Surgical Errors: Dangers, Prevention and Recourse

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The recent death of Rep. John Murtha (D.-Pa.) following complications from a gallbladder surgery has generated public concern over preventable medical errors. According to a 2000 publication by the Institute of Medicine (IOM), extrapolating the data from two large studies (one in New York and the other in Colorado and Utah) to hospital admissions throughout the United States in 1997 indicates that at least 44,000 and perhaps as many as 98,000 Americans die each year as a result of medical errors. That is more deaths per year than result from car accidents, breast cancer or AIDS.

Risks

Surgical and medical errors vary. Defective or unsanitary equipment can add to these risks. Included in the risks patients face are:

  • Anesthesia error: Anesthesia errors such as dosage errors or failure to monitor the patient properly may result in nerve damage, brain damage or even death
  • Medication errors: The 2000 IOM publication also reports that medication errors alone, whether in or out of the hospital, account for an estimated 7,000 deaths annually
  • Surgical fires: The elements of fire – fuel, oxygen and heat – are present during surgery and, according to the Joint Commission on Accreditation of Healthcare Organizations, there are approximately 100 surgical fires each year
  • Wrong site surgery: Wrong site surgery occurs when the surgeon conducts surgery on the wrong body part, for example when an operation is performed on the patient’s right arm but should have been performed on the left arm
  • Unnecessary surgery: Sometimes the operation itself may not have been warranted or the patient was not advised of less invasive alternatives
  • Injury during surgery
  • Surgical instruments or sponges left inside the patient

Education and Prevention

The Agency for Healthcare Research and Quality reports that the single most important way to help prevent errors is for patients to get involved in their healthcare and be active members of their health care team. This involves a wholly proactive approach to everything from medicine to hospital selection, when possible.

Medicines

Patients should be educated on medications, herbs and supplements they take and should always advise their doctors of everything they are taking, whether prescription or over-the-counter. Patients should also advise their doctors of any known allergies or adverse reactions to drugs.

When given a prescription, it should be legible and the patient should be told for what the medicine is being prescribed, how long to take the medicine, any probable side effects and interaction with or effect on other drugs, supplements, food, drinks or activities. When filling a prescription, patients should affirm that the medicine is what the doctor prescribed, verify that they understand the directions and how to dose properly and request written information about potential side effects.

Hospitals

If possible, patients should choose a hospital that has performed the operation or procedure many times. The patient may also wish to inquire whether the hospital has adopted a surgical checklist as well as asking any health care workers who have direct contact whether they have washed their hands.

Each patient should be confident that he or she and the surgeon all agree and are clear on exactly what will be done and where. Upon discharge, the patient should request a treatment plan to follow at home.

As a practical matter, Dr. Savard, in a recent ABC News story, advised not to schedule the hospital stay in June, July or August, as those are the months new residents begin working and senior residents get promoted. She also cautioned to avoid surgery on Thursdays and, especially, Fridays.

Remedies

Even savvy patients may be susceptible to surgical error and injury. Depending on the circumstances of the individual case, it may be possible to recover damages to compensate the victim for:

  • Past or prospective medical bills and hospitalization
  • Prescription costs
  • Past or prospective lost wages
  • Pain and suffering
  • Punitive damages

The patient may have a claim against the surgeon, nurse, anesthesiologist or nurse anesthetist or the hospital. If a patient has been injured or suffered an adverse reaction following surgery, it is important to contact an attorney for information on how to gather evidence and whether to proceed with a claim.
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New Bodily Injury Coverage Minimum Regulations in Maryland

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The Maryland state legislature has approved a law requiring motorists in the state to carry higher minimum protections for accident victims starting in 2011. Gov. Martin O’Malley is expected to sign the bill May 20, along with a draft of other measures approved during the legislative session that just ended.

The state currently mandates a minimum of $20,000 in liability coverage per person, and $40,000 per accident involving more than one victim. Under the new law, the minimums would increase to $30,000 per person and $60,000 per accident, meaning that a family injured in an accident could get $60,000 in hospital bills and other expenses covered by insurance, assuming the other driver has auto insurance.

