Types of Medical Malpractice
Most patients know to investigate their surgeon and their hospital if they are going to have surgery. Almost nobody thinks to look into who will be providing anesthesia care during their operation. The reality is that the anesthesia provider in many operations is the most important part of your health care team. They don’t merely provide anesthetic agents – they are the individuals who are responsible for fluid management, circulation, breathing, and most other necessities of life before, during and after an operative procedure.
Anesthesia mistakes can result in serious injury and even death. In addition to errors relating to medication dosage and interactions, common negligence issues include mismanagement of fluid; inadequate monitoring of blood pressure; inadequate airway management; and improper response to anesthesia emergencies.
Another trend that has effected this area is the use of nurses to fulfill traditional physician duties. For example, some hospitals will use nurse anesthetists to provide primary anesthesia care in an operating room, and one anesthesiologist “overseeing” many nurse anesthetists in many different operating rooms at once. In other cases, some physicians who operate in their offices under general anesthesia use nurse anesthetists without an anesthesiologist on site at all!
An example of an anesthesia case handled by the lawyers at Kelley/Uustal is the case of a gentleman who was undergoing a hip-replacement operation. The man worked at the hospital and knew the hospital’s system of providing nurse anesthetists instead of doctors, so he consented to the procedure only if a doctor anesthesiologist would be administering the anesthesia care. An anesthesiologist was present to put the patient to sleep and then left once the man was unconscious, being replaced by a nurse. The nurse went on to put the patient into fluid overload, administering 11 liters of fluid (there are only 5 liters of blood in most peoples system to begin with!). The man went into cardio-pulmonary arrest and was deprived of oxygen. He was left with a significant brain-injury due to the negligence of his health care team. A multi-million dollar confidential settlement was recovered on his behalf.
Bariatric Surgery/Gastric Bypass
Obesity is defined as when an individual’s weight is 20 percent or more than his or her ideal bodyweight. Obesity becomes “morbid obesity” when it significantly increases the risk of one or more obesity-related health conditions or serious disease. Morbid obesity is also defined as being 100 pounds or more over ones ideal bodyweight or having a body mass index (BMI) of 40 or higher. It is estimated that over one third of Americans are overweight or obese, and 5-10 million of those are morbidly obese.
Bariatric surgery is surgery on the stomach and/or intestines to help a person lose weight. Common procedures include gastric bypass and gastric banding, with the Roux-en-Y gastric bypass being the most common.
Mistakes during and after these procedures can result in serious injury or death. Common medical errors fall into two categories. The first are errors that occur during the surgery itself, such as anesthesia errors or surgeon’s mistakes. The second, and more common, are errors that occur after surgery. For example, gastric bypass involves cutting and stitching the digestive tract. Sometimes surgeons do not adequately assure that the stomach and/or intestines are closed and reattached properly and the operation “leaks” into the patient’s abdomen. This situation can lead to serious and life-threatening infections. Another common post-surgery negligence issue is when a bariatric surgery patient develops an intestinal blockage following surgery. This can lead to serious gastric complications or a condition known as “aspiration” (when stomach contents end up in the lungs), both of which can kill a patient if not prevented or treated immediately.
An example of a bariatric surgery case handled by the lawyers at Kelley/Uustal is the case of a lady who experienced an intestinal blockage following a gastric bypass procedure (a recognized and correctable complication). Because she had a blockage, everything she swallowed was accumulating in her stomach and small bowel, and not moving through the digestive tract. The simple solution to this is to insert an “NG” tube (a naso-gastric tube that goes in the nose and down to the stomach to safely drain the stomach contents). She never got this, and days later, during a second operation to remove the obstruction, she vomited several liters of acidy fluid into her lungs. She died from the aspiration. A $1.5 million recovery was made on behalf of her children from the surgeon, hospital, and anesthesiologist involved in the case.
