CNN recently ran a story on just how common medical mistakes, i.e. medical malpractice, actually occurs. Referencing a study by the Archives of Surgery, the article notes that in Colorado alone doctors operated on the wrong patient at least 25 times and on the wrong part of the body in another 107 cases. The study period occurred over a 6.5 year period. If our hospital and healthcare system get the wrong patient for surgery altogether, you can easily see how they might make other mistakes with catastrophic results and injury.

According to one physician interviewed by CNN:

Each hospital, whether they publicly admit it or not, and whether or not it's discoverable in a lawsuit, has an episode of wrong-site or wrong-patient surgery either every year or once every few years," says Makary, who wrote an editorial accompanying the study. "Almost every surgeon has seen one."

You can read the full article on CNN here. Our healthcare system, by and large, runs well for many people. However, for those who fall victim to a preventable medical error, the results can be disastrous for them or their families. Too often, tort reform focuses on limiting the ability to compensate those who get injured by medical malpractice without recognizing that this is why doctors and hospitals have insurance, to compensate the injured and their family. If tort reformers were serious about reducing costs, they would advocate healthcare reform to help prevent such mistakes in the first place, not try to through salt in the wounds of the victims by denying reasonable compensation.

It’s true: we live in a time of a medical malpractice crisis. Unfortunately, the spin on this by insurance companies is that “lawyers are to blame.”

But, according to the Society of Actuaries, the primary driving force in this cost is the fact that avoidable medical errors, a.k.a., medical mistakes or negligence, result in these costs. Further, most of the surveyed actuaries agreed that the solution is to prevent or reduce medical errors in the first place.

“Medical errors are a significant source of lost healthcare funds every year. For example, the study found that $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion was lost from increased death rates among individuals who experienced medical errors. According to a recent SOA survey, which identified ways to bend the national healthcare cost curve, 87 percent of actuaries believe that reducing medical errors is an effective way to control healthcare cost trends for the commercial population, and 88 percent believe this to be true for the Medicare population.”

Seems simple. If the negligence never occurs, there is no cost.

The Society of Actuaries also highlighted the five most common medical mistakes, or errors, that generated over 55% of the total costs. Pressure ulcers, postoperative infections, mechanical complications from devices, implants or grafts, postlaminectomy syndrome, and hemorrhages complicating a procedure round out the top five.

According to the U.S. Department of Health, Agency for Healthcare Research and Quality, “Medical errors are one of the Nation's leading causes of death and injury. A recent report by the Institute of Medicine estimates that as many as 44,000 to 98,000 people die in U.S. hospitals each year as the result of medical errors.” They offer 20 Tips to Help Prevent Medical Errors, many of which can be very useful in helping to head off a wayward medical provider about to commit malpractice. Medical errors are, by definition, an error and errors can and should be prevented. When a medical mistake, negligence or ‘error’ harms you, your family or friends, everyone pays the price. It costs a huge amount of money to correct errors through additional treatments. One case our firm worked on required over seven corrective surgeries following negligence by the doctor. Prevention is, of course, the best cure. Holding hospitals and healthcare providers accountable helps prevent ‘errors,’ and provides much needed relief to people harmed by such errors for lost wages, medical expenses, and home health accommodations in the most serious cases.

Where will the ‘tort reformers’ (a.k.a. insurance companies looking to boost their bottom line) go if they lose the loyalty of their main media outlet? FOX News ran a story today entitled “Tips to Protect Yourself From Hospital Negligence.” The article addresses recent stories regarding infectious diseases being transferred to patients because the hospital and/or health care provider reused syringes, bottles of medication or dirty dental instruments. As a result, patients were infected with diseases such as hepatitis B and C as well as HIV. The article does offer a few good tips for ‘protecting’ yourself from infection at the hands of a negligent provider:

• Demand that all health care personnel wash their hands in front of you before they render any physical service;
• Demand that all health care personnel wear NEW gloves before drawing any blood;
• Make sure your health care provider opens new needles from new packaging in your presence;
• If any injectable medication is to be administered, it must come from a new bottle;
• If you do not feel comfortable in your current setting, ask to speak to the infection control officer at your health facility. It is your right.