The previous limits had not changed for 38 years. Supporters of the law said the state requirements were not keeping up with inflation, which left victims vulnerable to out-of-pocket expenses. Opponents argue the new law could increase the number of uninsured motorists and leave victims with no coverage.

The new law makes Maryland’s required minimums higher than most states. About half of U.S. states require $25,000 in coverage per person, and $50,000 per accident. The new minimums match Minnesota and North Carolina, but are below the levels in Alaska and Maine, which each require minimums of $50,000 and $100,000.

Most drivers – about 2 million policy holders – already have more than the minimum coverage. Up to 200,000 other motorists currently carry only the minimum, and could see increases of several hundred dollars under the new law.

Who supports the measure?

Trial lawyers pushed the measure, arguing that new limits would help guarantee that victims could collect enough insurance money to cover their injuries. They also said the current $20,000 minimum, which was approved in 1972, is equivalent to more than $100,000 today.

The Maryland Hospital Association also backs the law. Hospitals hope to recover some of the $12 million in uncompensated annual costs for care.

Who opposes the measure?

On the other hand, insurance companies and other groups are concerned that the increased premiums will cause many drivers to completely drop their legally required insurance coverage. Many of the 200,000 motorists paying the minimum may not be able to afford higher premiums. This could leave accident victims with no insurance payments for accidents involving uninsured motorists.

The new limits also may be unnecessary. The 2009 average liability claim was just under $11,000, and about 1 percent of injury claims exceed the current minimum.

Many are particularly concerned about the new requirements during tough economic times. A growing number of drivers are already dropping their insurance coverage to save money. The Insurance Research Council estimates the national uninsured driver rate will exceed 16 percent in 2010, up about 3 percent from 2007.

To learn more about Maryland’s higher minimum injury coverage regulations and how they may affect you and your future claims, speak to an experienced personal injury attorney. A lawyer can review your case, explain your legal rights and help you determine the best course of action based on your circumstances.
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Cell phone Ban for Drivers Passed in Maryland

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A secondary law banning hand-held cell phone use while driving passed the Maryland legislature in its waning hours and is slated to take effect October 1, 2010. Because the new ban on hand-held cell phones in Maryland is a secondary law, police officers can enforce it only if the driver is detained for another offense.

Secondary laws are largely ineffective, as the New York experience with secondary anti-texting laws has demonstrated. Among five New York counties surveyed, only one has issued a single ticket for texting in the five months the law has been on the books.

When it comes to public safety, hand-held cell phone bans are misleading and may give the false impression that driving with hands-free cell phones is safe. If Maryland’s hand-held cell phone ban encourages the use of hands-free cell phones, it may be counter-productive. If the law merely encourages drivers using hand-held cells to switch to hands-free, its effect on public safety will likely be neutral.

Nationally, drivers using cell phones cause 2,600 deaths and 333,000 injuries annually. In 2006, Maryland experienced 51 distracted driving fatalities and 14,177 injuries.

For the victims of distracted driving, Maryland’s new hand-held cell phone ban is unlikely to offer any relief. Not only is the law a secondary law, it contains exceptions allowing drivers to turn hand-held cell phones on and off while driving. The first-offense fine of $40 can be waived if the driver shows proof of purchase of a hands-free set. The second-offense fine is $100. Unlike certain other states, Maryland’s law does not contain enhanced penalties for cell phone users who cause a crash.

An injury victim pursuing a negligent driving claim against a distracted Maryland driver talking on a cell phone will likely have to prove his claim the old fashioned way, as the weakness of the law and its exceptions undercut any argument that the law is premised on hand-held cell phone use being uniformly dangerous.