Birth Injury/Labor and Delivery
Perhaps the greatest tragedy we see is an injury to an infant. The most fragile time in human life is the period surrounding labor and delivery. Emergencies can arise that can threaten the life and well-being of both mother and baby, and hospitals should be set up to monitor for, detect, and treat these conditions so as to protect their two patients – mother and baby. Typically these situations start with a perfectly normal and healthy pregnancy and a perfectly normal and healthy fetus that is then hurt due to the negligence of doctors and nurses. Sadly, these injuries seem to occur with the same fact patterns repeating themselves (and frequently the same doctors over and over again).
One fact pattern that arises often is that of ongoing fetal distress. The standard of care requires continuous electronic fetal monitoring during labor. This monitoring tracks mom’s contraction pattern and baby’s heart beat. There are certain patterns that arise that alert doctors and nurses to situations where the baby is not tolerating labor and needs to be delivered quickly by cesarean section. If ignored, this situation can lead to a baby not getting enough oxygen and blood flow to their brain – one of the leading causes of cerebral palsy (CP).
Another frequent cause of birth injuries is an inadequate response to an obstetric emergency. Placenta previa (when the placenta is over the cervix – the opening where the baby is supposed to go out), placental abruption (when the placenta separates from the wall of the uterus), and certain infections can all be emergencies that can result in injury or death if not addressed.
Brachial Plexus injury (Erb’s Palsy) is another preventable injury. The Brachial Plexus is a bundle of nerves that goes from the spinal cord to the hand and arm. When a baby is too large to be delivered vaginally, their head is delivered but one or both of their shoulders gets “stuck” – this is known as shoulder dystocia. Excessive traction and pulling by a doctor can injure those nerves and result in a paralysis of the arm and/or hand. It can be avoided in two ways. First, if the doctor knows in advance that the baby is going to be very large (“macrosomic”) a c-section can be scheduled. Second, once a shoulder dystocia is encountered, there are numerous maneuvers that can be performed to overcome it, and avoid injuring the brachial plexus nerves.
An example of a birth injury case handled by the lawyers at Kelley/Uustal is the case of a young mother who went to the hospital because she thought she might be in labor. The nurses started electronic fetal monitoring, and concluded that the fetal monitoring strip was non-reassuring, and that the baby needed help. The nurse testified that she called the doctor and the doctor said not to bother him. The doctor testified that the nurse was lying and he never got a call. They all agreed that the baby was in fetal distress and needed help, but they all blamed each other for the baby not getting medical attention. It was hours later before a doctor came in and delivered the baby. A $4 million recovery was made.
Early detection and treatment of cancer provides the best opportunity for cure. Many types of cancer have wonderful survival statistics – if they are caught early. This is especially true with today’s advances in medications and technology. All this rests on one important factor – a doctor has to appropriately suspect, test for, and diagnose the cancer.
Many types of cancer have signs and symptoms that should alert doctors to a potential problem. In the case of breast cancer a woman might feel a lump, or have a suspicious mass detected on mammogram. With colon cancer one might experience rectal bleeding or abnormal stools. With cervical cancer there might be abnormal bleeding or discomfort. In many cases people don’t know that their symptoms are serious, and they’re not supposed to. Doctors are supposed to know – that’s their job.
Failing to diagnose and treat cancer in the face of classic signs and symptoms is like stealing someone’s life. It is malpractice that can result in extensive and painful treatments, amputation, and death. It disrupts the life of the person who’s hurt, and the lives of their entire family.
An example of a case handled by the lawyers at Kelley/Uustal that involved a failure to diagnose cancer is the case of a young man who went to the doctor because he was experiencing rectal bleeding. His doctor was an HMO doctor, and the tests to screen for colon cancer would have come out of the doctor’s own pocket. So, he didn’t do the testing. He diagnosed hemorrhoids and sent the patient on his way. This went on for two years and multiple visits each year. The man continued to experience rectal bleeding, abnormal stools, abdominal pain, weight loss, and eventually anemia from losing so much blood, and the doctor kept saying hemorrhoids. He eventually went to a gastroenterologist who quickly diagnosed his colon cancer (and the fact that the man never had hemorrhoids – the first doctor didn’t even look!). Unfortunately by that time it was too late. The first doctor had allowed the cancer to grow and spread. A $2.5 million recovery was made on behalf of his 5 children.
