Prescription Medication Error Medical Malpractice

According to a recent Yale-New Haven Hospital study, 3 out of 4 patients leave the hospital with either the wrong prescriptions or a lack of understanding about their medications.  

The chief researcher, Dr. Leora Horwitz, who also practices at the hospital, said healthcare providers “do a relatively poor job of educating patients about their medications.”  

Medical malpractice mistakes involving medication errors injuring more than 1.3 million persons a year.  

The study looked at 377 Yale-New Haven Hospital patients, ages 64 and older, who had been admitted with heart failure, acute coronary syndrome or pneumonia, then discharged to home.  

Of that group, 307 patients - - 81% - - either experienced a provider error in their discharge medications or had no understanding of at least one intended medication change.  

“We’re talking about the vast majority of our patients going home at potential risk” of medication problems, Horwitz said. “That’s huge. Collectively, something is not right.”  

The Yale study relied on interviews with patients after discharge, who were asked about their medication regimen. The researchers also reviewed patients’ admission and discharge medication records to see if all changes were intentional, or if any appeared to be errors.

Other study findings include:

•24% of medication changes were due to provider error.

•The average patient had no understanding of 60% of all stopped, re-dosed and new medications.

•Errors and misunderstanding were more common for medications not related to patient’s primary diagnosis than for those related to main ailment being treated.

•The electronic medical records system used at Yale and other hospitals makes it hard to track and reconcile medication changes.

•Patient discharge lists don’t flag which prescriptions are new and which have been stopped.

•Patients at many hospitals get a quick drug rundown from a nurse before discharge, but not a thorough review that ensures they understand the medications. 

Dr. Horowitz recounted a horror story in which one of her patients switched to a new beta blocker for high blood pressure during an inpatient hospital stay.  She landed back in the hospital after discharge when she took both the new medication and her old beta blocker – a combination that lowered her heart rate and blood pressure to dangerous levels.  

Medical malpractice errors – including prescription mistakes – are responsible for up to 98,000 wrongful deaths in American hospitals each year.  

The full Yale-New Haven Hospital is at: http://www.nhregister.com/articles/2012/12/03/news/doc50bd213d5f662015750301.txt

Higher Gas Prices Result in Motorcycle Fatalities

While traffic fatalities have dropped to record lows, motorcycle deaths have risen reflecting both an increase in the number of riders and cycles' inherent vulnerability. 

A strong relationship exists between gasoline prices and motorcycle fatalities - - as gas prices rise, so do the number of fatalities - - and wearing helmets is still the best method of reducing motorcycle deaths.  

Dangers of Motorcycle Travel 

According to the National Safety Council ("NSC"), motorcycles are the highest-risk form of travel and do not follow normal highway fatalities trends because circumstances leading to motorcycle deaths differ from automobile crashes. 

In 1975, 44,525 people died in US highway accidents of which 3,189 were motorcyclists.

By 2012, total highway fatalities had dropped to 33,561, while motorcycle deaths rose to 4,957.

In Pennsylvania, between 2001 and 2013 motorcycle fatalities rose 43% while fatalities in other vehicles dropped 27%.

Although millions more cars and motorcycles are on the road now than in 1975, the fatality rate has dropped for both vehicles with a threefold nationwide drop in car fatalities compared with a 14% drop for motorcycles.

Unlike motorcycles, cars have become safer by seat belts, air bags, antilock brakes and electronic stability control.  Conversely, according to the Governors Highway Safety Association ("GHSA"), little can be done to improve motorcycle safety other than helmet wearing which, unfortunately, has diminished over the past 30 years. 

In 1975, 47 states required all motorcyclists to wear helmets but that number has dropped to 19.

New Jersey requires helmets, but in 2003 Pennsylvania repealed its mandatory helmet law requiring helmets only for those under 21 or licensed for less than 2years (unless they have completed an approved safety course).

The National Highway Traffic Safety Administration ("NHTSA") estimated that in 2011 helmets saved 1,617 motorcyclists' lives and would have saved 703 additional lives if all motorcyclists wore helmets.

Further, according to Pennsylvania's Motorcycle Dealers Association, motorcyclists are much less visible to motorists distracted driving by talking on cellphones or texting which likely has contributed to accidents.

