights of the injured.  In addition, Mr. Assaad also volunteers as General Counsel to Mission Life Center which provided services (medical and social services) to people in need and Care in Action, an international organization providing AIDS care in Africa.

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This week Congress reconvenes in Washington, D.C. and health care reform will be front and center. This a serious concern that medical malpractice reform will be used as a bargaining chip by the Democrats and the Obama Administration in order to get a Health Care Reform bill passed.  

President Obama will be addressing the nation this evening and is expected to set forth what he wants in a health care bill.   We must keep medical malpractice reform out of the Healthcare Bill. Why? Because....

·         Medical malpractice should not be a bargaining chip. Health care reform is about making sure that every American has access to quality, low-cost health care, not about limiting the legal rights of innocent patients harmed by medical negligence.

·         Taking away patient rights does not improve the quality of our health care system or produce cost savings. Forty-eight states have already enacted medical malpractice reform measures. Yet these legal restrictions have done nothing to improve our health care system, reduce costs, or help people harmed by medical negligence.

·         Medical malpractice is about real people with real injuries. The Institute of Medicine estimates that 98,000 people die each year in the US from preventable medical errors (the 6th leading cause of death in America).

·         Defensive medicine is a myth. Both the GAO and CBO question the prevalence of defensive medicine, and have detailed how tampering with the legal system will save practically no money. Some so-called defensive medicine may be motivated more by profit and less by liability concerns.

One thing is clear - we must ALL be a part of the fight to keep medical malpractice reform out of the health care bill. 

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The Washington Post article by Lisa Rein discusses th hospitals tallying their avoidable mistakes in the District of Colmbia, Maryland, and Virginia.  In other words, the "reported" cases of medical mlpractice in these states.

The question then becomes, "what are we doing with this data?"  The articel discusses how insurance companies are not paying for some of these errors, such as Anthem Blue Cross and Blue Shield, tha will not reimburse for:

when a wrong procedure is done; when the wrong body part is operated on; when the wrong patient is operated on, and when a foreign object is left inside the patient, requiring another incision. 

However, I hope the next step is not jut tosave money for insurance companies but for pateint safety and to compensate the victms for these "avoidable mistakes" that occur at Hospitals.

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Dr. Deane Waldman, in an article in the Huffington Post, equates medical malpractice to winning the lottery.  In fact, in the beginning of his article, he posts the following tacky picture:

Has this guy ever sat down and even talkd to a victim of medical malpractice?  I bet not.  All he does is try to convine the reader of all these facts about medical malpractice and states that there is data to back it up.  However, he provides no data and the fact are all wrong.

The one area I want to address is the following comment:

Human-ness
If you accept that we are all human and that humans are by nature imperfect, what about nurses and doctors? Are they allowed to be human? No, society demands that they produce perfect results every single time time.

Yes, doctors are human, but so are the engineers that design cars, airplaines, bridges, etc. and so re air traffic controllers, and so are people like you and me that drive cars on a daily basis.  We are all held accountable for our mistakes, but doctors such as Dr. Waldman believe that they should not be.  People do not expect perfection, butpeople do expect accountability, even for doctors.

Dr. Waldman rather portray the injured as Lottery players. 

I am sure if asked whether these victims of medical malpractice would rather wn the lotter or be whole again, I believe we know what the answer would be.

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I have recently read an article by Jane Mundy,  which I thought I would like share on my blog, it discusses California medical malpractice caps and insurance, and their effect on people:
 

Several years ago Greg M. was told he had a small tumor and was given a few options; he decided upon surgery—a decision he now lives to regret, every day of his life. "I was told by Kaiser that I would be in hospital for 3 days but stayed for 8 days," says Greg. And the hospital's doctors would subject Greg to 4 more surgeries as they tried to correct the initial medical malpractice.

"They left a gaping hole between the urethra and the bladder—it wasn't connected very well," Greg explains. "I experienced a lot of leakage—my urine was not going through the catheter into the bag; instead it was leaking into my body. That happened over many days. By the seventh day of my hospital stay, the doctor moved the catheter to the correct position and it worked; now the urine was coming out properly. But the massive leaking caused irreparable scarring and my urinary system was compromised--I am still dealing with it today. 

When I tried to get Kaiser—my health maintenance organization (HMO)--to correct this problem, they told me that they didn’t know what my problem was. My doctor said he didn’t know what was causing the leakage but he would keep trying to fix the problem. I would go into the Kaiser hospital periodically and they would run some tests—they checked my urinal system for blockage and indeed it was blocked. It got so bad that I couldn't pee due to so much scar tissue. Eventually it shut down and I wound up in ER about 3 months later.

Next up, they misdiagnosed my problem—saying I had a bladder infection. But the problem was the scar tissue; I have undergone 4 subsequent surgeries since they first removed the tumor. 

Kaiser Mediation

In my attempt to get help, Kaiser denied responsibility. When you are a member of Kaiser you must sign a consent form before their doctors can operate—that applies to all major operations. In a nutshell, the form says if something goes wrong, Kaiser cannot be held responsible or liable. 

Secondly, as a Kaiser member, you must agree to mediation rather than a lawsuit. My only recourse was to take them to mediation. The mediator determined that Kaiser was at fault. Malpractice in the state of California pays a maximum of $250,000 and I was awarded this amount plus my wife was awarded $75,000 because of my loss of ability to perform sexually. I was awarded an additional $31,000 for additional medical procedures. My total settlement was $356,271. 