Cardiology Heart disease is a leading cause of death in America, but it is often detectable and treatable. Symptoms can include chest pain and/or tightness, shortness of breath, pain in the left arm, sweating, nausea, dizziness, and others. Cardiology cases can arise at several different points in time.
Sometimes heart disease manifests through signs and symptoms that should be apparent to a doctor, such as chest pain, dizziness, or shortness of breath on exertion. In this type of situation a doctor has the opportunity to detect and treat heart disease (also called atherosclerosis or “hardening of the arteries”) before it has the chance to cause a heart attack (myocardial infarction). It can then be treated through procedures such as angioplasty (“ballooning”) or a coronary artery bypass operation.
In other situations a person has had a heart attack and a doctor or hospital misdiagnosis it. Prompt laboratory testing and imaging studies can aid in the diagnosis, and then immediate treatment can save a person’s life.
A third type of situation arises from negligence during and after cardiac surgery. Surgical procedures often require a disruption of blood flow that can cause paralysis or death if not managed properly. After surgery doctors and nurses must monitor their patient very closely for signs that any of the affected blood vessels might leak (this can result in a condition called “cardiac tamponade” where blood and fluid surrounds the heart and prevents it from beating, or, in some cases, a person can bleed to death).
An example of a cardiology case handled by the attorneys at Kelley/Uustal is the case of a man in his thirties who needed a valve replacement operation. The surgeon operated on the man, and then never saw him again. He left the post-operative care to his nurse. Over the next few days in the hospital the sutures leaked, and the man bled into his chest. Each day the chest x-ray would show his lungs filling more and more with blood, and his laboratory values showed he was losing blood – but the doctor never saw him and the nurse didn’t figure it out. When he lost so much blood that he became disoriented and confused from lack of blood and oxygen to his brain, the nurse diagnosed a panic attack and gave him Xanax to relax him. He died hours later having bled to death over the course of days in a hospital. A confidential settlement was reached.
Cosmetic surgery is almost always elective surgery designed to improve ones appearance. However, it is still surgery and can result in serious and life-altering health consequences. There are several issues that arise frequently with cosmetic surgery.
First, many plastic surgeons operate in their office and perform multi-hour complicated procedures under general anesthesia. If an emergency arises they are often ill-equipped to address it so far from a hospital. Also, many plastic surgeons use nurse anesthetists instead of doctor anesthesiologists to save money. During a complicated procedure it is a nurse who manages a patient’s breathing, circulation, and airway!
Another current trend is for non-plastic surgeons to perform plastic surgery procedures. Obstetricians and other non-surgeons are taking weekend courses in liposuction and holding themselves out as experts. Optometrists are offering cosmetic procedures. The result is inexperienced doctors venturing out of their expertise, and frequently causing undesirable results.
Problems also frequently arise when patients have co-morbidities (other serious health issues, like diabetes, high blood pressure, or some other disease processes). We unfortunately see too many cases where the plastic surgeon should not have risked the patent’s life and health by placing them under general anesthesia and performing invasive procedures.
Nerve damage and disfigurement are yet more devastating results of these procedures. Still, the most tragic cosmetic surgery cases involve death and brain damage. Cosmetic surgery is both art and science, and there is never a guarantee that a patient will be satisfied with his or her cosmetic result (within reason). However, no patient assumes the risk of going to a plastic surgeon to make their breasts or nose look better and losing their life or sustaining a brain injury as a result. This is particularly true when you consider that the surgery wasn’t necessary (required for health reasons) in the first place.
An example of a plastic surgery case handled by the attorneys at Kelley/Uustal is the case of a woman who went to plastic surgeon for a tummy-tuck. The woman was overweight and had high-blood pressure, but the surgeon convinced her to have the operation in his office anyway. During the procedure her blood pressure was allowed to go dangerously low, and she arrested. They were unable to resuscitate her and she died as a result. A $2.2 million recovery was made on behalf of the woman’s husband and children.
Emergency medicine is a unique area due to the wide range of conditions that are dealt with. The job of the emergency room physician involves more than just the evaluation and treatment of trauma and sudden illness. Many chronic or long-standing conditions can become emergent and require rapid and appropriate attention.