Gasoline Price and Motorcycle Fatality Correlation

An NSC analysis charting the trend since 1976 shows a strong correlation between gasoline prices and motorcycle fatalities. 

Specifically, because higher gas prices encourage using fuel-efficient motorcycles instead of cars leading to more - - and more inexperienced - - motorcyclists, as gas prices rise, so do the number of motorcycle deaths.

To reduce motorcycle fatalities, the GHSA recommends:

°Increasing helmet use.  In 2012, the U.S. Government Accountability Office concluded  that laws requiring all motorcyclists to wear helmets are the only strategy proven to be effective in reducing fatalities.

°Reducing drunken riding.  In 2010, 29% of fatally injured riders had a blood alcohol concentration at or above 0.08 % legal limit, the highest among all motorists.

°Reducing speed. 35% of motorcycle riders involved in fatal crashes were speeding and almost half of these crashes did not involve any other vehicle.

°Improving training.  While all states offer training, some courses may not be provided at convenient times and locations.

°Encouraging drivers to share the road.  According to NHTSA, when motorcycles crash with other vehicles, the other vehicle usually violated motorcyclist's right of way.

Injury Claims Against The Government

Ever get clobbered by the Government, literally?

Victims of accidents due to federal and state government employees' negligence - - and aviation, maritime, and negligent healthcare claimants at government owned facilities and military hospitals - - bring personal injury actions against the state or federal government to pay damages for losses and suffering.

What Are Governmental Claims

Like any other institution, the federal government and its employees can harm people through negligence.  A Veterans Administration doctor may cause a wrongful death through negligence and medical malpractice.  A law enforcement officer may commit a heinous act of brutality resulting in serious injuries.  A contractor working on a government project may cause a construction accident.

But suing the government to pay for losses and suffering caused by its employees' negligence and wrongdoing is different from any other personal injury action and requires getting around sovereign immunity, a legal doctrine immunizing the state from prosecution for a legal wrongdoing.

Federal Tort Claims Act

The Federal Tort Claims Act ("FTCA") is a statute enacted by the United States Congress in 1946 permitting private parties to sue the United States in a federal court for torts committed by persons acting on the United States' behalf.

The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment.   Under the FTCA, the government can only be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."  Thus, the FTCA does not apply to conduct that is "uniquely governmental" and incapable of performance by a private individual.

The FTCA further provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.  However, the FTCA provides an exception that the government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.

FTCA Exposure Exceptions

The FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances.

These exceptions include the "discretionary function exception" barring a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."  28 U.S.C. §2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two‑part test.  First, determine whether the conduct involved "an element of judgment or choice" which is not satisfied if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow."

If an element of judgment is established, the second inquiry is "whether that judgment is of the kind that the discretionary function exception was designed to shield" in that it involves considerations of "social, economic, and political policy."

Mechanics of Bringing a Government Claim

The FTCA specifies that government's liability is to be determined "in accordance with the law of the place where the [allegedly tortious] act or omission occurred."

Thus, in an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law.  

A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law

Unsafe Drug Alert: Testosterone Replacement Products

On January 31, 2014, the Food & Drug Administration ("FDA") launched an investigation into the risks of testosterone replacement therapy through the use of products including AndroGel®, AndroDerm®, Axiron®, and Testim®.  

Alarming new research suggests that millions of men may be at risk for a heart attack, stroke or premature death by taking testosterone therapy they don’t actually need and “Low T” testosterone replacement therapy lawsuits have already been filed in Federal District Court.  

Booming "Testoterone Replacement Therapy" Market 

In the past several years, testosterone replacement therapies manufacturers have aggressively marketed their product for treatment of common and natural effects of aging in men - - like normal decline in sexual drive, energy and athleticism - -  by describing these effects as a new medical condition called “Low T.”  

According to the industry, such symptoms call for treatment with testosterone replacement therapy and a prescription for one of their testosterone supplement products. 

While testosterone has been in limited clinical use since 1937 and approved by the FDA since 1953, testosterone can now be administered by patients at home, and the drug comes in at least five forms including patches, gels and injections.  