I am not happy with this settlement. I am wearing diapers and will likely wear them for the rest of my life. I also have erectile dysfunction, possibly for life. My estimated life span is supposed to be another 20 years (I am 60 this year) so that isn't a fair trade-off: just over $300,000 for the next 20 years with no sex and in diapers. (Another issue was brought up during the deposition: my life span has been shortened and I will probably live to be 70 or so instead of 80.)

Arbitration is final and by doing this, I think Kaiser wants to limit their liability. They have deep pockets so this amount is nothing to them but our lives have been drastically and deeply changed. Before this happened my wife and I enjoyed a healthy sex life, now we look forward to nothing. That is just the way our cards fell."

Is this fair? No sex and diapers for the next 20 years, $49/day... This poor man receives less than $50 for his injuries cause by Kaiser.  I believe that it is far from fair!!!

This is just one story of thousands of such patients that have been a victim of medical malpractice and have been victimized by the system.  It is bad enough these people are victims of negligence, but now that is just the beginning, there next step is to be victimized by the system.

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The House Judiciary Subcommittee on Commercial and Administrative Law today approved a bill which would enable armed service members and their families to hold the military accountable for medical malpractice.  

The current law prevents any such malpractice lawsuits from being filed against the military regardless of the egregiousness of the situation, a basic immuniity for the miltary healthcare providers.  Victims of medical malpractice had no recourse against the military.  

The new bill, the Carmelo Rodriguez Military Medical Accountability Act of 2009 (named after a servicement who died of skin care due to medical negligence), would legislatively reverse the U.S. Supreme Court's 1950 ruling in Feres vs. United States in which the court ruled that military members and their families have no right or ability to sue the military for negligent medical care given to them during their service.

Let's hope this bill gets passed so that the military, who fight for us, have the same rights as us civilians. That they can have access to good healthcare and have recourse for negligent healthcare.

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The CDC finds that the failure to follow proper infection control procedures has put over 60,000 people at risk in the past decade for Hepatitis. 

Hepatitis B and Care efficiently transmitted through contact with blood and other body fluids and tissues, which potentially puts healthcare providers and patients at risk of infection during medical procedures. However, such transmission can be prevented if the standard of care is followed by healthcare personnel with respect to infection control.  In an article published in the Annals of Internal Medicine on January 6, 2009, it stated that the procedure to protect people from this terrible virus are not employed.

....but all too often these are not employed, according to a review article by Nicola Thompson and colleagues in the January 6, 2009 Annals of Internal Medicine.

According to the article, in the past decade 33 outbreaks in U.S. non-hospital healthcare settings have resulted in 450 people acquiring HBV and/or HCV infection. In all these cases, transmission was presumably from patient to patient, caused by "failure of healthcare personnel to adhere to fundamental principles of infection control and aseptic technique.

See the media announcement by the CDC regarding this epidemic and failure of the health industry.  If you have contracted Hepatitis and believe that it was caused by a visit to a doctor or dentist or any other healthcare provider, you should contact an attorney.


 

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The West Virginia Record wrote on January 9, 2009 a wonderful article about former Justice Larry Starcher overviewing his last days of his term and his fight to the end to protect the rights of individuals, including the areas of medical malpractice.

CHARLESTON - To the end, the old West Virginia Supreme Court of Appeals worked hard at making decisions. And former Justice Larry Starcher worked hard at disagreeing.

Starcher filed seven dissents on Dec. 30, the last day of his 12-year term, all celebrating his conviction that judges should keep rewriting laws."

 One such dissent was a medical malpractice case which The Record summarized as follows:

 Forshey v. Jackson

Left-handed locksmith Paul Forshey developed carpal tunnel syndrome, a wrist injury. Physician Theodore Jackson performed surgery in 1995.

Forshey's pain continued and a knot formed under his thumb. Jackson set exploratory surgery but cancelled it four days ahead of time.

Jackson rescheduled it, but Forshey cancelled it four days ahead of time.

In 2005, Forshey injured his left index finger. An X-ray revealed a piece of knife blade.

In 2006, Forshey sued Jackson in Kanawha Circuit Court.

Jackson moved to dismiss, relying on state law that sets an absolute limit of ten years on a medical malpractice claim.

Forshey argued that the statute didn't start running in 1995. He argued that it started running in 1997, when Jackson cancelled the exploratory surgery.

Circuit Judge Jennifer Bailey Walker dismissed the suit, and on Nov. 25 the Justices affirmed her.

Justice Robin Davis wrote that in order to beat the statute of limitations, Forshey had to show repetitious wrongful conduct.

"Merely establishing the continuation of the ill effects of an original wrongful act will not suffice," Davis wrote.

In dissent Starcher wrote, "The injury in this case wasn't just the scalpel blade left in the plaintiff's hand."

He wrote, "It was that the defendant doctor screwed up and committed malpractice by failing to properly diagnose the error in two years of trying."

He wrote that Walker should have let Forshey pursue the action, "which most likely would have resulted in a speedy settlement."

He wrote that "this Court will do whatever it takes to protect doctors and lawyers from malpractice claims -- no matter how meritorious those claims might be."
 

I believe the last line says it all!!!!

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