Articles Posted in Medical Malpractice (Health Care Liability)

National Patient Safety Week continues and so does our discussion about preventable medical errors. Medical errors are now the third leading cause of death in the United States. Only cancer and heart-disease claim more lives.   Accidents, stroke, diabetes, chronic respiratory disease are not even close to the deaths caused by preventable medical errors. 

With that background, today we will look at medicine errors. Medicine errors can take many forms. The wrong medicine or the wrong quantity can be administered. The medicine can be administered at the wrong time resulting in either ineffective treatment or an overdose situation. Or, a medication can have a dangerous adverse drug interaction with a medication the patient is already receiving.

According to the National Patient Safety Foundation, 1.5 million Americans are harmed each year by preventable medicine errors. These errors can occur by pharmacies and by medical professionals in a hospital or long-term care setting. As a patient, there are steps you can take to help prevent medicine errors. In the event your medical condition renders you unable to monitor your medications, it can be very helpful for a family member to ensure the accuracy of any medications administered to you. 

An estimated 2,080 wrong site surgeries errors occur each year in the United States. The term wrong site surgery actually encompasses several different types of errors that occur in the operating room including wrong site, wrong side, wrong procedure and wrong patient surgeries. Wrong site surgeries are "never events" — meaning they should never happen. 

First, as the name implies, a wrong site surgery is where a surgeon actually operates on the wrong body part. Patient A is supposed to undergo an appendectomy but instead the doctor removes a kidney. An example of wrong side surgery is when the surgeon does a knee replacement on the left instead of the right leg. Sometimes surgeons will perform a surgery on the wrong patient. For instance, patient A is scheduled to have an appendectomy. But because proper protocols were not followed, the doctor actually performs the appendectomy on patient B, who was supposed to undergo a bowel resection. Finally, the doctor may have the patient, the site and the side correct but may still perform the wrong surgery. For instance, patient A is supposed to undergo an ACL repair of his right knee. Instead, the doctor performs a total knee replacement on patient A’s right knee. 

Obviously, these types of medical errors are completely and totally preventable. Here are some of the common ways wrong site surgeries occur:

In honor of Patient Safety Week, all of our blog posts this week will be related to medical malpractice and patient safety. To start, we want to give you some idea of the size of the problem and then we will examine some of the most common types of preventable medical errors and conclude the week with some steps you can take to protect yourself and your family. But, first the scope of the problem.

So how bad is it? A 2013 study by the Journal of Patient Safety estimated 400,000 Americans die each year due to preventable medical errors.   Think about that for a minute. That is the equivalent of the entire populations of Murfreesboro, Brentwood, Franklin, Gallatin, Hendersonville and Clarksville dying each year from preventable medical errors.   Staggering, to say the least.

These preventable errors do not just cost the patients and their families. According to the Journal of Health Care Finance, these medical errors are estimated to cost Americans nearly $1 trillion per year due to additional medical costs, shortened life spans and loss of productivity. 

The number of Tennessee health care liability lawsuits (formerly known as medical malpractice lawsuits) remains over 30% lower than it was just five years ago.  What follows is a list of the number of medical malpractice lawsuits filed in each of the Tennessee judicial circuits in the one year period ending on June 30, 2013.

Of course, the mere filing of a lawsuit does not mean that the claim will be successful.  Although precise data on this point is hard to come by, only about 20% of health care liability claims ultimately result in any payment to the patient.  Your odds of filing a successful claim increase if you have an experienced medical malpractice lawyer evaluate your case and, if the case is determined to have merit, pursue your case via an out-of-court settlement or trial.

Here is the data:

Tennessee Medical Malpractice Filings for the Year Ending June 30, 2013
Judicial Circuit  County or Counties in the Judicial Circuit Number of Filings
1st  Carter, Johnson, Unicoi, and Washington  8
2nd  Sullivan 20
3rd  Green, Hamblen, Hancock, and Hawkins 1
4th Cocke, Grainger, Jefferson, and Sevier 2
5th Blount 1
6th Knox 40
7th Anderson 2
8th Campbell, Claiborne, Fentress, Scott, and Union 6
9th Loudon, Meigs, Morgan, and Roane 1
10th Bradley, McMinn, Monroe, and Polk 9
11th Hamilton 27
12th Bledsoe, Franklin, Grundy, Marion, Rhea, and Sequatchie 3
13th Clay, Cumberland, DeKalb, Overton, Pickett, Putnam, and White 7
14th Coffee 2
15th Jackson, Macon, Smith, Trousdale, and Wilson 7
16th Cannon and Rutherford 15
17th Bedford, Lincoln, Marshall, and Moore 1
18th Sumner 11
19th Montgomery and Robertson 4
20th Davidson 58
21st Hickman, Lewis, Perry and Williamson 1
22nd Giles, Lawrence, Maury and Wayne 5
23rd Cheatham, Dickson, Houston, Humphreys, and Stewart 7
24th Benton, Carroll, Decatur, Hardin, and Henry 5
25th Fayette, Hardeman, Lauderdale, McNairy, and Tipton 2
26th Chester, Henderson, and Madison 9
27th Obion and Weakley 7
28th Crockett, Gibson, and Haywood 3
29th Dyer and Lake 2
30th Shelby 119
31st Warren 0

There were a  total of 385 medical malpractice filings for the year ending June 30, 2013.   

For more information about Tennessee medical malpractice cases click on the link.  If you would like us to determine if we can help you with your potential malpractice claim, file out our Contact Form.