Still, one wonders, how can the patient be sure that medication comes from a ‘new bottle?’ The fact is that we must trust our health care professionals and, when the professional betrays that trust, hold them accountable. If the health care industry knows they’ll be held liable for negligence, then they’ll be certain to act in a way that doesn’t break such easy and common sense rules and needlessly exposes patients to danger. This is why ‘tort reform’ should never be embraced, it throws salt on the wound of the victim and eliminates the deterrent for the health care industry.

We often see nurses caught between hospital administration, doctor orders and patient care. Doctors usually say ‘my way or the highway.’ nurses who question the wisdom of treatment can find themselves shunned and scorned or, worse, find their jobs at risk. More alarming, nurses find themselves ‘understaffed’ and unable to provide care for the patients. In short, Hospitals choose to maximize profit by keeping the bare minimum of nurses on duty. This not only exposes patients to potential injury and death, it also puts a great deal of stress on the care giver, the nurse. Nurses at heart want to help people. When the hospital puts them in a position that they can’t do their jobs properly, and they know they can’t be so many different places at one time, this causes severe heartache for the nurse who knows that patients are being harmed.

Minnesota nurses stood up, fought back and went on strike. Interestingly, even though many nurses usually sit on the opposite of the table from our firm, their argument is the same as ours, that hospitals are putting profit over patient safety. Tell the hospital to get off their wallet and give you the care you deserve.

The Utah Supreme Court today formally recognized a cause of action for ‘negligent credentialing.’ This claim is based on the hospital’s failure to properly screen or review a surgeon’s competency, skills and abilities, or the hospital allowing a known incompetent surgeon to access their surgical facilities. Just as a trucking company must make sure that the driver holds the necessary skills to keep from endangering the driving public, so to must hospitals make sure that patients are not needlessly endangered by incompetent, unskilled or unprofessional surgeons. The worst case is when a surgeon has a drug or alcohol abuse problem, yet is allowed access to the surgical room. The hospital holds the keys to the surgery room. The hospital must make sure that those it allows in will not harm patients because they don’t have the skills, are operating outside their area of expertise, or are engaged in dangerous habits like drug abuse.

In Archuleta v. St. Mark’s Hospital, the hospital allowed a surgeon into the operating room who had previously been a defendant in many medical malpractice lawsuits. Even worse, St. Mark’s had previously been named as a co-defendant alongside the offending surgeon. As a result, a patient was exposed to the hand of an incompetent and unqualified surgeon who performed an open laparotomy to revise a gastric bypass. After that encounter, the patient suffered through over six corrective surgeries and more than three years with problems still arising to her stomach and bowels.

By making hospitals accountable for the people they let into their surgical facilities, the safety of patients will be improved.

The complete opinion can be read here.

It doesn’t matter how much political power you wield, you will not be immune to death or injury from medical malpractice. Reports are surfacing that Congressman Murtha, who died this week following laparoscopic gallbladder surgery, may have been the victim of preventable medical error.

“According to a source close to Mr. Murtha -- confirming a report in Politico -- doctors inadvertently cut Mr. Murtha's intestine during the laparoscopic surgery, causing an infection.” You can read the full story here.

A pierced bowel case can arise following surgery for gall bladder removal. However, the difficulty arises when the pierced bowel goes untreated, allowing fecal content to leak into the abdominal cavity. Such a situation can quickly develop into a full blown infection, sepsis and lead to a septic shock. We know, because we have represented the loved ones and survivors of such tragic and unnecessary medical malpractice. If you have recently undergone any kind of abdominal surgery, watch for these signs and symptoms which may indicate you have a pierced bowel or other adverse complications needing immediate medical attention.

