Indiana Injury Law Blog

“The names of the patients whose lives we save can never be known. Our contribution will be what did not happen to them. And, though they are unknown, we will know that mothers and fathers are at graduations and weddings they would have missed, and that grandchildren will know grandparents they might never have known, and holidays will be taken, and work completed, and books read, and symphonies heard, and gardens tended that, without our work, would never have been.”

These are the words of Donald M. Berwick, MD, MPP, President and CEO of Institute for Healthcare Improvement, an organization dedicated to making the "flawed" healthcare system safer and more effective, and ensuring the best possible outcomes for all patients.

In support of its view that the system is flawed, the Insitute cites the following statistics:

The Institute of Medicine estimates that as many as 98,000 people die each year in US hospitals due to medical injuries;

The Centers for Disease Control and Prevention estimate that two million patients suffer hospital-acquired infections each year;

The US spends the most money on health care of all (advanced) industrialized nations, but it performs more poorly than most on many measures of health care quality.

The Institute recognizes that the system is highly complex with many broken parts, but believe that, given remarkable examples of excellence, it is possible to redesign the way patient care is delivered. Unfortunately, these examples are too few and far between. As stated by the Institute of Medicine in 2001, “Between the health care we have and the care we could have lies not just a gap, but a chasm.” Health care does not yet reliably transfer best-known science into action, and processes frequently fail, despite the best intentions of a dedicated and highly skilled workforce. Our system, which intends to heal, too often does just the opposite — leading to unintended harm and unnecessary deaths at alarming rates.

Accordingly, the Institute has launched a nationwide "100,000 Lives Campaign" in an attempt to reduce morbidity and mortality within the healthcare system by introducing proven practices to assist participating hospitas in saving as many as 100,000 lives.

The insitute is recommending that participating organzations implement the following steps:

· Deploy Rapid Response Teams the first sign of patient decline;

· Deliver Reliable, Evidence-Based Care for Acute Myocardial Infarction to prevent deaths from heart attacks;

· Prevent Adverse Drug Events (ADEs) by implementing medication reconciliation practices;

· Prevent Central Line Infections by implementing a series of interdependent, scientifically grounded steps called the "Central Line Bundle"

· Prevent Surgical Site Infections by delivering the correct perioperative antibiotics at the proper time; and

· Prevent Ventilator-Associated Pneumonia by implementing a series of interdependent, scientifically grounded steps including the "Ventilator Bundle"

Visit the Insittute's website for more information. Also, upon your admission to a hospital, inquire as to whether that institution is participating in the Campaign. Whether they do or not could directly affect your outcome. Be an informed healthcare consumer!

ProAssurance, also known as ProNational, is a national medical malpractice insurer that provides insurance coverage to a significant amount of Indiana physicians. In Indiana, they have apparently adopted the strategy of taking almost every case to trial, even if the claim clearly has merit and even if the Medical Review Panel unanimously finds against their insured doctors. I believe this is part of an overall strategy to discourage attorneys from handling medical malpractice cases against ProAssurance insureds because of the large costs and time involved in taking cases to trial. Sometimes, however, the strategy can backfire.

Recently, plaintiffs in a Florida medical negligence claim received a jury verdict or $217,000,000 against ProAssurance insureds. The Tampa Tribune wrote about ProAssurance's response:

"ProNational Insurance Co., that represents the doctors, has filed court documents that say it is not responsible for paying because the doctors gave conflicting testimony in court. Yerrid [the plaintiffs' attorney] said he will go after anyone necessary to collect, starting with ProNational. The Insurance Company offered $300 Before trial, Yerrid said, he tried to get the insurance company to settle for the maximum allowed under the policy - $1 million for doctor Austin and $1 million for the physicians' group. Instead, the insurance company wanted to settle for $300. Yerrid said it offered $100 for Navarro, $100 for his wife and $100 for his 10-year-old son."

So here, ProAssurance refused to settle an obviously indefensible claim in good faith, and when a jury told them that they clearly should have settled the case, the company tries to wiggle out of their obligation. And the reason they use to attempt to avoid responsibility is because their insured doctors testified differently. I can't imagine any ProAssurance doctors would be too happy to learn that their insurance coverage could be dependent upon the way they testify at trial.

Barry Rooth

Because our firm handles a lot medical malpractice cases, I have had the opportunity to speak to hundreds of patients who have had poor outcomes from surgeries, procedures, etc. I've learned that, almost uniformly, when people require a medical procedure, they are rightly concerned about the experience of the surgeon who will be performing the procedure. This should not, however, be their only concern.