It happens all too often: a patient wakes up from surgery to be advised all has gone well. But then weeks, months and sometimes years later, the patient starts experiencing symptoms such as pain or vomiting which do not seem to be related to any trauma or illness.   Doctors can find no explanation for the symptoms and, in some cases, the patient is treated as if the problem is in their head. Only after the symptoms become acute or when the patient and doctor are relentless in their search for an answer is the real culprit revealed: a retained object from the surgery. 

Retained objects come in many forms including scalpels, clamps, scissors, tubing, needles. But, the most common is sponges which account for about two-thirds of all retained objects. The most common method for tracking sponges is a simple manual count. But clearly, that old-fashioned method is not effective as it should be because each year roughly 4,000 cases of retained surgical items are reported in this country. 

Technology exists which is much better at preventing retained object cases. Sponges can be tracked through the use of a radio-frequency tag. The tag itself is tiny — roughly the size of a grain of rice and is embedded in each sponge. At the end of the surgery, the system can detect if any sponges were forgotten inside the patient. In a study conducted at the University of North Carolina at Chapel Hill, this system prevented 23 sponges being left in surgical patients over the course of just 11 months. And the cost for this added patient security? About $10.00 per procedure. The additional time to use the system before closing the patient? About 12 seconds.

Tennessee law requires almost always requires that a medical expert testify that a health care provider improperly treated the patient.  This expert must be familiar with the standard of care applicable to the health care provider at the time of the alleged wrong and must explain how the care actually given by the provider was inconsistent with what the standard of care required.  

A medical expert must also link the failure to follow the standard of care to an injury to (or death of) the patient.

There are some people (and even some lawyers) who think that the evidence of malpractice or injury is so clear that an expert witness should not be required.  It is true that sometimes an expert is not required in Tennessee medical malpractice cases, but such cases are extremely rare.  Never assume that your case will not require expert medical testimony unless an experienced Tennessee medical malpractice lawyer informs you that expert testimony is not required.

Tennessee law requires that appropriate action must be taken to initiate a Tennessee medical malpractice lawsuit (now known as a health care liability action) within one year of the date of the incident that causes an injury.  Cases are initiated by serving a formal notice on the persons or entities that may be sued in the case.  Filing the notice is a complicated endeavor, and it is recommended that you seek legal advice and a lawyer’s help in giving notice.  I strongly discourage a patient from attempting to comply with the notice law without the assistance of a lawyer.

Under certain circumstances, you may have additional time to file suit.  That is, the date the one-year period for taking legal action may begin on a date later than the date of the error that caused the injury or death.  However, determining whether one of these exceptions applies to your claim is a complicated, risky endeavor, and you are advised to never assume that the deadline for taking legal action will expire after the one-year anniversary date of the incident which caused the injury or death.  Seek the advice of an experienced Tennessee medical malpractice lawyer for help identifying whether any exception to the general rule applies under the facts of your situation.

Usually, a lawyer will need to review your medical records to determine when the deadline for taking legal action.  It can take six weeks or more to obtain the appropriate records from the health care providers.  Do not – I repeat, do not – wait eight or nine months after an injury has occurred to seek the advice of a lawyer.  An experienced medical malpractice lawyer needs time to obtain and evaluate the medical records.

In Tennessee the vast, vast majority of physicians have medical malpractice insurance.  The medical malpractice insurance company not only hires a lawyer to defend the doctor in the event a medical malpractice (now called health care liability) lawsuit is filed in court but also pays money toward any settlement or judgment in the case.  The amount that the company will pay is an amount up to the insurance policy limits actually purchased by the doctor or the company the doctor works for.  The company also employs a team of professionals who evaluate claims and supervise the litigation process.

In fact, in over 30 years of representing patients in medical malpractice claims against doctors and other health care providers, I have never come across a single doctor in Tennessee who did not have professional liability insurance.  There are states, such as Florida, where there appears to be a significant number of uninsured doctors, but that is not an issue in Tennessee.

One reason for this is that doctors own the largest physician professional liability insurance company in the state and, in essence, sell insurance to themselves.  A large number of the doctors who do not work for educational centers (like Vanderbilt) or as employees of hospitals purchase professional liability insurance coverage from this company, State Volunteer Mutual Insurance Company.  Insurance rates for doctors are less than they were twenty years ago (after adjusting for inflation).

A Tennessee medical malpractice lawyer must prove the following things to prove a medical malpractice (now called a health care liability) case in Tennessee:

1.  The standard of care for the health care provider.  For example, if the claim is that a family doctor failed to timely diagnose an infection, the patient’s lawyer must prove what a family doctor should do when presented with the information available to the doctor at the time of the alleged failure to diagnose the infection.  The standard of care must be proved by another doctor of the same or similar specialty, and that doctor must practice medicine in Tennessee or a state adjoining Tennessee.

2.  The failure of the health care provider to follow the standard of care.  Thus, using the same example, the patient’s lawyer must demonstrate that the doctor did not comply with the standard of care, that is, that the doctor either did something the doctor should not have done or failed to do something the doctor should have done.

Tennessee law requires that certificate of good faith be filed with the Court at the time a medical malpractice (now called a health care liability) lawsuit is filed. 

The certificate of good faith form is found on the website of the Tennessee Administrative Office of the Courts.   The form requires the signer to certify that he or she has consulted with and has a signed statement from one or more experts who say that the case has merit.  

The failure to file the form with the lawsuit will result in dismissal of the case.