According to the FDA, prescription testosterone is only indicated for men with demonstrated low testosterone levels and an associated medical condition known as “hypogonadism.”  In recent years, "testosterone replacement treatments" use has increased radically, largely due to increased manufacturers advertising on websites www.isitlowt.com and www.low-testosterone-option.com.  

Since 2001, the number of testosterone prescriptions given to American men has tripled and in 2012 sales were estimated at $2 billion with three million prescriptions being written for the market leader AndroGel® alone.  

Testoterone Replacement Therapy Litigation 

Alarming new research suggests that millions of men may be at risk for a heart attack, stroke or premature death by taking testosterone therapy they don’t actually need.

 On January 29, 2014, the respected medical journal PLoS ONE found that prescription testosterone can double the rate of heart attacks in men 65 and older and triple the risks in younger men with a history of heart disease.  Another study published by The Journal of the American Medical Association found that men age 60 and older using testosterone drugs had a 30 percent greater risk for stroke, heart attack, and death compared to those who didn’t use testosterone replacement drugs.  

Lawsuits related to the use of testosterone replacement therapy for so-called “Low T” which seek compensation for such injuries have already been filed in Federal District Court.

OSHA Launches Online Whistleblower Claim System

To protect employee "whistleblowers", on December 5, 2013, the Occupational Safety and Health Administration ("OSHA") launched an online whistleblower complaint system at http://www.whistleblowers.gov/.

"Whistleblowing activity" includes reporting a work-related injury, illness, or fatality, participating in safety and health activities, or reporting a statutory or regulatory violation.

Although known primarily as the federal agency responsible for regulating workplace health and safety under Occupational Safety and Health Act, OSHA's "Whistleblower Protection Program" enforces the whistleblower protection provisions of 22 different federal statutes including:
°Asbestos Hazard Emergency Response Act;
°Clean Air Act;
°Comprehensive Environmental Response, Compensation and Liability Act;
°Consumer Financial Protection Act;
°Consumer Product Safety Improvement Act;
°Energy Reorganization Act;
°Federal Railroad Safety Act;
°Federal Water Pollution Control Act;
°International Safe Container Act;
°National Transit Systems Security Act;
°Pipeline Safety Improvement Act;
°Safe Drinking Water Act;
°Sarbanes-Oxley Act;
°Seaman's Protection Act;
°Section 1558 of the Affordable Care Act;
°Solid Waste Disposal Act;
°Surface Transportation Assistance Act;
°FDA Food Safety Modernization Act; and
°Toxic Substances Control Act.

Mirroring the existing paper complaint form, OSHA's free online system provide workers with an accessible way to file whistleblower complaints without fear of retaliation. 

Workers can now file whistle blower complaints by calling an agency hotline or a regional office, submitting a written complaint, or using the online form. 

Given the ease with which employees now can file complaints, employers should anticipate a likely whistleblower claims increase by updating internal policies and educating managers on the whistleblower statutes.

"Bad Faith" Insurance Claims

Accidents aren't the only cause of personal injury harm

 

Injured plaintiffs are often victims of wrongful delaying, withholding, or denying of benefits by either their own or the injury-causing-party's insurance company known as "bad faith".

Bad faith law requires an insurer who has acted in bad faith to compensate the policyholder the original claim's amount, any other losses resulting from the denial of benefits, and, to deter future wrongful acts, punitive damages.

Types of "Bad Faith"

"First Party" bad faith regards insurance companies' obligation to their injured policyholders to settle claims in a reasonable amount of time and for a reasonable amount of money.

"Third Party" bad faith regards claims made against the injury-causing-party's policy.   For example, if you're injured in an accident where someone else is clearly at fault, their insurance company, the Third Party insurer, is responsible for compensating for your injuries and settling the claim in a reasonable amount of time and for a reasonable amount of money. 

Examples of bad faith include undue delay in handling claims, inadequate investigation, refusal to defend a lawsuit, threats against an insured, refusing to make a reasonable settlement offer, or making unreasonable interpretations of an insurance policy.

Bad Faith Law and Claims 

Because it is among the United States' most powerful and profitable industries, insurance companies wield significant influence over the federal government which has no bad faith law or requirements that insurers act in good faith and fairly with their insureds.  