• Tenderness in the abdomen/stomach
• Sharp abdominal/stomach pain
• Lack of bowel sounds/no bowel movements
• Fever
• Vomiting

If you recently underwent an abdominal, laparoscopic, laparotomy, endoscopy or colonoscopy procedure you may be at heightened risk for a perforated bowel or pierced intestine. If you develop symptoms such as above, get immediate medical attention. If you feel that you or a loved one has suffered because of negligent medical care, give us a call and we can discuss your case.

According to research, medical malpractice insurance companies just keep getting richer. Since the turn of the century, the money insurance companies took in increased by 120% while the amount they paid out dropped by 15%.


Even more surprising? States with a ‘cap’ or maximum amount recoverable for harm actually experienced an increase in the cost of premiums.


A copy of the complete report can be downloaded and read here.

So, while everyone claims that medical malpractice insurance is getting too expensive and medical malpractice lawsuits are the problem, the real problem appears to be aggressive lobbyists hired by insurance companies are seeking to further pad the coffers and profits of the insurance industry at the expensive of people. And yet, somehow, someway, the Utah legislature is considering LOWERING the damages cap in Utah. Of course, maybe they should look first to who they are serving.... The Utah Medical Insurance Association, one of the largest providers of malpractice insurance in Utah, carries nearly a quarter billion dollars in assets ($230,718,580 as of 2008). Greed, apparently, is good for the insurance companies.

At the federal level, debate rages over healthcare reform. At the local level, still waters run deep. The legislature created an ‘interim’ committee at the close of last session to study health care transparency and improvements. Despite meeting in secret and also hiding its list of improvements from legislative oversight committees, word is leaking out that the interim folks are bent on making it more difficult to bring suit if you are injured by medical malpractice. Instead of transparency and creating a healthcare system that actually works for patient’s rights, the interim committee is bent on preserving insurance profit.

So, in the upcoming local legislative session, expect to hear a lot about ‘tort reform,’ very little about transparency and patient’s rights.

In the meantime, you can take some steps: tell your legislator you want a Patient’s Bill of Rights; tell your legislator you want a public system where you can go to find out background information on your doctors, healthcare providers, nurses and hospitals... after all, you can already look up your local restaurant to find out how many times the health department has cited them for violations, shouldn’t you have access to the same information for those who hold your lives in your hands? Which is more important, finding out if Taco Bell left chicken out on the counter, or knowing that surgeon who is about to cut you has been sued for malpractice more than once?

If you have signed an arbitration agreement with your medical care providers, you might want to consider revoking that agreement. First, you can refuse to sign an arbitration agreement and also revoke any signed agreement and Utah law prevents the health care provider from withholding services. Remember, the healthcare providers exist to serve you, not the other way around. Signing an arbitration agreement takes away your right to go to court, to seek a jury of your peers. Also, signing an arbitration agreement substitutes our free and open court system for a pay-to-play system where you can wind up paying thousands of dollars to get your claim heard. If you become a victim of medical malpractice, such as a misdiagnosed cancer, a surgeon who cuts the wrong organ or a mother who suffers eclampsia before birth or post partum bleeding, you would then need to pay thousands and thousands of dollars just to get your case heard. Why substitute this private and secret system for the public courts, courts which allow the public to know what doctors are bad, rather than keep it a secret? Why substitute this private pay-to-play arbitration scheme for the public system paid for by your hard earned tax dollars? The reason: Insurance companies know that individuals cannot afford to foot the bill for private arbitration and won’t pursue their rights when they become victimized by incompetent and negligent health care providers.

Revoke that arbitration agreement and do it today. Send this form letter to your provider, and keep a copy for yourself and your file.
Form Letter Revoke Arbitration

The medical malpractice insurance industry again seeks to shield the physician who negligently ignores safety in the emergency room (3 out of the last 4 years they tried and failed to push a similar bill). However, this time around SB0079 attacks patients and doctors alike. First, SB0079 raises the burden of proof for patients injured by negligent, unskilled or poorly trained emergency physicians by requiring a 'clear and convincing' standard. Second, SB0079 actually attacks physicians who dare to offer opinions critical of their peers. Physicians who testify against other physicians can be subjected to discipline for offering their honest opinion and criticism.