Emergency rooms are often some of the busiest, poorly staffed, and overworked areas of hospitals. It has been estimated that half of people who die each year from medical malpractice are killed as a result of emergency room errors.
Common emergency room issues include improper diagnosis and treatment of conditions such as heart attacks, strokes, and infection, as well as improper responses to trauma and acute injury.
Inadequate response to stroke is a particularly tragic problem. Strokes most commonly come in two varieties – thrombotic (a clot) and hemorrhagic (bleeding). Both are usually diagnosable with a prompt CT scan, and are usually treatable once diagnosed. However, both varieties require a very rapid response, and in some cases the treatment is not beneficial after a set time period. Too often these patients are either made to wait long periods, or are misdiagnosed and discharged.
An example of an emergency medicine case handled by the attorneys at Kelley/Uustal is the case of a boy who presented to the emergency room having a stroke following a head injury. The facility wanted to transfer him to another hospital because the boy’s family didn’t have private insurance. A dispute arose between the doctors at the two facilities, but no doctor would treat the boy – the facilities blamed each other for not intervening. The boy was left in a wheelchair for life. A $7 million recovery was made on behalf of the boy and his family.
Errors in Diagnosis
Errors in diagnosis are seen in cases of failure to timely diagnose cancer, heart disease, and in failure to diagnose emergent conditions in ER’s. They are also seen with ongoing disease processes. Too often patients will go to their doctor with obvious signs and symptoms of a disease process and the doctor fails to put the pieces together and make the diagnosis.
Examples include cases of infections that are misdiagnosed and go on to worsen into sepsis (an overwhelming infection of the entire bloodstream); failure to diagnose benign tumors that go one to involve and injure other parts of a person’s body; abnormal laboratory values that are ignored or overlooked; abnormal x-rays or CT’s that are not responded to; and diseases that are undiagnosed and untreated.
An example of a case involving an error in diagnosis that was handled by the attorneys at Kelley/Uustal is the case of a lady who felt a lump on her breast. She had a biopsy performed (a piece of the lump was removed for testing), and was told it was a very aggressive cancer and that she would need to have both her breasts removed. After removing the woman’s breasts, the hospital was unable to find cancer in them. They took almost 100 samples from her tissue and looked at them under the microscope, but they were all normal. They told the lady that they must have gotten all the cancer out when they did the biopsy.
The lady consulted with us because she thought there was a delay in diagnosing her cancer. We reviewed the medical records and suspected something different had happened. We had the original biopsy slide DNA tested and compared with the woman’s DNA. They were not the same – the lab had switched the slides! The woman was told she had cancer when she didn’t, and another lady who had cancer was told her biopsy was normal. One woman had both of her breasts removed for nothing, and another woman had an aggressive cancer left in her body because of a laboratory technician’s mistake. A confidential settlement was reached.
The injection of HMO’s into the medical system and between the doctor and the patient is an unfortunate recent trend in medicine. The problem is more than just rationing healthcare – it destroys health care in several ways.
First is the curse of capitation. Capitation is a system that HMO’s use to compensate doctors. A capitated physician is usually paid a set amount of money per patient on his or her “list” each month – commonly an amount between $5 and $10. The result is that the only way a doctor can make more money is to have more patients on their list. But, the more patients on their list, the less time they can spend with each and greater the chance that malpractice will occur. This is also why HMO physicians’ waiting rooms are always packed, and the wait to see them is so long.
A second danger of capitation is that it often includes provisions that financially discourage the doctor from ordering testing. Their contracts frequently contain a list of common testing procedures that must be paid out of the doctor’s own pocket if ordered. Sometimes the ordering of tests will cost the doctor more than he or she makes for the year of having the patient on their list! This creates a serious disincentive to perform necessary testing and follow-up.
Third, doctors want to maintain their “preferred provider status.” HMO’s rate their doctors based on their utilization – a fancy way of saying they monitor how much a doctor costs them in test requests and hospital stays. Doctors have a justified fear that if they order what the HMO might consider to be too much testing they might lose their preferred provider status, and a large portion of their patients. This is another situation that can force a doctor to choose between the hand that feeds them and the best interest of the patient.