Instead, the insurance industry is regulated by state created bad faith law which deems insurers as having a "fiduciary relationship" - - a special relationship of trust and of acting in good faith - - with policyholders and define "bad faith" as delaying, withholding, or denying policyholder benefits based on legitimate claims filed under valid insurance policies.  

Bad faith laws require insurance companies to "adjust", i.e., deny or pay, a claim within a reasonable period of time, cooperate with claimants through all dealings, including promptly responding to policyholder inquiries, and express the exact reason for denying requested benefits by citing the policy provision upon which that decision relies.   

Bad Faith Claims and Recovery 

When it wrongfully delays, withholds, or denies benefits, bad faith law empowers injured policyholders to seek relief from the insurance company through a tort, or personal injury, lawsuit.  

Bad faith law requires an insurer who has acted in bad faith to compensate the policyholder both the original claim's amount and any other losses resulting from the denial of benefits.  Further, to deter future wrongful acts, bad faith law provides for recovery of punitive damages from insurance company.

Class Action and Mass Tort Actions

Class actions are procedural device to determine the rights and remedies of large numbers of people whose cases involve common questions of law, fact and harm suffered in areas including insurance, banking, securities, workers' rights, maritime and unfair trade and consumer protection.

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, mass tort actions involve similarly situated people whose claims are brought in one "mass tort " complaint seeking the efficiencies and economic leverage that class action's provide. 

What Are Class Actions 

A class action is a civil lawsuit brought by one person on behalf of a larger group of people who have suffered a similar harm or have a similar claim.  Class actions can be brought in federal or state courts and are used when too many people have been affected by the subject of the claim for each to file separate lawsuits frequently involving injuries resulting from hazardous products and drugs like tobacco, asbestos, Agent Orange, breast implants, and contraceptives.  

Class actions are also used in securities (e.g., fraudulent financial statements or releasing false information about stocks and other forms of market manipulation) and employment (e.g., wage/hour laws violations and mass dismissals) cases or to stop illegal or harmful practices like oil spills, manufacturing pollution, or Constitutional protection violations. 

Mechanics of Class Action Proceedings 

A lawsuit becomes a class action when a plaintiff, called the "Lead Plaintiff", files a lawsuit claiming that a harm has been suffered and requesting that the case be certified as a class action.  

To have the case certified, the Lead Plaintiff must demonstrate that:

• a legal claim exists against the defendant(s);

• a significantly large group of people have been injured in a similar way and their respective claims involve similar issues of fact and law as that of the Lead Plaintiff; and

•the Lead Plaintiff is typical of the class members, has a reasonable plan and ability to adequately represent the class, and has no conflict with other class members.  

If certified as a class action, the court will order that the class of affected people be notified including through direct mailings.  Class membership is usually automatic and, unless they choose to "opt out", everyone affected by the wrongdoing will be part of the case.

Unless they have evidence to offer, class members generally are not involved in the case nor the settlement negotiations.  Instead, the Lead Plaintiff consults with the class action attorneys to develop the case's strategy (including and accepting settlement offers) and other class members only may choose to accept or opt out of the settlement.

 

Class Action Recoveries 

Because few class actions proceed to trial, and often settle following class certification, a large portion of the proceeding involves forging a settlement. 

The court decides how to divide any recovery and the attorneys are given costs and fees, often calculated as a percentage of the entire recovery.  The Lead Plaintiff receives an amount partly determined by his participation, and the rest of the recovery is then divided among the class members.

Mass Tort Actions 

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, many disputes involve similarly situated people whose claims are brought in one "mass action" complaint seeking the same efficiencies and economic leverage as if a class had been certified. 

Because they operate outside class action's detailed procedures, mass torts actions can pose special difficulties.  For example, unlike a class action settlement, which follows a predictable path of negotiation with class counsel and representatives, court scrutiny, and notice, a uniform method for settling all mass tort claims may not exist.  

Some states permit plaintiff's counsel to settle all mass tort plaintiffs claims according to a majority vote while others require each plaintiff to approve the settlement of that plaintiff's respective claims.