SB0079 shields the unskilled, poorly trained or plain negligent emergency room physician with a blanket immunity, allowing such physicians to remain unaccountable and in practice for all but the most horrific deaths or injuries in emergency rooms.

Raising the standard of proof for injuries from "preponderance of the evidence" to "clear and convincing" evidence is a solution looking for a problem. Already, Utah law takes into account the heated circumstances in an emergency room by requiring that physicians exercise reasonable care under those circumstances. Moreover, there have only been a few emergency room cases filed in the last few years. It makes no sense to shield these minority actors from legitimate claims by intimidating physicians who dare to offer critical testimony through potential disciplinary action.

If you find this intimidation tactic legislation offensive, contact your state legislator and voice your opinion. You can find your state representative by clicking here for help finding your district and representative.

Under Utah law, a victim of medical malpractice must use an expert witness to establish the ‘standard of care’ and that the health care provider failed to meet that standard. The rule makes good sense, and prevents frivolous lawsuits, but can also operate to prevent some meritorious claims as well.

Expert Testimony Required.
Expert witnesses, i.e. a physician or other healthcare provider working in the same or similar field as the defendant, testify to establish the rules by which healthcare providers must operate. Just as drivers must follow the rules (e.g., don’t run stop signs, obey the speed limit) there are highly specialized rules in medicine. These rules form the standard of care. If a defendant healthcare provider broke a rule, then they ‘breached’ the standard of care. If that breach caused harm to the patient, then there is a case for medical malpractice. A very basic example would be that, when a patient presents with what appears to be a broken arm, physicians must get an x-ray.

Why Experts Are Required.
Typically, jurors, attorneys and judges do not have the medical expertise to determine what the standard of care is, whether it was breached and whether or not the breach caused harm. By requiring expert testimony to establish the rules for healthcare providers, frivolous lawsuits are prevented.

Why It Can Become a Problem.
Experts do not testify for free. Worse still, no healthcare provider in the State of Utah will offer testimony against another healthcare provider, a ‘white wall’ of silence and an unwritten code to hide the ugly truth of medical malpractice... Mistakes happen, people are catastrophically injured and killed, but the malpractice insurance (largely owned by the healthcare providers in Utah) wants to walk away for free.

So, the only option is to retain experts from out of state, who do not operate under the same fund of malpractice insurance and who do not need to worry about offending their local peers. Of course, this makes it even more expensive for an individual who is already injured and possibly out of work because of the injury.

Perhaps most troubling, because expert witnesses cost so much, only the most catastrophic cases can be brought. For example, if Joe is hurt by medical malpractice, but only suffers $15,000 in medical expenses and lost wages, it will be a very difficult economic decision to bring the malpractice claim because expert witness fees will eat up most of what he could recover. The cliche` goes: No sense throwing good money after bad.

Practically every hospital, doctor, clinic and healthcare provider in Utah asks patients to sign an ‘Arbitration Agreement.’ Often, these boilerplate forms get buried in with other red-tape paperwork. Do not ignore them and, more importantly, do not sign an arbitration agreement.

Sign Now, and Pay Later.
Your biggest fear during healthcare is not litigation, but “Am I going to be o.k.?” Naturally, we all believe we will survive and that our doctor will do a good job. The majority of the time, this is true and our healthcare providers do amazing work.

But, what if the doctor makes a mistake? They are, after all, human. Should you be giving up a right to court access for harm and injury because of medical malpractice? Should you give up that right even before the harm ever occurs? Arbitration is expensive, very expensive. Your tax dollars already provide a free and open court system. Arbitration requires that you pay the costs of not one, but two judges. These judges charge upwards of $300 per hour. Of course, if you suffer medical malpractice, you might be injured so badly that you lose your job. If you cannot pay for an arbitrator ($300/hr!) you cannot seek compensation from the healthcare provider who made an error. Can you see why the healthcare providers want you to sign these up front? It practically guarantees you lose your right to seek compensation by making it too expensive.

