Call for a Free Consultation1-800-991-0474Home About The Firm Areas of Practice Videos Blog Resources ContactArchivesJanua...
emergency medicine physicians’ liability for committing medical mistakes. Ifpassed, Ohio SB 129 would shield doctors, phys...
We all know that texting while driving is extremely dangerous, and that doingso can cause fatal accidents. However, the da...
A recent article published in Claims Journal described how “rogue” physiciansare becoming an increasing problem. In the ar...
cholesterol levels, thereby causing diabetes or coronary artery disease.It is not uncommon for physicians to use a medicat...
identifies doctors by name! The Illinois site also lists whether physicianshave been fired, had disciplinary actions again...
privileges at certain institutions. That, in itself, keeps dangerous doctors fromharming other patients.Additionally, Prof...
Thankfully, courts have repeatedly held that KRS, 311.377, Kentucky’s peerreview statute, does not prevent medical malprac...
draconian as its opponents are claiming. That is because victims may stillrecover if they can prove that an emergency medi...
Telford Terrace, RichmondThe Terrace Nursing & Rehabilitation Center, BereaFour starsCardinal Hill Rehab Unit at Samaritan...
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Outpatient Care Errors – Why More Must Be Done To Prevent Them

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According to a recently published study, over the past decade, there has been a dearth of funding aimed at improving the care patients receive during outpatient visits. This is especially important, because ambulatory care patient visits outnumber hospital admissions by 300 to 1. Despite these numbers, over 50% of all medical malpractice settlements are for adverse events that occurred in outpatient (office) settings. What’s more, over 65% of those cases involved “major” injuries or death.

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Outpatient Care Errors – Why More Must Be Done To Prevent Them

  1. 1. Call for a Free Consultation1-800-991-0474Home About The Firm Areas of Practice Videos Blog Resources ContactArchivesJanuary 2012December 2011November 2011October 2011Seth GladsteinOutpatient Care Errors – Why More Must Be DoneTo Prevent ThemPosted on January 11, 2012 by SethAccording to a recently published study, over the past decade, there has beena dearth of funding aimed at improving the care patients receive duringoutpatient visits. This is especially important, because ambulatory carepatient visits outnumber hospital admissions by 300 to 1. Despite thesenumbers, over 50% of all medical malpractice settlements are for adverseevents that occurred in outpatient (office) settings. What’s more, over 65% ofthose cases involved “major” injuries or death.According to the American Medical Association’s Center for Patient Safety,the most common errors committed in outpatient or office settings includeincorrect prescribing of medications, misdiagnoses, failing to report testresults, and poor communication. (For example, according to a 2009 studypublished in the Archives of Internal Medicine, office-based physicians failedto follow up on clinically meaningful test results almost 8% of the time.) TheAMA’s website quoted Matthew K. Wynia, M.D., M.P.H. as saying thatmissed test results “should never happen.” Dr. Wynia further stated, “Youordered the test. Why did you order the test if you weren’t going to dosomething with the result? It’s almost like a never event. If you’re going toorder the test, then what you’re going to do with the result needs to be clear.”In the Journal of the American Medical Association‘s December 14, 2011issue, a commentary co-authored by Dr. Wynia concluded that more researchmust be performed to determine why so many errors are committed inoutpatient-based settings, and the total number of mistakes that haveoccurred. To date, no definitive studies have been performed to determine thenumber of preventable mistakes committed in outpatient settings. However,according to a 1999 study, as many as 98,000 Americans die every year inhospital settings due to malpractice. One can only assume that based uponthe disparity between the number of office visits and hospital admissions, thenumber of Americans who die annually from medical mistakes committed inoutpatient settings may be as high as 250,000. The AMA website alsoquoted David C. Classen, M.D., who co-authored the aforementionedcommentary with Dr. Wynie, as saying, “Nailing down the incidence [ofoutpatient care errors] is the only way you can measure whether all theseinterventions are really leading to any improvements. There are a lot ofevangelical beliefs in patient safety – that if we just do this, it will get better.But it won’t get better if we don’t have any reliable way to measure.”The AMA should be congratulated on recognizing that more must be done toimprove the care patients receive in outpatient settings. However, before anymeaningful steps can be made, there must be adequate funding to study whyso errors are being committed, and what healthcare providers can do toprevent making those errors again and again.Read more about the issue of ambulatory care errors on the AMAwebsite: http://www.ama-assn.org/amednews/2012/01/09/prl10109.htmThe full text of Drs. Wynie and Classen’s recent commentary can be foundhere: http://jama.ama-assn.org/content/306/22/2504.extractPosted in Medical Malpractice | Tagged louisville medical malpractice attorney,medical errors, medical malpractice, patients rights | Comments OffSay It Ain’t So – Another State Legislature ToConsider Limiting Emergency Medicine Providers’LiabilityPosted on January 9, 2012 by SethIn November 2011, I blogged about the Ohio Legislature’s efforts to limitContact Us NowName:Email:Phone:Message:Enter the code above here :Cant read the image? Refresh image.Where We AreView Larger Map312 South 4th Street #600Louisville, KY 40202Office: 502-855-4177Toll free: 1-800-991-0474Cell: 502-230-1078Fax: 502-587-2007