The new Maryland hand-held cell phone ban does ban the use of cell phones by drivers of school vehicles.
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House Bill Would Give US Consumers Someone to Sue Abroad

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Many people recall the furor last year over Chinese drywall, which tended to emit sulfurous gasses and in turn caused corrosion and health problems. But what many people don’t know is the frustration U.S. consumers experienced when they attempted to bring the manufacturers of the drywall to justice, because the manufacturers were overseas companies that did not have U.S. offices.

That may change soon, thanks to the Foreign Manufacturers Legal Accountability Act, pending in the House of Representatives. In essence, the bill gives U.S. consumers someone to sue. It requires companies whose products are imported into the U.S. to have a designated agent for service of process – in other words, someone here in the U.S. that can be served with papers for a lawsuit.

Additionally, by designating an agent, these foreign companies consent to the jurisdiction of the courts of the state in which their agent is located. To enforce its provisions, the bill would prohibit anyone from importing goods from a foreign company that did not have a U.S. agent.

The bill would cover any products that would fall under the jurisdiction of three federal agencies: the Consumer Product Safety Commission (such as children’s toys), the Food and Drug Administration (such as prescription drugs and medical devices), and the Environmental Protection Agency (such as pesticides). In late June the bill was approved by the Subcommittee on Commerce, Trade and Consumer Protection, and has bipartisan support.

Supporters of the bill, which have included U.S. consumer groups like the publishers of Consumer Reports, say that the bill will help both U.S. manufacturers (by leveling the playing field) and U.S. importers (who were often the only party that could be sued if products were faulty, even though they may not have been directly responsible for the problem).

But legal experts point out that even if a foreign company may be successfully sued in a U.S. court, there’s no guarantee that the court’s judgment will be enforced in their home country. Also, some foreign companies may elect to avoid the requirements and simply not enter the U.S. market at all, potentially increasing consumer costs and limiting choice. Other countries may also pass similar laws, which would add greater complexity to the export efforts of U.S. manufacturers.
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Metro Transit System May Come Under Federal Jurisdiction Following Crash

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Officials at the Washington Metropolitan Area Transit Authority (commonly known as Metro) announced the purchase of 428 new train cars on July 27th-the same day that the National Transportation Safety Bureau released its findings regarding the crash on Metro’s Red Line on June 22 of 2009, in which nine people died.

The NTSB report characterized the accident as being preventable, blaming the failure of track circuit monitors, which should have detected that a parked train was already on the tracks. The agency highlighted a lack of safety oversight at Metro and made numerous recommendations for safety improvements.

Metro was quick to point out that among the NTSB’s recommendations is replacement of their aging “1000 series” cars, which the purchase of new cars will do.

But in announcing the recommendations, NTSB chair Deborah Hersman characterized Metro as “tone-deaf” and said that Metro has not implemented many previous NTSB recommendations. In fact, Metro didn’t follow its own safety precautions, such as a test for this very sort of track monitor developed following a 2005 near-crash.

NTSB Recommendations and Federal Enforcement

Much of the NTSB’s frustration may stem from the fact that their recommendations are just that – recommendations. As of today, there is no federal body that has the power to enforce regulations on local subway systems. The NTSB suggests that the Federal Transit Administration be given oversight authority for local rail systems such as Metro, and Transportation Secretary Ray LaHood agrees.

The Senate Banking Committee (which has authority over transit issues) recently introduced a bill giving the FTA authority to establish federal safety standards for transit systems, and to give the secretary of transportation enforcement authority.

Maryland’s senators have also been vocal in their desire to bring federal enforcement to transportation organizations like Metro. Maryland senators Barbara Mikulski and Benjamin Cardin appeared together for a commemoration of the one year anniversary of the crash last month, and Senator Mikulski introduced her own bill to bring Metro under federal enforcement last year, as well as appearing when the Obama administration announced a similar bill this spring.

Whether any of these bills which would bring Metro under federal enforcement will become law is unknown, but the attention paid to the NTSB’s recommendations – and Metro’s past failures to correct its safety procedures – gives the issue increased scrutiny and thus makes federal enforcement more likely.
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