Of course, you can always choose arbitration at a later date if you feel it is the best way to resolve a claim for malpractice.

Your Right, Your Say.
You get to say whether or not you will agree to arbitration for medical malpractice, instead of bringing a lawsuit in our open courts. The purpose of providing an open court for people hurt by medical mistakes is to eliminate the possibility that injured people and/or their families would seek ‘rough justice’ against the healthcare provider on their own. Our tort system also guarantees that the offending healthcare provider gets known in a public forum and serves as a warning to other patients. These rights to go to a public court are yours and you get to say what happens to them. You do not need to sign an arbitration agreement under Utah law before receiving healthcare! If presented with an arbitration agreement, politely agree to take it with you and that you will read it and consider it. If you have already signed an arbitration agreement, you only have 10 days in which to revoke that agreement. Do so immediately by sending a written letter to your healthcare provider and keep a copy for yourself. Don’t let the healthcare industry take away your right to a free, public and open court system and replace it with a private, pay-to-play method which might cost so much, you cannot even use it when needed most.

You would never hand off the keys to your car to a drunk or incompetent driver, would you? In fact, you probably would be disgusted if you saw someone hand off the keys to their car to a drunk or incompetent driver in the hope of financial gain. For example, if Big Rig Trucking gave the keys to a semi-truck to an incompetent driver, and that driver tore through a neighborhood and killed or permanently injured a child, you’d blame Big Rig Trucking too, wouldn’t you?

The same should go for hospitals who hire, retain or otherwise allow an incompetent surgeon access to the operating room. As patients, we all believe that if a physician has access to a hospital’s highly specialized and tightly controlled surgical facilities that physician holds the necessary skill, training and competence to conduct surgery... to take our very lives into his or her hands. Hospitals act as the gatekeeper to the surgery room. Hospitals must make sure that the individual they allow into their surgery room has the necessary skill and training. If they know or should know that a surgeon lacks competence, and a patient dies or is seriously injured, they will be held accountable for enabling that surgeon to commit medical malpractice. After all, no one would show up if a surgeon told them he’d be doing the operation in his garage, at 8:30 a.m. on Monday morning.

I spoke at the Utah Association for Justice’s Annual Seminar yesterday regarding the case of Bybee v. Abdulla. In Bybee, the Utah Supreme Court sided with the plaintiff, refusing to compel her to participate in an arbitration. The Plaintiff’s husband died as a result of alleged medical malpractice. The physician held an arbitration agreement with the patient’s signature, but the signature of the spouse and heirs. Under the Utah Constitution, claims for wrongful death receive special protection, making it effectively impossible for the patient to bind his or her heirs to participate in arbitration. But, the, the Bybee court went even further, holding that any limitations on wrongful death claims would likely violate the special constitutional protections. This means that, in the medical malpractice context, there is likely no longer a damages cap for the loss of love, society and companionship when the negligence of healthcare providers kills the spouse, father, mother or child.

Dr. Zee misread and failed to communicate a rising PSA (prostate specific antigen) tests in Paul. Dr. Zee’s patient came in every year for his annual check-up and PSA test. Every year Dr. Zee’s patient, Paul, did exactly what he was supposed to do. Sadly, recent and rapid rise in PSA over a two year period called for serious intervention to diagnose a cancer present in Paul’s prostate. Dr. Zee completely failed to communicate and identify the rising PSA. By the time it was caught, a radical prostectomy was the result. More alarming, the cancer had spread beyond the prostate. Paul now had a likely life expectancy of 6.5 years.

We represented Paul. And, despite doing everything right, Paul gets the short end of the stick not just once, but twice. First, Paul gets betrayed by a healthcare system and physician. Paul held up his end of the bargain. He kept his annual appointments and believed the healthcare professionals when they told him he was fine. Second, even after hiring a lawyer, Paul gets betrayed by the legal system.

