Hasenyager & Summerill: Utah's Wrongful Death & Personal Injury Attorneys
medical malpractice
Medical Malpractice Lawsuits In Utah - A Step Forward for Patient Rights
10/22/12
Early Disclosure - Early Resolution: Medical Malpractice Mistakes, Compensation & Progress in Utah
I recently had the honor of meeting with Utah Lt. Governor Greg Bell, Dr. Ed Clark, and Dr. Lisa Gunther. As an attorney who works with patients harmed or killed due to a medical mistake, I was apprehensive and very suspicious. The program presented to us by Dr. Clark is an ‘early disclosure, early resolution’ system whereby doctors, nursing and hospital staff acknowledge whenever there has been an error which caused harm or death to a patient. The staff then disclose this fact to the patient and/or their family and they are offered the opportunity to openly discuss the occurrence and also offered the opportunity to work toward a mediated compensation arrangement.
Lt. Governor Bell posted about patient oriented medical malpractice reform on his blog. Highlights include:
- Medical malpractice does occur sometimes and when it does the patient should be compensated.
- [W]e must permit, and the Utah and U.S. Constitutions ensure that citizens have the right to present their case to a court.
- When an adverse event occurs, the doctor and hospital disclose the problem and its cause to the patient. The patient may involve their family and hire counsel if they wish. No waiver of liability is required. The doctor and hospital will give consolation and advice, and if warranted, apologize, accept responsibility, and give fair compensation.
- The beauty of this method is that the paramount relationship of doctor-patient is preserved rather than destroyed in an adversarial climate. This system requires no legislation, is completely voluntary, and is a human rather than a legal solution to real human problems.
Not specifically mentioned by the Lt. Governor, but equally important, the transparency associated with such a system also increases patient safety. By discussing the medical negligence early and openly, steps can be taken to prevent similar cases from occurring in the future. Additionally, the family can obtain compensation at an earlier stage, leading to improved care and financial ability to deal with the consequences that inevitably flow from a medical error that can either result in death or serious impairment.
Most importantly, the medical malpractice mediation approach allows the family and victims to bring a Utah medical malpractice attorney with them to any mediation. This is very important because the hospitals and risk managers on the other side of the table have a tremendous information advantage over the injured malpractice victims. By allowing families to bring lawyers, the family can be assured that they are adequately represented and get a fair shake through any medical malpractice mediation program.
Hospitals Are Killing Us
09/25/12
Are Utah Hospitals and Doctors Killing Their Patients?
A recent Wall Street Journal article does an amazing job of setting out the truth about medical malpractice, death and injury:
“When there is a plane crash in the U.S., even a minor one, it makes headlines. There is a thorough federal investigation, and the tragedy often yields important lessons for the aviation industry. Pilots and airlines thus learn how to do their jobs more safely.
The world of American medicine is far deadlier: Medical mistakes kill enough people each week to fill four jumbo jets. But these mistakes go largely unnoticed by the world at large, and the medical community rarely learns from them.”
You can read the full article here. The article is authored by a physician and, in plain and simple terms, details the problem with american hospitals and healthcare. There is a built in code of silence which prevents people, consumers, patients and their families from ever learning the truth about how a loved one suffered from a preventable medical mistake. We often hear clients tell us that they just cannot get a straight answer from anyone or, worse, that a nurse or other healthcare provider has ‘whispered’ to them and told them they should seek an attorney to help investigate the death or injury. The healthcare industry should be alarmed that so many people die and are injured by medical malpractice. The cure to malpractice litigation is to stop killing and injuring patients. Tort reform does nothing more than treat the symptom of a disease and, as any doctor can tell you, you must find the source in order provide a cure.
Medical Malpractice - Victim Claims Not Breaking the Bank
08/17/12
Exposing Medical Malpractice Myths - The Only Crises Are Those Faced By Victims
It is almost universally and unquestionably accepted: medical malpractice lawyers are to blame for increased costs of health insurance. Sadly, the victims of medical malpractice almost always get lost in this discussion. The only universal truth is that people injured by negligence or their families in cases of death are almost never made whole by a lawsuit. The doctor’s and hospital’s lawyers get paid hourly to fight these claims and the longer they drag on, the more the defense lawyers get paid. Utah lawyers representing medical malpractice plaintiff’s in lawsuits know that, contrary to popular belief, neither the medical malpractice insurers nor the doctors are going broke over lawsuits.