When my clients talk about their surgeon, I ask them about the experience and credentials of the anesthesiologist; I ask them about the background of the consultants who will likely be called in; and I ask them about the experience of the radiology and pathology groups that have the contracts with the hospital.

When they respond with blank stares, I explain as follows:

Naturally, it is important to know the qualifications and credentials of the surgeon performing the procedure. And the more serious the operation, the more intensive the questioning should be. However, that physician is only part of the team taking care of you during the hospitalization. If I were having surgery, I would be just as concerned about the credentials of the anesthesiologist who literally holds your life in his hands during the procedure. I'd also be very curious about whether the anesthesiologist will even remain in the operating room or whether the hospital will allow them to hand you over to a nurse anesthetist. This is essential information because If something goes wrong during surgery, it is likely that the anesthesiologist who will be primarily responsible for managing the crisis.

The bottom line is this: If you're going to have surgery, ask about the all of the physicians who will take care of you, not just the surgeon. The strength of your medical team is only as good as its weakest member.

Barry Rooth

Hospitals don't provide all the information you need to know. The following September 12, 2006 smartmoney.com article provides the following Top-10 list of things the hospital won't tell you:

1. "Oops, wrong kidney."
In recent years errors in treatment have become a serious problem for hospitals, ranging from operating on the wrong body part to medication mix-ups. According to a report from the Institute of Medicine, at least 1.5 million patients are harmed every year from being given the wrong drugs — that's an average of one person per U.S. hospital per day. One reason these mistakes persist: Only 10% of hospitals are fully computerized, with a central database to track allergies and diagnoses, says Robert Wachter, chief of the medical service at UC San Francisco Medical Center.

But signs of change are emerging. More than 3,000 U.S. hospitals, or 75% of the country's beds, have signed on for a campaign by the Institute for Healthcare Improvement implementing new prevention measures such as multiple checks on drugs. As of June these hospitals had prevented an estimated 122,300 avoidable deaths over 18 months.

While the system is improving, it still has a long way to go. Patients should always have a friend, relative or patient advocate from the hospital staff at their side to take notes and make sure the right meds are being dispensed.

2. "You may leave sicker than when you came in."
A week after Leandra Wiese had surgery to remove a benign tumor, the high school senior felt well enough to host a sleepover. But later that weekend she was throwing up and running a fever. Thinking it was the flu, her parents took her to the hospital. Wiese never came home. It wasn't the flu, but a deadly surgical infection.
About 2 million people a year contract hospital-related infections, and about 90,000 die, according to the Centers for Disease Control and Prevention. The recent increase in antibiotic-resistant bugs and the mounting cost of health care — to which infections add about $4.5 billion annually — have mobilized the medical community to implement processes designed to decrease infections. These include using clippers rather than a razor to shave surgical sites and administering antibiotics before surgery but stopping them soon after to prevent drug resistance.

For all of modern medicine's advances, the best way to minimize infection risk is low-tech: Make sure anyone who touches you washes his hands. Tubes and catheters are also a source of bugs, and patients should ask daily if they are necessary.

3. "Good luck finding the person in charge."
Helen Haskell repeatedly told nurses something didn't seem right with her son Lewis, who was recovering from surgery to repair a defect in his chest wall. For nearly two days she kept asking for a veteran — or "attending" — doctor when the first-year resident's assessment seemed off. But Haskell couldn't convince the right people that her son was deteriorating. "It was like an alternate reality," she says. "I had no idea where to go." Thirty hours after her son first complained of intense pain, the South Carolina teen died of a perforated ulcer.
In a sea of blue scrubs, getting the attention of the right person can be difficult. Who's in charge? Nurses don't report to doctors, but rather to a nurse supervisor. And your personal doctor has little say over radiology or the labs running your tests, which are managed by the hospital. Some facilities employ "hospitalists" — doctors who act as a point person to conduct the flow of information. Haskell urges patients to know the hospital hierarchy, read name tags, get the attending physician's phone number and, if all else fails, demand a nurse supervisor — likely the highest-ranking person who is accessible quickly.

4. "Everything is negotiable, even your hospital bill."
When it comes to getting paid, hospitals have their work cut out for them. Medical bills are a major cause of bankruptcy in the U.S., and when collectors are put on the case, they take up to 25% of what is reclaimed, according to Mark Friedman, founder of billing consultant Premium Healthcare Services. That leaves room for some bargaining.

Take Logan Roberts. The 26-year-old had started work as a business analyst near Atlanta but had no insurance when he was rushed to the ER for an appendectomy. The uninsured can pay three times more for procedures, says Nora Johnson, senior director of Medical Billing Advocates of America; Roberts was billed $21,000. "I was like, holy cow!" he says. "That's four times my net worth."

