Medical Malpractice - Perils of Anesthesia

Posted on January 12, 2009 by Paula Strand

Perils of Anesthesia.

Occasionally we read about medical errors and malpractice cases brought as a result of anesthesia errors. Despite the overall healthcare improvements and technical innovations, anesthesia errors still pervade our medical system.
Anesthesiology is a branch of medicine specializing in the use of drugs or other agents that cause insensibility to pain. While anesthetics are essential to conducting many medical procedures with little to no discomfort, they carry the risk of unwanted post-effects. Anesthesiology is also defined as a continuity of patient care involving preoperative evaluation, intraoperative and postoperative care. Most people think of anesthesia-related malpractice as it relates to surgery; however it can happen during pre-operative preparation, post-operatively in the recovery room, and in any procedure room in a medical facility or doctor’s office. Anesthesia mistakes can take place during childbirth and even before routine dental procedures. Anesthesia mistakes are not limited to anesthesiologists.

According to the American Society of Anesthesiologists , it is estimated that nearly 40 million anesthetics are administered each year in this country. Anesthesiologists provide or participate in more than 90 percent of these anesthetics. In the operating room, they are responsible for the medical management and anesthetic care of the patient throughout the duration of the surgery. The anesthesiologist must carefully match the anesthetic needs of each patient to that patient’s medical condition, responses to anesthesia and the requirements of the surgery. In many surgical settings, anesthesiologists work in the “anesthesia care team” mode, medically supervising the work of non-physician anesthetists such as nurse anesthetists and anesthesiologist assistants, who, although are not physicians, have been trained in the technical administration of anesthetics. Anesthesiologists have important functions outside of operating rooms, such as evaluating patients prior to surgery or conducting postoperative visits. However, the majority of their activities, which are performed inside the operating room, are seen by few people outside of the surgical and nursing team. Usually the patients are unable to remember the anesthesiologist’s involvement because much of the critical work may be done while the patient is anesthetized. The role of the anesthesiologist in the operating room is to: 1) provide continual medical assessment of the patient; 2) monitor and control the patient’s vital life functions; and 3) control the patient’s pain and level of consciousness to make conditions ideal for a safe and successful surgery.
 

Many healthcare professionals administer sedatives and anesthetics to their patients prior to procedures and surgeries. Administration of anesthesia requires specialized training and certification. The seriousness and number of complications increases significantly outside of the setting of the anesthesiologist in the operating room. Severe complications and death can occur in dental offices and cosmetic surgery clinics during procedures where patients are under general anesthesia and trained anesthesia staff are not present. Potential anesthesia medical malpractice defendants include anesthesiologists, nurses, nurse anesthetists, surgeons, dentists, and doctors.

Medical malpractice claims are common in anesthesiology, because problems are common. Anesthesia malpractice is usually devastating, often resulting in permanent injury, brain damage, and even death. As a result, medical indemnity premiums for anesthesiologists are usually higher than other specialties. Anesthesia medical malpractice accounts for a large number of medical malpractice cases across the country. A small error in dosage can have grave and potentially life-threatening consequences. According to the American Society of Anesthesiologists, as of 2007 there were 248 closed malpractice claims for events that occurred in the year 2000 or later. Among these 248 claims, malpractice insurance payment was made on behalf of the anesthesiologist in 108 claims or 44% of the claims, no payment was made in 134 claims or 54%. Payments ranged from $1,250 to $2 million with a median payment of $115,000. 96% of all payments were $1 million or less.

Unfortunately, proving negligence by an anesthesiologist or anesthesia staff is difficult because the plaintiff, at the time of the malpractice, was unconscious or sedated, and medical records are the only source of information in the case. Hospitals and out-patient clinics should always keep detailed anesthesia notes in a patient’s chart including a pre-anesthesia exam; informed consent form; operative record; transfer notes; physician notes and post-anesthesia record. Sometimes, after a tragic malpractice mistake, records get “lost” or altered. Only careful inspection of medical records can reveal post-mistake additions, omissions or alterations. John Sellinger, our medical malpractice lawyer who has been reading and interpreting medical records for thirty years, has gained immeasurable knowledge and skill when combing through medical records.  An altered or destroyed medical record offers the plaintiff’s side opportunities to prove malpractice or an attempt to hide the malpractice. Malpractice insurers and professional medical societies continuously warn medical practitioners to never alter medical records, but in the moments surrounding a potentially fatal mistake, professional and ethical advice can be forgotten.