  2. 2. emergency medicine physicians’ liability for committing medical mistakes. Ifpassed, Ohio SB 129 would shield doctors, physician extenders (such asphysicians’ assistants and nurse practitioners), dentists, optometrists, andnurses from liability, so long as they are providing care for an “emergencymedical condition” as defined by the federal Emergency Medical Treatmentand Active Labor Act (“EMTALA”), or acting as a result of a disaster, and arenot engaged in willful misconduct. Now, Florida is considering a similar billcapping emergency medicine physicians’ liability.On Thursday, January 5, 2012, Senator John Thrasher (R. – St. Augustine),introduced SB 1506, a bill that would make emergency medicine providersstate agents, thus entitling them to sovereign immunity. By doing so,emergency medicine physicians’ liability for committing medical errors wouldbe capped at $200,000.00. (In those cases where a jury awards more amedical malpractice victim more than $200,000.00, SB 1506 would require thevictim to seek the remainder of the damages directly from the FloridaLegislature. However, as we know, the current Florida Governor is aRepublican, and Republicans control both chambers of the Florida Legislature.Thus, the chances of a Republican-controlled Legislature awarding medicalmalpractice victims anything above the proposed $200,000.00 damages cap isa long-shot, at best.)Additionally, SB 1506 would drastically change the burden of proof in medicalnegligence cases against emergency medical providers. If passed, SB 1506would require medical malpractice plaintiffs to prove by “clear andconvincing evidence that the alleged actions of the health care providerrepresent a breach of the prevailing professional standard of care in an actionfor damages based on death or personal injury which alleges that the death orinjury resulted from the failure of a health care provider to order, perform, oradminister supplemental diagnostic tests.”Finally, SB 1506 would allow emergency medicine providers’ defenseattorneys to conduct ex parte interviews with medical malpractice plaintiffs’prior and subsequent treating physicians. In other words, if passed, SB 1506would allow a defense attorney to interview a plaintiff’s physicians without firstgiving notice to the plaintiff that such an interview was going to be conducted.Senator Thrasher rationalized this draconian legislation, upon the groundsthat emergency room doctors must provide certain basic care and treatmentto every person who presents to the ER, and because emergency medicineproviders are prohibited from turning away patients, their malpracticeinsurance premiums are expensive. At the same time, however, SenatorThrasher’s proposed bill needlessly limits medical malpractice victims’ accessto justice, and their right to fair and just compensation.If you, a loved one, or a friend lives in Florida, I strongly urge you to call yourState Senator and Representatives, and voice your opposition to SB 1506.By doing so, you can help ensure that the medical care and treatment peoplereceive in their local ER is appropriate. Otherwise, SB 1506 may giveemergency medicine providers no incentives to actually improve the care thatthey render.Read more about SB 1506 here:http://www.jaxdailyrecord.com/showstory.php?Story_id=535351Read SB 1506′s entire text here:http://www.flsenate.gov/Session/Bill/2012/1506/BillText/Filed/PDFRead my previous post regarding Ohio’s efforts to limit medical malpracticevictims’ rights here:http://commonwealthinjury.com/blog/2011/11/17/medical-malpractice-louisville-ohio-legislature-considering-bill-that-would-severely-limit-medica-malpractice-victims%E2%80%99-right/Posted in Medical Malpractice | Tagged emergency medicine, louisville medicalmalpractice attorney, medical malpractice, patients rights | 1 CommentSmartphones – Is Your Doctor Being Distracted ByAn Incoming Text or Email When RenderingTreatment?Posted on January 5, 2012 by Seth
  3. 3. We all know that texting while driving is extremely dangerous, and that doingso can cause fatal accidents. However, the dangers associated withsmartphones are not only limited to driving. According to a recent articlepublished on the American Medical Association’s website, an increasingnumber of our healthcare providers are using their smartphones whileperforming procedures, or rendering medical care and treatment. Moreover,there is anecdotal evidence suggesting that doing so has resulted inpreventable medical errors and harm, and that the distractions smartphonescause may worsen the care patients receive.The article’s author notes that 80% of all physicians currently in practice carrysmartphones, such as an iPhone or Android. Additionally, approximately 33%of currently practicing physicians and other healthcare providers use tabletcomputers, such as the iPad, when rendering care