Finally, there are actual HMO medical decisions. Many times hospital stays and expensive testing or treatment must be pre-approved by the HMO – and sometimes they say no! Unfortunately they sometimes say no to testing and treatment that could have saved a person’s life.
The biggest tragedy of all of this is the way that HMO’s have perverted a federal law called ERISA. ERISA is a federal law that was originally designed to protect people from big insurance companies. However, a very small section of this huge act provides that an individual has the right to file a grievance against their HMO. Another small provision of the law says that ERISA preempts (is chosen over) state law. Some courts have put these two together and concluded that ERISA’s right to file a grievance against an HMO preempts state medical malpractice law and prevents an injured person from suing the HMO that hurt them.
An example of an HMO case that we were involved in is the case of a 6-year-old girl who was taken to her pediatrician because she was experiencing persistent vomiting. Her pediatrician correctly recognized that when vomiting persists for long periods it can be a sign of a brain tumor. He ordered a CT scan to be done. The request was rejected by the HMO as “not medically indicated.” Months later the little girl started screaming and holding her head. The tumor was allowed to expand to the point that it killed her. It turned out to be a benign tumor that was fast-growing but would have been very treatable back when the CT was rejected by the HMO. A $7 million recovery was made for the family.
Medication errors are one of the leading causes of death and injury in hospitals today. They arise in several situations.
Dosage errors are the most common, and the most dangerous variety of these are decimal point errors. A nurse or pharmacy will read”10” instead of “1.0” and a patient will end up getting 10 times the dose prescribed – often a lethal dose.
Mistaken medication types are also common – some drug names are similar and the nurse or pharmacist can mistake one for another.
Allergic reactions are frequently seen. Usually the allergy information is actually on the chart itself, but the physician or nurse fails to read it. When the wrong medication is given it can result in a severe allergic reaction known as anaphylaxis, which can lead to anaphylactic shock, and ultimately death if not properly treated.
Medication errors can also occur when a medication is contraindicated (a situation where the drug should NOT be used). For example, many medications are contraindicated if someone is pregnant, or in combination with other medications, or if a person has a certain disease process.
Medication errors can cause serious injury or even death. They are also one of the hardest types of malpractice to detect. Frequently the medical professionals don’t admit their mistake (in fact they almost never admit their mistake). All a family knows is that their loved one died suddenly. It is important to bring your case to an experienced medical malpractice attorney who knows how to find issues like this if they are present.
An example of a medication error case that we were involved in is the case of a young girl who was stricken with Guillian-Barre syndrome (a condition that can cause temporary weakness or paralysis). The girl was undergoing a simple operative procedure during which she suddenly died. The girl’s husband went to a lawyer because he wanted to know why his wife died.
Doctors and experienced malpractice lawyers know that when someone has Guillian-Barre syndrome, there is an anesthesia drug called Succynylcholine that should never be given because it causes a deadly reaction. This girl was given this drug and it caused her death. The hospital and the doctors, however, told the man they didn’t know why she died – they lied
Our office ordered the chart and reviewed it – it was hundreds of pages long. We saw nothing unusual at first, except the fact that an edge of the anesthesia record was cut-off. It turns out they copied the record so that the corner of the page that said Succynylcholine wouldn’t get copied! A multi-million dollar confidential settlement was reached.
There have been many recent breakthroughs in the field of ophthalmology, and some of them are still very controversial. Some types of laser procedures and lens implantation procedures are widely criticized, but still touted and recommended by practitioners (they are very profitable procedures). The result can be worse vision instead of improved vision – or worse. Many are left blind from these procedures either directly or indirectly. The most frequent injury is detached retina which, if not promptly diagnosed and treated, can result in permanent blindness.
Other ophthalmology issues include infections, failure to treat trauma injuries, failure to diagnose and treat eye problems that worsen, and surgical mishaps.