By almost any measure, medical malpractice payments were at their lowest level on record in 2011, a new Public Citizen report shows. Both the number of medical malpractice payments made on behalf of doctors and the inflation-adjusted value of such payments were at their lowest levels since 1991, the earliest full year in which the government collected such data. But, contrary to the promises of policy makers and leaders of physician groups who have spent the past two decades championing efforts to restrict patients’ legal rights, there is no evidence that patients have received any benefits—economic or otherwise—in exchange for ceding access to legal remedies. Instead, the evidence suggests that malpractice victims, taxpayers, and ordinary patients are almost certainly bearing significant costs for uncompensated medical errors. (Source: Public Citizen).
Utah Injury Lawsuits And Collateral Sources
08/02/12
The Collateral Source Rule in Utah: Evidence of Insurance in Personal Injury, Wrongful Death and Medical Malpractice Lawsuits
Often times, whenever there is an injury or death, health insurance has paid some of the medical expenses that occur. When there is a lawsuit for medical malpractice, wrongful death or personal injury, the health insurance companies expect that they can be repaid for the damages caused by the negligence of the defendant. In other words, just because you have health insurance, doesn’t mean that a physician or defendant should be given the benefit of that insurance. So, as part of any recovery, often times the health insurance companies will need to be reimbursed out of any recovery or judgment obtained against the defendant in a personal injury lawsuit under Utah law.
However, this doesn’t mean that the jury or the court should consider evidence of that insurance. Specifically, juries and courts do not consider the existence or payment by health insurance for injuries sustained as a result of negligence. Accordingly, lawyers are not allowed to refer to the existence of health insurance as part of their case because it may prejudice the jury and reduce the ultimate amount of liability imposed upon the defendant. In a recent Utah Supreme Court case, Wilson v IHC,the court ruled that even hinting or alluding to the existence of health insurance or payment of benefits for the plaintiff is wrong and should not be done. The tortfeasor, also known as the defendant, in a medical malpractice, wrongful death, or personal injury lawsuit under Utah law must be held accountable for the full amount of the harm that they have cost. This is irrespective of the existence of any health-insurance benefits. Moreover, the health insurance companies are entitled to reimbursement in any event. Even if they are not a party to a lawsuit currently before the jury.
Injury Lawsuits, Utah Law and Lawyers
06/08/12
Embarrassed to file a Utah lawsuit for personal injury
The most common theme from every client and potential client we meet with? “I never thought I’d be the type of person to sue for medical malpractice/personal injury/auto accident.” Unfortunately, many people do not realize just how devastating the costs can be from a personal injury accident. Medical malpractice victims can experience the worst of injuries, including death, because a simple procedure, or safety rule was not followed, i.e. the doctor, nurse or hospital was negligent. So, too, in auto accident cases, people can be catastrophically harmed and lose enormous amounts of wages, aka lost income, because someone ignored a stop sign, failed to yield the right-of-way, or was distracted by their cell phone or text message.
Personal injury lawyers and lawsuits enforce accountability and act as a deterrent to negligent conduct.
Although there may be some embarrassment in pursuing a lawsuit for personal injury, people need to understand that lawyers and these type of lawsuits support to very important principles of justice. First, someone hurt by the negligence of another should not be forced to bear the costs. Just because someone wasn’t paying attention or violated a safety rule, doesn’t mean that the victim should have to shoulder the costs of lost wages, medical expenses and pain and suffering. Our justice system demands that the wrongdoer be held accountable for the harm that they cause. Second, if hospitals, doctors, drivers and corporations know that they will be held accountable for ignoring safety rules, they will act more carefully to follow keep people safe from harm. This is called the ‘deterrent’ effect of personal injury law. Deterrence works to keep people following safety rules and to keep them from acting negligently in a way that causes needless injury or death.
Don’t let a negligent actor become a repeat offender. Only by pursuing a lawsuit can we enforce accountability and deter future negligence. Talk to one of our Utah injury attorneys today.