and treatment.Unfortunately, these now-ubiquitous devices bombard people with information,and often cause distractions when an incoming email or text message isreceived.According to an August 2011 study published in the Journal of MedicalInternet Research, physicians are interrupted approximately five times eachhour by telephone calls, emails, and interpersonal interactions. Furthermore,a recent study published in the Archives of Internal Medicine concluded thatwhen nurses are interrupted while preparing or administering medications, thechances of a procedural or clinical error increase 12%. What’s scarier is thata 2010 survey demonstrated that over 50% of perfusionists use theirsmartphones while delivering patient care, including cardiopulmonarybypasses. Of the respondents, 21% stated that they checked email, 15%surfed the Internet, and 3% posted to social networking sites, such asFacebook, while performing procedures.The AMA articles also discussed the frightening case of one medicalprofessional who became distracted when answering a text. As a result, oneof the provider’s patients was severely injured. In that instance, a 56 year-oldpatient who had been admitted to an teaching hospital needed to have hisgastrostomy tube (G-tube) replaced. Before it could be replaced, however, hisblood thinners needed to be stopped. The physician thus instructed theresident rounding with him to issue a stop order. The resident began enteringthe stop order via her smartphone, which could access the hospital’scomputerized physician order entry system. However, before completing theorder, the resident received a text from a friend, who asked if the resident wasattending an upcoming party. The resident answered her friend’s text, butforgot to complete entering the order to stop the patient’s bloodthinners.As a result of the resident’s failure to issue the stop order, the patienterroneously received blood thinners, and subsequently developed shortness ofbreath, an increased heart rate, and low blood pressure. The patient requiredopen-heart surgery to remove the blood accumulating in the pericardium,which is the sac surrounding the heart. The patient’s medical team ultimatelyconcluded that the resident’s failure to issue the stop order caused theexcessive bleeding, and the resulting need for open-heart surgery. The AMAarticle quoted John Halamka, M.D., M.S., the author who reported thisunfortunate, but preventable, situation, as saying “Cognitive psychologists whosaid that no matter how well-trained [doctors] are, it is still better to completea task than to try to engage in parallel tasks.”The advent of smartphones has made communicating much easier. However,the distractions they cause may result in devastating consequences. Themedical establishment must institute far-reaching, comprehensive policies andprocedures to limit the problems that smartphone distractions may cause. Ifit fails to do so, patients may be subjected to life-changing harm, and forcedto endure horrific consequences.Read the entire article from the AMA website here:http://www.ama-assn.org/amednews/2012/01/02/prl10102.htmYou can also read Dr. Halamka’s case study here:http://www.webmm.ahrq.gov/case.aspx?caseID=257Posted in Medical Malpractice | Tagged electronic medical records, louisvillemedical malpractice attorney, medical errors, medical malpractice | Comments OffRogue Physicians – Healthcare’s Growing ProblemPosted on December 8, 2011 by Seth
  4. 4. A recent article published in Claims Journal described how “rogue” physiciansare becoming an increasing problem. In the article, Linda E. Jones, ahealthcare consultant from Baltimore, Maryland, defined a “rogue” physicianas one “who may be having problems not doing things legally or ethically.”Ms. Jones further stated, “It’s really a behavioral problem.” The article’sauthor also quoted Ms. Jones as saying, “We do hear more and more issuesof physicians [being involved in] illegal or unethical activity.”Examples of rogue behavior may include patient complaints or grievances,disruptive behavior, sexual misconduct, Medicare or health insurance fraud,and committing criminal acts. For example, in late 2010, a Crestwood,Kentucky woman accused her primary care physician of sexually assaultingher while performing a physical examination. Of course, physicians andother healthcare providers should never commit these heinous acts.Unfortunately, however, when a doctor or other healthcare provider commitsone of these despicable acts, the doctor’s medical malpractice insurancepolicy may not provide coverage. That could result in medical malpracticevictims having little or no recourse against the physicians who injured them.What’s even more troubling is that a public advocacy group, The PublicCitizen, recently reviewed information contained in the National PractitionerData Bank, and found that 55% of physicians who have had their practiceprivileges revoked never faced any state disciplinary or licensing actions fortheir improper conduct. The Claims Journal article quoted Dr. Sidney Wolfe,director of Public Citizen’s Health Research Group, as saying “One of twothings is happening, and either is alarming. Either state medical boards arereceiving this disturbing information from hospital but not acting upon it, ormuch less likely, they are not receiving the information at all. Something isbroken and needs to be fixed.”The aforementioned article discussed one way for medical