After advice from advocacy group The Access Project, Roberts spoke with hospital administrators, telling them he couldn't pay in full. Hospitals frequently work with patients, offering payment plans or discounts. But to get it, you have to knock on the right door: Look for the office of patient accounts or the financial assistance office. It paid off for Roberts, whose bill was sliced to $4,100 — 20% of the original.

5. "Yes, we take your insurance — but we're not sure about the anesthesiologist."
The last thing on your mind before surgery is making sure every doctor involved is in your network. But since the answer is often no for anesthesiologists, pathologists and radiologists, what's a patient to do? Los Angeles-based entertainment lawyer and patient advocate Michael A. Weiss repeatedly turned away out-of-network pain-management doctors on a recent visit to the hospital.
We're not suggesting you go as far as Weiss did to save money, but do ask for someone in your network if you're alert enough. If it's an emergency and you're stuck with an out-of-network doctor, call your insurance company to help resolve the issue. If it's elective surgery, ask a scheduling nurse in the surgeon's office to find specialists in your plan, says South Bend, Ind.-based billing sleuth Mary Jane Stull. And if you know your procedure will be out-of-network, call the hospital billing department to negotiate. It will likely point you to a patient representative or the director of billing. Once you've dealt with the hospital, then try the surgeon or other specialists involved — some hospitals will back you in those discussions, Friedman says.

Continue reading "Doctors and hospitals may commit medical malpractice by not telling patients what they need to know" »

In 1975, the Indiana legislature passed the Indiana Medical Malpractice Act, which severely limited the rights of Indiana Patients. Among other things, the Act required that all claims against health care provider be submitted to a Medical Malpractice Review Panel, who would determine whether or not the defendant committed malpractice. Since 1996, only slightly more than 20% of all Panels formed in the State found malpractice. Once the Panel renders their opinions, the case can then be filed in Court. There are other limitations imposed upon patients in the Act, which will be discussed in other blogs. For now, suffice it to say that the Act is bad for Indiana patients.

Lately, the health care providers' insurance companies and their attorneys have been throwing up additional hurdles to patient's claims. For example, the intent of the legislature in instituting the Medical Review Panel process was to discourage the prosecution of frivilous claims, and promote settlement of those claims that were found by the Medical Review Panel to have merit. However, at least one large physician insurance company has apparently adopted a policy of taking all cases to trial, regardless of whether the Medical Review Panel has unanimously found against the insured doctor. In other words, the defense strategy in each of those cases is to refuse to settle meritorious cases and force the plaintiff to spend large sums of money to try a case to a jury, even though a panel of the defendant's peers has determined that the defendant has committed malpractice. This is apparently a numbers game for the insurance company. They must figure that, given the current political climate, they'll win more than they lose and will save money along the way.

My attitude is this: When I determine that a medical negligence case has merit, I'm willing to go "all the way" for my client, even if that means taking it to trial. In other words, in those cases where it's clear that the defendant's malpractice caused serious injury or death, I'm always willing to trust the collective judgment of the jury, and I have no problem placing my client's fate in their hands. They'll do the right thing many more times than not.

The Indiana Medical Malpractice Act ("IMMA"), I.C. 34-18-1-1, et seq., created a Patient's Compensation Fund for the purposes of collecting and receiving monies to be used to pay patient's claims for medical malpractice. The Indiana Commissioner of Insurance adminsters the Fund..

These monies are received by the Fund in the form of surchages paid by physicians, which are then invested and managed by the Fund, and made available for payout to patients making claims against the Fund.

The Fund publishes annual reports, which provide a substantial amount of data, statistics, and information about the type and number of malpractice cases that are filed and settled in a given time period.

The IMMA requires, among other things, that all claims against health care provider qualified under the IMMA be reviewed by a panel of 3 doctors, known as a Medical Review Panel. The Panel renders opinons concerning the quality of care provided by the defendants. I've always believed that the Panel process has an inherent flaw in that it asks physicians to pass judgment on their colleagues in their home state, or even in their same locale, which would result in less than obejctive Panel reviews.

The Fund's Annual Report for 2005 appears to support this conclusion. The Report discloses that from 1976 through 2005, medical malpractice plaintiffs have filed a total of 20,035 medical malpractice complaints, resulting in 9441 Panel opinions through 2005. Of those opinions, the Panel has rendered 2049 opinions of "malpractice", representing 21.17% of the Panel decisions. I do not believe this number accurately reflects the actual number of meritorious claims filed during this time period and supports the conclusion that the Medical Review Panel process is skewed in favor of physicians.

Barry Rooth