Bowel Injury and Medical Malpractice in Utah
05/03/12
Bowel injuries commonly occur during medical procedures and can lead to extreme complications including sepsis and death. Medical malpractice claims often arise at the point that doctors and hospitals fail to recognize the existence of a bowel injury.
The simple fact of a bowel, colon or intestinal perforation is not, usually, the result of medical malpractice. Such injuries are often a known risk of undergoing a procedure such as hernia repair, gastric bypass, gall bladder removal or other abdominal procedure. Diverticulitis can also give rise to a perforated bowel. Whether the injury occurs during surgery such as laparotomy or laparoscopy, or arises spontaneously, the important thing is that the injury is treated. If the hole in the bowel is significant enough, it may require surgical intervention. Other times, placing drains and starting antibiotics is sufficient to treat the condition and the perforation will heal on its own.
In the absence of treatment, feces, stool and other intestinal contents begin leaking into the peritoneum. The bacteria and disease from these bowel contents quickly give rise to abdominal pain and begin to create an infectious process and inflammation. Bowel movements may cease as does passing gas. The stomach becomes bloated and painful. Eventually, other organs become involved as the colon continues to breakdown. If left untreated, sepsis sets in and portions of the colon and bowel begin to die. The need for intervention and proper care from surgeons, doctors and hospital is key because eventually death will result.
A key component to any medical malpractice claim for perforated bowels is timing and an understanding of the legal claims involved. A good medical malpractice lawyer should be consulted regarding the potential for a lawsuit.
The simple fact of a bowel, colon or intestinal perforation is not, usually, the result of medical malpractice. Such injuries are often a known risk of undergoing a procedure such as hernia repair, gastric bypass, gall bladder removal or other abdominal procedure. Diverticulitis can also give rise to a perforated bowel. Whether the injury occurs during surgery such as laparotomy or laparoscopy, or arises spontaneously, the important thing is that the injury is treated. If the hole in the bowel is significant enough, it may require surgical intervention. Other times, placing drains and starting antibiotics is sufficient to treat the condition and the perforation will heal on its own.
In the absence of treatment, feces, stool and other intestinal contents begin leaking into the peritoneum. The bacteria and disease from these bowel contents quickly give rise to abdominal pain and begin to create an infectious process and inflammation. Bowel movements may cease as does passing gas. The stomach becomes bloated and painful. Eventually, other organs become involved as the colon continues to breakdown. If left untreated, sepsis sets in and portions of the colon and bowel begin to die. The need for intervention and proper care from surgeons, doctors and hospital is key because eventually death will result.
A key component to any medical malpractice claim for perforated bowels is timing and an understanding of the legal claims involved. A good medical malpractice lawyer should be consulted regarding the potential for a lawsuit.
Physicians & Third Party Safety
04/04/12
Doctors must consider the safety of other people besides the patient when providing their services. If a physician knows or should know that his treatment can harm people who come in contact with the patient, the doctor is responsible for that harm including wrongful death. The most obvious example would be a doctor who injects a patient with a drug that makes the patient a hazard to the driving public. If the patient, under the influence of the drug, then leaves the clinic crashes into a family, the doctor may be responsible for giving the patient a drug and allowing him to drive away from the clinic.
The Utah Supreme Court recently held in Jeffs v West, 2012 UT 11 (February 28, 2012) that a physician owes non-patients a duty to exercise reasonable care when prescribing medications that pose a risk of injury to third parties. The patient received medical treatment from a nurse practitioner Draper and was prescribed at least six different medications, including Concerta, Valium, Doxepin, Paxil, pregnenolone, and testosterone. With all of these drugs in his system, the patient shot and killed his wife. The children claimed that the clinic and nurse practitioner were negligent in prescribing this cocktail of drugs which dramatically altered the ability of the patient to reason and think, bringing about a violent outburst and his wife’s death.
Often, under Utah law, the question of liability turns on whether there is a “special legal relationship.” The defendants contended that healthcare providers owe no duty to a non-patient who has been injured by a patient unless the patient has a special relationship with the provider—such as where the provider has custody or control of the patient, or where the provider is on notice that the patient is uniquely dangerous to specified third parties. However, in this case, the Utah Supreme Court rejected this argument. Instead, the court sided with the plaintiffs, who argued that a special relationship is required “only where a claim is based on an omission or a failure to act.” The court held that acts of misfeasance, or “active misconduct working positive injury to others,” typically carry a duty of care. On the other hand, the court ruled that passive inaction, or “a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant,” generally implicates a duty only in cases of special legal relationships.