malpractice victimsto possibly recover for acts which may not be covered by malpracticeinsurance – bringing a negligent credentialing claim. A negligent credentialingclaim may arise when a hospital or medical practice knows about a particularphysician’s prior bad acts, but still elects to give him or her practice privileges,and the physician’s actions then injure a patient. Under this theory, a medicalmalpractice victim may be able to recover against a hospital or medicalpractice, even though he or she is unable to recover agains the physiciandirectly. Thankfully, just this past year, in Burton v. Trover Clinic, 2011 Ky.App. LEXIS 94 (June 10, 2011), the Kentucky Court of Appeals formallyrecognized that negligent credentialing is a viable cause of action in theCommonwealth.If you believe that you or a loved one may be a medical malpractice victim,contact Kentucky medical malpractice attorney, Seth Gladstein. You may callSeth and Gladstein Law Firm at 502-855-4177, or toll free 800-991-0474. Youmay also email Seth – Seth@CommonwealthInjury.com.Read more about this problem in the current issue of ClaimsJournal: http://www.claimsjournal.com/news/national/2011/12/06/196308.htmYou can also read the Kentucky Court of Appeals opinion in Burton v. TroverClinic here: http://opinions.kycourts.net/coa/2009-CA-001595.pdfPosted in Medical Malpractice | Tagged louisville medical malpractice attorney,medical malpractice, negligent credentialing, patients rights | Comments OffGovernment Inspectors Testify That NursingHomes Need To Stop Over-PrescribingAntipsychoticsPosted on December 1, 2011 by SethOn Wednesday, November 30, 2011, the United States Senate held importanthearings on the issue of elderly nursing home residents being improperlyprescribed antipsychotics for dementia. According to the federal Departmentof Health and Human Services, almost 15% of all nursing home residents inthe United States are currently taking antipsychotic medications, such asSeroquel and Zyprexa.Typically, physicians prescribe antipsychotics for people sufferinghallucinations, delusions, and other abnormal behavior associated withschizophrenia or bipolar disorder. However, in the nursing home setting,many physicians prescribe our loved ones antipsychotics simply to reduceagitation and aggressive behavior, which can be associated with dementia.The scary issue with so many seniors taking antipsychotics is that the FDAhas never approved their efficacy for treating dementia. In fact, manyantipsychotic medications’ labels specifically warn against using thosemedications to treat dementia. Moreover, clinical research has revealedthat drugs like Seroquel and Zyprexa can result in increased blood glucose or
  5. 5. cholesterol levels, thereby causing diabetes or coronary artery disease.It is not uncommon for physicians to use a medication “off-label,” whichmeans prescribing it for a purpose that the FDA has not approved. However,in the case of antipsychotics, several drug manufacturers have recently paidsubstantial fines for specifically marketing antipsychotic drugs to physicians,and encouraging their off-label use. Such marketing tactics are illegal. Forexample, one pharmaceutical manufacturer, Eli Lilly & Co., paid over$1,400,000,000.00 in federal fines, after its representatives encouraged tophysicians to prescribe dementia patients 5mg of its product, so as topromote a good night’s sleep.Additionally, federal and state nursing home regulations prohibit nursing homeresidents from being unnecessarily restrained. Those regulations specificallystate that a person can be restrained either physically (for example, via bedrails or wrist restraints) or chemically. The over-prescribing of antipsychoticsraises the issue of whether the people charged with tending to our seniorswould simply prefer to prescribe medication, and hope that patients’problematic behavior stops, rather than treating the underlying medical andpsychiatric issues head-on. Another pharmaceutical company paid$600,000,000.00 for improperly promoting antipsychotics for dementiapatients.When testifying before the Senate earlier this week, Department of Health andHuman Services’ Inspector General, Daniel Levinson, recommended thatMedicare force nursing homes to pay for drugs that have prescribedinappropriately. Mr. Levinson also suggested that Medicare potentially barnursing homes that don’t use antipsychotics appropriately.The over-prescribing of medications to nursing home residents is a practicethat must stop now. It does not improve nursing home residents’ quality oflife. In fact, clinical research has shown that it does the exact opposite, andplaces our loved ones at risk of injury or death.If you suspect that you or a loved one has suffered from any form of nursinghome malpractice, neglect, or abuse, please contact Kentucky nursing homeabuse attorney, Seth Gladstein, for a free consultation. A Louisville, Kentuckyattorney, Seth has the experience to help properly and thoroughly investigatea nursing home negligence, malpractice, or abuse claim, and determinewhether you may possibly recover monetary damages. By calling, you canhelp make nursing home facilities safer for you, your loved ones, and otherresidents. Seth can be reached at (502) 855-4177, or toll-free at 800-991-0474. You may also email Seth at Seth@CommonwealthInjury.com right now.Read more about the Senate’s hearing here: http://www.c-span.org/Events/Senators-Hear-About-Overuse-of-Antipsychotic-Drugs-in-Nursing-Homes/10737425900/andhttp://www.google.com/hostednews/ap/article/ALeqM5hXmcjOaU9OHDvr__4TaNkn2JqrWA?docId=bc5eadf69c194afd9253981d5263077fPosted in Medical Malpractice, Nursing Home Abuse | Tagged elder abuse,louisville medical malpractice attorney, medical errors, medical malpractice,nursing home abuse, nursing home neglect, patients rights | Comments OffThe Federal Government Needs To Follow Illinois’Lead, and Make All Physician BackgroundInformation Open To The PublicPosted on November 30, 2011 by SethA few weeks ago, I wrote about how the federal government temporarily tookthe National Practitioners Data Bank (“NPDB”) offline in September 2011, andthen subsequently placed new rules on how the public can use the informationcontained on the database after it was relaunched. The NPDB is a federally-maintained database that compiles medical malpractice payouts, hospitaldiscipline and regulatory sanctions against physicians and other healthcareproviders. However, the NPDB does not mention offenders by name. Instead,it simply assigns a number to each malpractice payout, or adversedisciplinary action, listed. The new rules that recently took effect now prohibitmembers of the public from using any information contained in the NPDB toidentify any physician by name.In mid-October, Illinois’ Department of Financial and Professional Regulationrecently launched a website, which lists those active Illinois physicians whohave paid a medical malpractice judgment or settlement within the previousfive year. However, unlike the NPDB, the Illinois website, www.idfpr.com,
  6. 6. identifies doctors by name! The Illinois site also lists whether physicianshave been fired, had disciplinary actions against them, or been convicted of afelony or class A misdemeanor. Since launching less than two months ago,the Illinois site has had almost 750,000 hits. This fact demonstrates thatIllinois residents want to learn as much as possible about their treatingphysicians, including whether they have a history of medical malpracticepayouts.Please note that the Illinois site is still working out some kinks. For example,approximately 15% of active Illinois physicians have not signed off on theirpublic profiles listed on the www.idfpr.com site. Additionally, Illinois officialshave encountered problems obtaining criminal histories for some healthcareproviders. A recent Chicago Tribune article described how one Illinoischiropractor failed to include his conviction for patient battery, and, as a result,that critical information was not initially included on the www.idfpr.com site.The aforementioned Chicago Tribune article quoted Sue Hofer, spokeswomanfor the Illinois Department of Financial and Professional Regulation, as sayingthat officials are “really pleased with all the interest” the new website hasgarnered. However, some Illinois politicians rightly point out that the siteshould contain even more information. For example, State Rep. Mary Flowers(D – Chicago), one of the Patients’ Right to Know Act’s sponsors, would likethe public profiles to include medical malpractice payments, firings, andcriminal convictions going back ten years. In fact, she is going to introducelegislation early next year to change the applicable regulations, and allowinformation for the previous ten years to be posted on the site.Although the Illinois physician background information website is imperfect, itis nonetheless a fantastic starting point. If politicians in states other thanIllinois are really concerned with improving patient care, they would remove theshackles, and allow the public unfettered access to all healthcare providers’background information. The federal government, and all state legislatures,should follow Illinois’ lead by establishing similar websites to inform the publicabout dangerous doctors.Read my original post about the NPDB here:http://commonwealthinjury.com/blog/2011/11/11/louisville-kentucky-medical-malpractice-attorney-the-national-practitioner-databank-should-be-open-to-everyone-no-strings-attached/Also, more information about the NPDB can be found here:http://www.healthjournalism.org/blog/2011/11/agency-re-posts-national-practitioner-data-bank-file-but-restrictions-draw-fire/Read the Chicago Tribune article here:http://www.chicagotribune.com/health/ct-met-doctor-profiles-20111127,0,5169338.storyPosted in Medical Malpractice | Tagged louisville medical malpractice attorney,medical errors, medical malpractice, patients rights | Comments OffThe Libertarian Arguments Against MedicalMalpractice Damages CapsPosted on November 28, 2011 by SethIn a November 23, 2011 Huffington Post editorial, Shirley Svorny, a Professorof Economics at California State University – Northridge, provided anotherreason why the federal government should not impose damages caps inmedical malpractice cases. Professor Svorny concluded that cappingmedical malpractice victims’ ability to recover monetary damages fromnegligent providers “would reduce medical professional liability insurers’financial incentives to reduce practice risk.” Professor Svorny’s editorial isimportant, because she is an adjunct professor at the Cato Institute, alibertarian think tank that typically supports Reublican causes. As mostreaders know, congressional Republicans are the most vocal supporters oflimiting victims’ access to the judicial system, and capping damage awards.According to Professor Svorny, “Much of the protection consumers haveagainst irresponsible and negligent behavior on the part of health careproviders hinges on oversight and incentives created by the medicalprofessional liability insurance industry. A nationwide shift to caps could resultin more cases of negligence and substandard care.” She explains thatinstituting damages caps would actually reward negligent physicians,because they would end up paying the same malpractice premiums as thosephysicians who have never been sued. As it stands now, physicians whohave paid at least one jury verdict or settlement usually pay much highermalpractice insurance premiums. In fact, some doctors and other healthcareproviders who have paid multiple malpractice claims are unable to get practice