 

To learn more about medical malpractice issues, please read medical malpractice.  TO learn mopre about our medical malpractice lawyer, John Sellinger, please read John Sellinger, or watch his medical malpractice video.
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Medical Malpractice Wrongful Death

Posted on August 29, 2008 by Paula Strand

Wrongful death in a medical malpractice.

Medical malpractice is a serious issue in our hospitals and is a leading cause of wrongful death. Over 225,000 people die from medical malpractice related injuries in a single year. A US Department of Justice report in 2007 noted that the number of payouts stemming from medical malpractice cases increased 40%. According to a new study by the Department of Health and Human Services (DHHS) Agency for Healthcare Research and Quality (AHRQ) one of every ten patients nationwide who died within 90 days of surgery did so because of a preventable medical error. The study also found that those same errors cost nearly $1.5 billion annually. We are taught to trust doctors and follow their advice as it pertains to our health. After all, doctors go through an extensive course of training, pass a medical board exam and complete several years of residency, which thoroughly prepare them to treat and protect our health. Unfortunately, despite all of these safeguards, medical errors are all too common.

Medical error may turn a routine medical procedure into a tragedy. Generally, a medical error is not necessarily medical malpractice. A deviation from the standard of care is what makes a medical mistake a potential malpractice claim. This is known as medical negligence. Some medical errors include surgical malpractice, medication errors, bacterial infections, birth injuries, dental malpractice and diagnosis errors. Often, preventable medical mistakes result from staff failure to follow standard policies and procedures. Some suggest that medical errors occur due to lack of sleep. Others believe that the doctors service too many patients in too short a time. After being on duty for many hours, physicians, nurses and other medical workers may not communicate well due to fatigue, or time constraints with the numerous patients.

Many states have enacted “apology laws” for healthcare workers. These laws provide for open expression of regret, sympathy or compassion by physicians and other healthcare providers without fear of such apology being used against them in a malpractice suit. These laws are purportedly designed to diminish the number of lawsuits against medical workers by providing families and friends of victims with a sense that the medical provider regrets the unfortunate or tragic outcome of the medical error. The apology laws are designed to encourage healthcare providers to speak candidly with the victims. These laws conflict with the advice given to medical providers by their malpractice insurance carriers who advise doctors not to admit any errors unless they are protected by legislation. Moreover, many hospitals waive costs of medical bills when involving medical errors with the patient.
 

When a victim dies as a result of a medical malpractice, the decedent’s family may bring two distinct claims. One is an action brought on behalf of the personal representative of the deceased, claiming recovery for the injuries suffered by the victim. (“survival action”). This action is for compensation to the victim’s estate for pain and suffering and other damages, as well as for actual expenses incurred by the victim that were suffered up to the moment of death. The other action is a “wrongful death action” brought by the relatives of the victim who are seeking compensation for their relative’s death. In survival action, damages are measured in terms of harm to the victim. The personal representative serves as the victim’s agent. In a wrongful death action, damages are measured in terms of harm to loved ones as a result of the loss of the victim. The surviving relatives do not serve as agents for the decedent nor act on their own behalf for their own loss. While Maryland and the District of Columbia allow the victims to bring both actions, Virginia law allows to bring only one of the actions, leaving the victim’s family or the decedent’s estate without any compensation (Virginia only allows one recovery for a single injury).

The main difference between survival action and wrongful death action is that if death is instantaneous, there can be no cause of action except for medical bills and funeral expenses under the survival statute. This limitation creates a fundamental unfairness, as a parent who does not get to see their children grow up has suffered a great loss, just as children who grow up without their parents have suffered. The survival action law gives that claim to the children and not to the parents under the survival statute.