Because the doctor actively prescribed a dangerous cocktail of medications to the patient, the doctor and clinic could be held accountable for the harm caused, in this case the wrongful death of the mother. “Healthcare providers perform a societal function of undoubted social utility. But they are not entitled to an elevated status in tort law that would categorically immunize them from liability when their negligent prescriptions cause physical injury to non-patients. We uphold a duty of healthcare providers to non-patients in the affirmative act of prescribing medication, and reverse the district court’s conclusion to the contrary.”
The Utah Supreme Court recently held in Jeffs v West, 2012 UT 11 (February 28, 2012) that a physician owes non-patients a duty to exercise reasonable care when prescribing medications that pose a risk of injury to third parties. The patient received medical treatment from a nurse practitioner Draper and was prescribed at least six different medications, including Concerta, Valium, Doxepin, Paxil, pregnenolone, and testosterone. With all of these drugs in his system, the patient shot and killed his wife. The children claimed that the clinic and nurse practitioner were negligent in prescribing this cocktail of drugs which dramatically altered the ability of the patient to reason and think, bringing about a violent outburst and his wife’s death.
Often, under Utah law, the question of liability turns on whether there is a “special legal relationship.” The defendants contended that healthcare providers owe no duty to a non-patient who has been injured by a patient unless the patient has a special relationship with the provider—such as where the provider has custody or control of the patient, or where the provider is on notice that the patient is uniquely dangerous to specified third parties. However, in this case, the Utah Supreme Court rejected this argument. Instead, the court sided with the plaintiffs, who argued that a special relationship is required “only where a claim is based on an omission or a failure to act.” The court held that acts of misfeasance, or “active misconduct working positive injury to others,” typically carry a duty of care. On the other hand, the court ruled that passive inaction, or “a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant,” generally implicates a duty only in cases of special legal relationships.
Because the doctor actively prescribed a dangerous cocktail of medications to the patient, the doctor and clinic could be held accountable for the harm caused, in this case the wrongful death of the mother. “Healthcare providers perform a societal function of undoubted social utility. But they are not entitled to an elevated status in tort law that would categorically immunize them from liability when their negligent prescriptions cause physical injury to non-patients. We uphold a duty of healthcare providers to non-patients in the affirmative act of prescribing medication, and reverse the district court’s conclusion to the contrary.”
Utah Supreme Court Recognizes Wrongful Death Claim for Unborn Child
03/28/12
In Carranza v. United States, the parents brought wrongful death action against the United States after the death of their unborn child. Although there was no majority opinion, four members of the court held that a state statute allows an action for the wrongful death of an unborn child; the term “minor child,” as used in the statute, includes an unborn child. The case involved a claim for wrongful death following the stillbirth of the parents child. The parents alleged medical negligence and sought damages for their pain and suffering, for the wrongful death of their child, and for expenses related to the child’s death. The United States sought to exclude all evidence regarding damages due to wrongful death. Although the justices differed in their reasoning, the court held that a claim can be maintained for the death of an unborn minor child. Contact an attorney who handles wrongful death and medical malpractice claims if you need help. The complete opinion on the status of an unborn child and the ability to bring a wrongful death claim can be downloaded.
Carranza v United States
Carranza v United States
Advanced Care Health Directives
04/16/11
One thing you can do to help your family in the event you suffer a permanent injury due to negligence or medical malpractice is to make sure you have an advance care health directive in place. Often, the consequences of medical malpractice can you leave you in a comatose or persistent vegetative state. Or, a sudden traumatic event such as a car crash or accident can leave you unable to voice your opinions regarding your own healthcare.
Many people have very personal desires about how their healthcare should be handled under these difficult circumstances. Unfortunately, Mom might think that all life care measures should be given while Spouse thinks that only maintenance type measures, such as feeding tubes, should be maintained because that’s what her Husband told her. Don’t leave your family arguing over your hospital bed in addition to dealing with the grief of knowing that a loved one has been permanently incapacitated due to the negligence of a hospital, nurse or doctor.