  7. 7. privileges at certain institutions. That, in itself, keeps dangerous doctors fromharming other patients.Additionally, Professor Svorny argues that capping medical malpracticedamage awards would result in malpractice insurers discontinuing incentivesthat encourage safe practice habits. For example, some medical liabilityinsurance companies will only provide coverage for doctors with spotlessrecords. Furthermore, almost all insurance companies reduce premiums forthose physicians who regularly attend seminars, or take courses, aimed atenhancing patient safety.Professor Svorny’s editorial is one of the best arguments I have read about thecontentious issue of limiting medical malpractice victims’ rights. She clearlyexplains that our current system is not completely broken, as many peoplewould like you to believe. Moreover, we often hear that the government shouldnot be meddling in our everyday lives by implementing regulations, and thatthe “markets should works themselves out.” The current system does justthat. However, if the current Republican congress were to enact the draconiandamages caps like those already in effect in states such as Texas, it wouldbe doing exactly what it is making everyone afraid of – having the government,and not the markets, make the “best” decision for you.Read Professor Svorny’s entire editorial here:http://www.huffingtonpost.com/shirley-svorny/medical-malpractice-caps_b_1110097.htmlIf you believe that you or a loved one may be a medical malpractice victim,contact Kentucky medical malpractice attorney, Seth Gladstein. You may callSeth and Gladstein Law Firm at 502-855-4177, or toll free 800-991-0474. Youmay also email him at Seth@CommonwealthInjury.com.Posted in Medical Malpractice | Tagged louisville medical malpractice attorney,medical errors, medical malpractice, patients rights | Comments OffHow Georgia’s Peer Review Statute Harms ThePublicPosted on November 21, 2011 by SethSunday’s edition of the Atlanta Journal-Constitution contained a piece aboutthe suicide of a 27 year-old man who had been admitted to a Georgiapsychiatric hospital. The article’s author used that tragic event to illustratehow Georgia’s peer review statute will virtually prevent any public investigationinto the man’s death, and how the statute negatively affects that state’s entiremedical system.In most states, laws provide confidentiality and legal immunity to those whoparticipate in medical peer review. Peer reviews typically occur after there hasbeen an adverse event or patient care error, or when a medical professionalraises concerns about a colleague’s ability to safely and competently practicemedicine. However, Georgia’s peer review law is so restrictive that it preventsthe public from learning all but the most vague investigation results. Forexample, in Georgia, public citizens cannot review investigative reports intosurgical errors, patient suicides, and other preventable medical mistakes.Moreover, even if Georgia state investigators determine that a hospital or otherhealthcare provider violated a particular regulation, what little informationavailable to the public is extremely vague. Additionally, at no time can thepublic learn the specific details of a particular peer review investigation, eventhough the Georgia Department of Community Health has an online databaseof hospital inspections, and hospitals are legally required to report adverseevents.According to the law’s proponents, keeping the results of peer reviewinvestigation secret “promotes ‘candor’ among medical professional that helps. . . correct mistakes.” Not surprisingly, many physicians and otherhealthcare providers also support Georgia’s ironclad peer review law, becauseit shields them from being held accountable for committing mistakes. Forexample, the article quoted Temple Sellers, the Georgia HospitalAssociation’s general counsel, as saying, “People are reluctant to speak out ifthey are going to be blamed.” In a recent statement, the Georgia Departmentof Community Health reiterated that view, and actually posited that beingtightlipped about investigations into poor patient care, as well as limitingnegligent providers’ liability, will “result[] in overall higher patient care.”The article’s author rightly concluded that Georgia’s peer review statute, andthe resulting lack of publicly available information, “leaves medical consumerswith no systematic way of learning whether a particular hospital has a historyof complaints that might signal a pattern of inadequate care.” The secrecysurrounding peer review investigations in Georgia “also prevents taxpayersfrom assessing the quality of state investigations into medical errors.”