In Utah, the medical malpractice damages cap for Paul was set at $430,000 (annual adjusted setting) for his pain, suffering and loss. He can recover no more than that. Worse, his family, who will ultimately lose Paul to cancer, can recover no more than that either because the statute of limitations will have run by the time the cancer kills him. Don’t believe the hype and the public relations assault brought by insurance companies who shout “jackpot justice” or “runaway verdicts” are crippling this nation. Truly crippling this nation is the advancement of insurance company profit at the expense of people like Paul. So, betrayed once by the healthcare system and betrayed a second time by insurance company manipulation of our legislative and judicial process, Paul and his family must now face a grim future with limited financial resources.

NOTE: The names above have been changed to protect confidentiality.

A Utah jury recently held Lakeview Hospital accountable for the death of a child. The tragedy is that Lakeview Hospital, although advertising itself and profiting from a representation that they were a 24 hours a day, 7 days a week, 365 days a year emergency care facility, failed to have staff on hand, or available for on-call to deal with emergencies and, in fact, lacked any real policy to deal with emergencies such as this family faced. As a result, the unborn child suffered oxygen deprivation and, although born alive, was severely brain damaged and lived for only approximately one year. The jury refused to let Lakeview Hospital dodge justice and found that the damage done to the family, the pain, suffering and wrongful death of this young soul could only be corrected through a verdict over $800,000 in general damages. Congratulations to the jury who refused to buy into the Defense attorneys & Lakeview Hospital’s attempts to avoid justice and condolences to the family who lost so much because of Lakeview Hospital’s medical malpractice.

Sometimes the work of a personal injury attorney feels like toiling away without any reward. Then, on occasion, being a lawyer has its good days too. I (Pete Summerill here) am lucky enough to have prevailed in the cases of Dexter v. Bosko (right of inmate to bring civil rights action under Utah Constitution) and Bybee v. Abdulla (preventing a doctor from forcing wrongful death heirs into private pay-to-play arbitration for claim of medical malpractice). Now, those two cases are getting some recognition as well: Bybee v. Abdulla was just cited in the American Association for Justice’s monthly magazine Trial and Dexter v. Bosko will be featured locally in an article appearing in the Utah Association for Justice’s publication Utah Trial Journal. I hope that these decisions will go a long way toward preserving the rights of wrongful death heirs and the civil rights of prisoners well into the future.

Yet again, another study indicates that the whole 'medical malpractice crisis' is an overblown attempt by the insurance industry to support a crumbling argument for tort reform. Frequently we are told that physicians are fleeing the practice of medicine because trial lawyers have caused malpractice insurance premiums to skyrocket. Massachusetts has been described by the AMA as such crisis state, with settlement payments for victims of physician negligence the fourth highest in the United States.... Yet, surprise, "[m]ost physicians paid lower inflation-adjusted premiums in 2005 than in 1990." The reality, as always, is that the insurance companies pump up the malpractice crisis in order to pump up their own profits.
Study by Health Affairs here.

"Hospitals are terrible places for sick people." Reaffirming the idea that, if you've got humans involved, you will have human error, a recent Forbes article discusses the seven scariest hospital risks. The article does an excellent job of detailing the inherent problems in our hospital industry, and offers helpful advice on how to avoid becoming the victim of medical mistakes which include surgeon errors, infection, and incorrect medications. The article observes that: "between 40,000 and 100,000 people die every year because of doctors' mistakes, including surgical mishaps and drug mix-ups. One big problem: Hospital patients may get the wrong drug one time out of five, according to a study by Auburn University. The death toll from mistakes is at least as bad as that from car accidents or breast cancer, and maybe as bad as that from strokes."

Medication Errors Injure 1.5 Million People and Cost Billions of Dollars Annually;
Report Offers Comprehensive Strategies for Reducing Drug-Related Mistakes Read More...