Under Utah law, there is a very simple form that everyone should fill out ... RIGHT NOW. Waiting until a car crash or anesthesia overdose may be too late. There is a very simple form available online and approved by the Utah Department of Human Services. You can fill the form out online by going here or you can click this link to download a copy of the form. Once you have filled the form, give a copy to your loved ones, especially the person named to make a decision. No one wants to think about the worst thing that can happen. So, you shouldn’t force those you love to think about it or worse, argue over the decision because you didn’t take the time to fill out a simple form.
Many people have very personal desires about how their healthcare should be handled under these difficult circumstances. Unfortunately, Mom might think that all life care measures should be given while Spouse thinks that only maintenance type measures, such as feeding tubes, should be maintained because that’s what her Husband told her. Don’t leave your family arguing over your hospital bed in addition to dealing with the grief of knowing that a loved one has been permanently incapacitated due to the negligence of a hospital, nurse or doctor.
Under Utah law, there is a very simple form that everyone should fill out ... RIGHT NOW. Waiting until a car crash or anesthesia overdose may be too late. There is a very simple form available online and approved by the Utah Department of Human Services. You can fill the form out online by going here or you can click this link to download a copy of the form. Once you have filled the form, give a copy to your loved ones, especially the person named to make a decision. No one wants to think about the worst thing that can happen. So, you shouldn’t force those you love to think about it or worse, argue over the decision because you didn’t take the time to fill out a simple form.
But Will It Carry Malpractice Insurance?
03/23/11
Recently a computer built by IBM beat two human contestants on the game show Jeopardy! The computer, named Watson, is now being tested to see if it can provide answers to medical questions as well. Modern medicine focuses on an ‘evidence’ based approach where the provider rules out illnesses and disease through a process known as a differential diagnosis. Sometimes, providers try to jump ahead in the absence of evidence. A provider might not run all the available tests or labs and then miss a crucial diagnosis which puts the patient’s life at risk. For example, an emergency room might assume that a patient is merely experiencing heart burn, when in fact they are suffering from early signs of a heart attack. Or, a doctor might jump to the conclusion that a patient is simply light headed and dizzy due to dehydration and miss the brain tumor because a test or scan wasn’t performed.
Watson, of course, wouldn’t make assumptions. Watson, however, might miss subtle clues provided by the patient or by a physical exam, clues which only another human might pick up on. The real question, then, is whether Watson would carry malpractice insurance to cover losses sustained when it makes a mistake resulting in a wrong or bad diagnosis.
Watson, of course, wouldn’t make assumptions. Watson, however, might miss subtle clues provided by the patient or by a physical exam, clues which only another human might pick up on. The real question, then, is whether Watson would carry malpractice insurance to cover losses sustained when it makes a mistake resulting in a wrong or bad diagnosis.
Your Health Advocate
12/31/10
Most medical malpractice occurs when the professionals drop the ball. Wrongful death or severe injuries occur because of miscommunication, misunderstanding and just plain mistakes by the healthcare providers. One step that can help reduce the likelihood you might fall victim to an error is to try and make sure you have an advocate at your side during treatment, especially while in the hospital. A spouse, close friend or relative can advocate for you while you are too medicated to do so for yourself. Ask someone to question the healthcare providers prior to any treatment. In particular, either you or your advocate should seek information such as:
If you nevertheless become an unfortunate victim of malpractice or medical mistake, don’t make the mistake of thinking that it will get better with time. There are strict time limits for wrongful death and medical malpractice claims. Get in touch with a lawyer immediately, because now you need a different kind of advocate.
- Why is the treatment/procedure/medication needed?
- What else could be causing the problem/disease/reaction?
- What other treatment is available?
- Tell providers to wash/sanitize their hands when they enter the room to prevent spread of infection. They most likely just came from seeing another patient who may have been carrying a disease that you don’t need or want.
- Before you leave, make sure you have very clear, specific written instructions in hand as well as what complications should trigger your return to the clinic/hospital and a phone number to call for any questions that might arise.
If you nevertheless become an unfortunate victim of malpractice or medical mistake, don’t make the mistake of thinking that it will get better with time. There are strict time limits for wrongful death and medical malpractice claims. Get in touch with a lawyer immediately, because now you need a different kind of advocate.