One question families who have lost a loved one by medical malpractice ask is what is the maximum recovery they can receive for their loss? Assuming no problems with insurance or collectability, Metro Verdicts Monthly reports that the median settlement and verdict in Maryland for wrongful death medical malpractice cases over the last 20 years is $900,000. This is far more than the verdicts in Virginia and the District of Columbia, which range between $750,000 and $665,000. However in 2005, Maryland legislature reversed that trend by enacting a cap on non-economic damages in wrongful death actions which is currently $650,000, regardless of how much the jury award is. Virginia and the District of Columbia do not place the same limitations on the verdicts. Maryland provides for $650,000 as the maximum recovery in a death case when there is only one wrongful death beneficiary. The wrongful death cap with two or more beneficiaries in Maryland today is $812,500. Moreover, the cap combines wrongful death and survival actions, even though in Maryland one can bring both survival and wrongful death actions. The non-economic recovery is capped at $650,000 or $812,500 accordingly. The new cap on non-economic damages in wrongful death malpractice cases has had an impact on the amount of verdict awards in Maryland.

There are no caps on economic damages. Economic damages include not only medical expenses associated with the victim’s treatment, but also lost wages from the time of the accident/malpractice and death, as well as future lost wages. A future lost earnings award is allowed for earnings “reasonably certain” to result from the injury and are awarded by the jury (or judge) in a lump sum. But, obviously, the computation of future lost earnings is not exact and to some degree requires speculation about the decedent's life expectancy and expected work experience.
 

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Nearly $1M awarded wrongful death

Posted on December 19, 2007 by Paula Strand

Nearly $1M awarded in wrongful death
Originally published April 04, 2006
By Kate Leckie
News-Post Staff

FREDERICK -- A Frederick County Circuit Court jury has awarded $935,000 to the family of a Thurmont man who died about two weeks after having his gallbladder removed at Frederick Memorial Hospital on Aug. 7, 2002.

Deliberating about eight hours following a nine-day medical malpractice trial, the jury of four men and two women found that nurse Abu Kamara and Dr. Steven Nagel violated adequate standards of care for Lester Moser. They reached their verdict about 10 p.m. Friday.

The jury only placed damages against Mr. Kamara and his employer, OMV Medical Inc., ruling that it was the nurse's failure to keep Dr. Nagel informed of the patient's worsening condition that led to Mr. Moser's fatal injuries, according to documents filed at the Frederick County Courthouse.

Mr. Kamara failed to contact Dr. Nagel about three key factors: that Mr. Moser was complaining of severe pain Aug. 9, 2002; that a tube needed for suctioning was not inserted in a timely fashion; and that the patient had vomited.

Transferred to Johns Hopkins Hospital on Aug. 21, 2002, Mr. Moser died two days later of sepsis and organ failure, court documents state.

Mr. Moser, a lifelong Frederick County resident, was 79 when he died.

Virginia Moser filed the wrongful death suit Sept. 16, 2003, about a year after her husband's death from complications arising from the elective surgery.

Citing her husband's conscious pain and suffering, funeral and burial expenses, the suit sought more than $100,000 in damages for the death of her husband of 56 years and the father of her three grown children.

The jury awarded $55,000 for past expenses related to Mr. Moser's medical care; $500,000 in noneconomic damages to his estate; $250,000 in damages to his wife; and $130,000 total in damages to his children.

Contacted Monday by telephone, Ms. Moser had little to say about the trial that ended years of legal maneuvering. "It was hard," she said.

Son Wayne Moser said the family was satisfied with the verdict.

"We're not the type to sue, but we were upset with the way my father's care at the hospital was handled," Mr. Moser said. "You put your family member in the hospital, and something horrible like this happens.

"This has been a great loss for our family," he said.

John J. Sellinger, the lawyer representing the Mosers, said the family was gratified that the jury found in their favor.

"It's been difficult emotionally for them to relive such a painful event. I never met him, but Lester Moser sounds like he was a wonderful man," said Mr. Sellinger of the Silver Spring office of Greenburg & Bederman. "They're really good people."

Mr. Moser's obituary referred to an upbringing on the family's farm and time spent in the orchard.

He also worked as a school bus driver and rural letter carrier.

Mr. Kamara and OMV Medical Inc. of Takoma Park were represented by Stephen J. Cullen of Miles & Stockbridge in Towson. A phone call seeking comment Monday was not returned.

Before the case went to trial, Dr. Kevin Hurtt, who performed Mr. Moser's surgery, and Frederick Memorial Hospital were dropped as defendants.

Judge G. Edward Dwyer Jr. presided over the civil trial.

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