  8. 8. Thankfully, courts have repeatedly held that KRS, 311.377, Kentucky’s peerreview statute, does not prevent medical malpractice victims from learning theresults of peer review investigations. See, e.g., Appalachian Reg. HealthCare, Inc. v. Johnson, 862 S.W.2d 868 (Ky. 1993), Sisters of Charity HealthSys. v. Raikes, 984 S.W.2d 464 (Ky. 1998), and Saleba v. Schrand, 300S.W.3d 177 (Ky. 2009). Rather, its now well-established that the applicableKentucky statute’s purpose is to protect “licensed health organizations frombeing sued for good faith actions made in the performance of a peer reviewfunction.” Sisters of Charity, supra, 984 S.W. 2d at 469. One can only hopethat state legislators in Georgia re-think their position, and finally allow thepublic to access information to which it is rightfully entitled. Peer reviewshould not be a type of tort reform, and needlessly shield physicians andhospitals from liability for committing preventable mistakes.Read the entire Atlanta Journal-Constitution article here:http://www.ajc.com/news/hospital-mistakes-kept-secret-1233859.htmlPosted in Medical Malpractice | Tagged louisville medical malpractice attorney,medical errors, medical malpractice, patients rights, peer review | Comments OffOhio Legislature Considering Bill That WouldSeverely Limit Medical Malpractice Victims’ RightsPosted on November 17, 2011 by SethThe Ohio Senate is currently considering a bill, which would severely hampermedical malpractice victims’ ability to recover against negligent emergencymedicine physicians and other healthcare providers.If passed, Ohio SB 129 would shield doctors, physician extenders (such asphysicians’ assistants and nurse practitioners), dentists, optometrists, andnurses from liability, so long as they are providing care for an “emergencymedical condition” as defined by the federal Emergency Medical Treatmentand Active Labor Act (“EMTALA”), or acting as a result of a disaster, and arenot engaged in willful misconduct.EMTALA, 42 U.S.C. § 1395dd, defines an “emergency medical condition” as:(A) a medical condition manifesting itself by acute symptoms of sufficientseverity (including severe pain) such that the absence of immediate medicalattention could reasonably be expected to result in—(i) placing the health of the individual (or, with respect to a pregnantwoman, the health of the woman or her unborn child) in serious jeopardy,(ii) serious impairment to bodily functions, or(iii) serious dysfunction of any bodily organ or part; or(B) with respect to a pregnant woman who is having contractions—(i) that there is inadequate time to effect a safe transfer to anotherhospital before delivery, or(ii) that transfer may pose a threat to the health or safety of the woman orthe unborn child.Civil justice advocates believe that Ohio SB 129 would actually hamper patientsafety, because it would virtually all shield emergency medical providers fromliability, and leave medical malpractice victims without any recourse againstnegligent providers. A recent report quoted Cincinnati medical malpracticeattorney, Donald Moore, as saying, “We’re not going to raise the standard ofmedical care that people in Ohio get by reducing the responsibilities of thedoctors who deliver that care.” Mr. Moore, who has also testified against SB128 in the Ohio Legislature, believes that unnecessarily shielding emergencymedical providers from liability will actually cost taxpayers money, becausemedical malpractice victims “are going to wind up relying on Medicaid,Medicare and Social Security.”Unsurprisingly, Ohio SB 129’s proponents claim that the legislation is not as
  9. 9. draconian as its opponents are claiming. That is because victims may stillrecover if they can prove that an emergency medical provider’s actions werereckless or willful.It is an unfortunate reality that anti-justice advocates believe that limitingpeoples’ access to courts is the best way to improve our nation’s healthcaresystem. The proof, however, has dispelled this myth. As an attorney whohas practiced medical malpractice law for almost ten years, I know firsthandthat, in all but a few scenarios, it is virtually impossible to prove that aphysician or other healthcare provider acted recklessly, or willfully intended toharm a patient. For that reason, I believe that the Ohio legislature shouldreject SB 129, and not needlessly restrict access to our civil justice system.Read Ohio SB 129’s entire text here:http://www.legislature.state.oh.us/BillText129/129_SB_129_I_Y.pdfRead more here: http://www.fox19.com/story/16060671/senate-bill-129-spurs-debate-between-er-doctors-and-thier-patientsPosted in Medical Malpractice | Tagged emergency medicine, louisville medicalmalpractice attorney, medical errors, medical malpractice, patients rights |Comments OffRecent Nursing Home Abuse News From KentuckyAnd Around The CountryPosted on November 16, 2011 