An example of an Ophthalmology case handled by the attorneys at Kelley/Uustal is the case of a lady who went to an optometrist for years for glasses and routine check-ups. She started experiencing flashes, spots, and vision disturbances, and she went to her optometrist. He performed a cursory exam, and said it was normal. She went back to him several times over the next year-and-a-half as the problem got worse – each time the same, a cursory exam and a reassurance it was normal. Eventually she switched doctors and was diagnosed with a cancer in her eye that was so big that it took up 60% of the volume of her eye. It could be seen just by looking into her eye with a flashlight, yet the doctor she saw a month earlier didn’t diagnose it. A multi-million dollar confidential settlement was reached.
Orthopedic medicine is the specialty that deals with disease or injury to bones and joints. Issues in orthopedic medicine include failure to diagnose fractures, improper treatment of fractures, and problems during joint replacement – but there are also other aspects to orthopedic care that can result in serious injury to an individual.
People who have fractures are at an increased risk of developing a potentially deadly complication known as pulmonary embolism. This is when a blood clot develops and blocks blood-flow between the heart and the lungs. There are medications and precautions that can prevent this occurrence, and orthopedists are supposed to know this.
Orthopedic operations are also just that – operations. All risks of negligence during an operative procedure come into play, including anesthesia errors, nursing errors, and surgical mistakes (such as negligently cutting nerves or blood vessels).
Radiology is a unique area of medical malpractice law in that there is almost always a “picture” that is the basis for the case. Whether it is an x-ray, CT scan, MRI, Mammogram, or other, there is a film or computer record of the diagnostic imaging performed. The picture, though, is also what makes these cases so complex. These images are usually just shades of black, white, and grey. And, while doctors and experienced malpractice lawyers might recognize a spot as an obvious tumor or abnormality, defendants and insurance companies hire unscrupulous experts do defend negligent doctors and tell juries that the missed diagnoses are really just normal structures.
At Kelley/Uustal we have handled all sorts of radiology cases, including failures to diagnose breast cancer on mammography, failures to diagnose tumors (such as brain, lung, bone, and colon tumors), failures to diagnose fractures, failures to diagnose spinal injuries, improper interpretation of cardiac studies, and many, many more.
An example of a radiology case handled by the lawyers at Kelley/Uustal is the case of a gentleman who was in a car accident. A radiology study was performed on his spine, which showed an area where a broken piece of bone was compressing the spinal cord. The study was read as normal. Due to the radiologist’s mistake the man went on to become paralyzed. A confidential settlement was reached.
During a surgery we literally place our lives in the hands of health care professionals. Unfortunately surgical mistakes happen more often than most people might think, and they can take place before, during, and after surgery.
Issues that arise before surgery usually involve patients that shouldn’t be having surgery in the first place. Unnecessary surgeries are performed when a doctor doesn’t appropriately assess a patient’s signs and symptoms, comes to mistaken diagnosis, and then performs a mistaken surgery. Other times a patient might have “co-morbidities” (other diseases or conditions, like diabetes, heart disease, or high blood pressure) that outweigh the need for a surgery that isn’t absolutely medically necessary.
Issues commonly seen during the surgery itself include injuries to other body structures, like organs, blood vessels, nerves, or bowel; non-sterile technique that leads to infection; retained sponges, towels, and instruments; and even wrong site surgery. We also see errors in anesthesia and nursing care that can also lead to devastating results.
Post-surgical issues commonly stem from a failure to recognize and treat injuries that occurred during surgery. For example, if the colon is perforated during an abdominal operation, its contents can leak into the abdomen and cause an infection. If not recognized and treated promptly the infection can turn into sepsis (an infection of the entire blood stream) and result in brain injury, loss of limbs, and even death.
An example of a surgical mistake case handled by the attorneys at Kelley/Uustal is the case of a young man who underwent back surgery. Following the surgery he became pale, cold, short of breath, disoriented, and anemic. His doctors and nurses failed to recognize that during the procedure they had nicked an artery that was then bleeding into his abdominal cavity – and that his post operative condition was due to this ongoing blood loss. Eventually he lost so much blood that he arrested. He was left with a brain injury. What’s worse, the back surgery during which all this happened was botched and had to be re-done in a later back surgery by a different doctor! A confidential settlement was reached.