by SethAccording to a recent report, a nurse at an Illinois nursing home was chargedwith criminal neglect of an elderly person, after allegedly withholding an 83-year-old resident’s medications.Prosecutors in Madison County, Illinois claim that Trudy Eller, a nurse atManor Court of Maryville, consciously chose to withhold medication fromresident, Joseph Giacaletto, for 45 days earlier this year. Mr. Giacaletto washospitalized earlier this year, but it was not yet been determined whether Ms.Eller’s alleged withholding of medication was the cause.This report is not the first time this year that Manor Court has been in thenews for all the wrong reasons. In August 2011, a former Manor Courtemployee sued the home’s owner for retaliatory discharge, after she wasallegedly terminated after reporting that staff members were neglectingresidents. The former employee claims that she personally witnessed nursinghome employees attempting to conceal an investigation into the escape of apatient who later died, and that nursing home employees failed to help aresident with breathing difficulties.A review of the most recent surveys from the Illinois Department of PublicHealth shows that in March 2011 shows that inspectors cited Manor Court sixtimes for placing residents in immediate jeopardy, or for conduct resulting inactual harm. (For the uninitiated, those citations are the two most severe thatstate inspectors can levy.) In one instance, Manor Court failed to have alicensed pharmacist check the drugs that each resident takes at least once amonth. In another, the home failed to immediately notify a resident’s familyafter the resident was injured.In related news, The Lexington Herald-Leader recently published the results ofthe Centers for Medicare and Medicaid Services’ (“CMS”) review of nursinghomes in Lexington, Kentucky, and surrounding counties. CMS ratescertified nursing homes and assisted-living facilities based upon healthinspections, staffing and quality measures. Facilities receiving five starsprovide “much-above-average” care, whereas those receiving only one starprovide “much-below-average” care. Those facilities with an asterisk havebeen classified as “Special Focus” facilities, due to histories of persistent poorquality of care, and must undergo more frequent inspections.Five starsHomestead Nursing Center, LexingtonTanbark Health Care Center, LexingtonPine Meadows Health Care, LexingtonCambridge Place, LexingtonBourbon Heights Nursing Home, Paris
  10. 10. Telford Terrace, RichmondThe Terrace Nursing & Rehabilitation Center, BereaFour starsCardinal Hill Rehab Unit at Samaritan Hospital, LexingtonSayre Christian Village Nursing Home, LexingtonClark Regional Medical Center, WinchesterThree starsRose Manor Health Care, LexingtonKenwood Health and Rehabilitation Center, RichmondSignature Healthcare of Georgetown, GeorgetownTwo starsMayfair Manor, LexingtonNorthpoint/Lexington Healthcare Center, LexingtonRichmond Place Rehabilitation and Health Center, LexingtonDover Manor, GeorgetownBluegrass Care & Rehabilitation Center, Lexington*Royal Manor, NicholasvilleOne starFountain Circle Health and Rehabilitation, Winchester*Lexington Country Place, LexingtonBerea Health Care Center, BereaMadison Health & Rehabilitation Center, RichmondIf you suspect that you or a loved one has suffered from any form of nursinghome malpractice, neglect, or abuse, please contact Kentucky nursing homeabuse attorney, Seth Gladstein, for a free consultation. A Louisville, Kentuckyattorney, Seth has the experience to help properly and thoroughly investigatea nursing home negligence, malpractice, or abuse claim, and determinewhether you may possibly recover monetary damages. By calling, you canhelp make nursing home facilities safer for you, your loved ones, and otherresidents. Seth can be reached at (502) 855-4177, or toll-free at 800-991-0474.Read more here:http://www.stltoday.com/news/local/crime-and-courts/nurse-accused-of-withholding-medication-from-resident-of-maryville-nursing/article_495cb510-0fe3-11e1-8cf4-001a4bcf6878.htmlhttp://www.madisonrecord.com/news/237958-maryville-manor-worker-claims-retaliatory-dischargehttp://www.skillednursingfacilities.org/directory/il/maryville/manor-court-of-maryville/145728/
  11. 11. ← Older postshttp://www.kentucky.com/2011/11/13/1957903/nursing-home-rankings-for-fayette.html#storylink=misearch#ixzz1duMXf1NiPosted in Medical Malpractice, Nursing Home Abuse | Tagged louisville medicalmalpractice attorney, medical malpractice, nursing home abuse, patients rights |Comments OffFollow us on:This isan advertisementGladstein Law Firm, PLLC312 South 4th Street #600 | Louisville, KY 40202Office: 502-855-4177 | Toll free: 1-800-991-0474 | Cell: 502-230-1078 | Fax: 502-587-2007 | Map© 2013 Gladstein Law Firm, PLLC | Site Map | Designed by Wy atts Torch

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