December 4th, 2007

Dennis Quaid Sues Baxter Healthcare Over Heparin Label Mixup for Twins

Actor Dennis Quaid has brought suit against Baxter Healthcare. Last week I wrote of the medical malpractice that had been committed against his hospitalized newborn twins and the labelling issues, when an adult dose of the blood thinner Heparin was used instead of an infant dose. There was a 1,000x difference in the dosages. The labels are similar, the adult dose was apparently stored in the pediatric area, and someone didn’t look close enough at the vials.

Now, according to TMZ, Quaid has sued. But only sued Baxter, and not the hospital. The Complaint is here: Quaid-Complaint.pdf. There are two causes of action: One for strict liability and one for negligence.

A few thoughts on this:

Quaid’s kids presumably don’t need the money from any suit, so it isn’t “just about the money.” This makes life much more miserable for Baxter;
The twins, while critical for awhile, are apparently OK now. So it really isn’t about the money;
By not also suing the hospital where it happened (Cedars-Sinai in Los Angeles), the defense has the “empty chair” defense easily at hand. That is, you point the finger at any party that is not in the courtroom. (That’s why so many people often get sued after an incident. To make sure the empty chair defense isn’t available to defense counsel.)
The case was brought in state court in Illinois, not out in Los Angeles. Illinois is the location of Baxter’s corporate office. Since California has tort “reform” that provides immunities for many defendants (or at least they do in med mal) this might be the rationale for the choice of court. (I’d like to see what California attorneys have to say on that.)

So why wasn’t the hospital sued? My guess is that it’s because they apologized. While many doctors/hospitals still cover-up mistakes (see: Medical Malpractice and The White Coat of Silence) others have come to realize that the simple human acknowledgement of error goes a long way. On the subject of apologies, I wrote back on April 11:

I’ve always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Now, from an AP story, we find that the hospital had acknowledged the error and apologized. But what did Baxter do? Well, it seems they issued a warning letter to healthcare workers earlier this year. But starkly missing appears to be the human elements of accountability, contrition and acknowledged wrongdoing. And I’m guessing that the Quaid family will start pushing till they get that. Publicly. Because that’s one of the best ways to see that it doesn’t happen to someone else’s kids.

(hat tip: TortsProf)

December 3rd, 2007

Medical Malpractice and the White Coat of Silence

A study released today shows that almost half the nation’s doctors fail to report unethical, incompetent or dangerous colleagues. According to the study by Massachusetts General Hospital and Harvard Medical School, 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.

Some of the data from the survey:

Up to 96 percent of those surveyed said they should report all instances of significant incompetence or medical errors to the hospital clinic or to authorities. The exception was among cardiologists and surgeons, with just about 45 percent agreeing.

Why cardiologists and surgeons are more prone to cover-ups isn’t something I know, but I’m certainly curious about the answer.

There was also a disconnect among doctors about what they felt should be done, and what they actually do:

While 93 percent of doctors said they should provide care regardless of a patient’s ability to pay, only 69 percent actually accepted uninsured patients who cannot pay.

In 2000, the U.S. Institute of Medicine reported that up to 98,000 people die every year because of medical errors in hospitals alone.

And so, while some states have been doing what they can to encourage apologies for errors (see: More Doctors Encouraged To Say “I’m Sorry”), there are still many doctors that feel burying the mistakes is better.

Links to this post:

blog stroll
we’re overdue for a blogstroll. what’s going on in the civil justice blogosphere? on american constitutional society blog, a wrap up on new and impending supreme court oral arguments and decisions, including the medtronic case we’ve …

posted by Kia Franklin @ December 04, 2007 2:40 PM

November 29th, 2007

New York Doctor Caught Reusing Syringes in Multi-Dose Vials

Out on Long Island, the name Harvey Finkelstein is now widely known. The anesthesiologist has been the subject of several articles this past week concerning a three-year investigation that revealed he had potentially exposed hundreds of patients to blood-borne diseases by routinely reusing syringes in multi-dose vials. This exposed patients to Hepatitis and HIV/AIDS.

While Finkelstein used only one syringe per person, he would stick the syringe into a multi-dose vial that would also be used by others, thereby contaminating the remainder of the vial.

Aside from the conduct of the doctor, this story has a kicker: The state’s investigators waited three years to let patients know, sending out 628 letter just this past week. Why is that significant? Two reasons, one medical and one legal.

First, and clearly of paramount importance, if someone was infected they didn’t get prompt treatment. Second, because the statute of limitations in medical malpractice in New York is 2 1/2 years, those that may have been infected not only didn’t learn about it in a timely manner, but may not be able to institute legal action to redress their grievances. In New York, the statute of limitations is not governed by when the negligence was discovered, but by when it happened or by end of the continuing treatment by that physician.

In today’s news, Newsday writes of the secret procedures in New York that keep disciplinary issues as far from the public eye as possible. New York, it seems is one of only five states out of 42 that were surveyd last year in which no parts of the proceedings were public. From the article:

It is among a handful of states that conducts the entire probe in private and withholds a doctor’s name unless the complaint is upheld. And even after an investigation is concluded, doctors are not required to notify patients if they are practicing under sanction. What information is available is found on a state Web site that critics argue few people know about.
…

The entry on the Office of Professional Medical Conduct Web site about Finkelstein is this: “Nondisciplinary order of conditions issued pursuant to New York State Public Health Law Section 230. for three years including conditions relating to infection control.”

Well, that description tells you a lot, doesn’t it?

Finkelstein, by the way, has had 10 malpractice settlements. That makes him one of 127 of New York’s 70,000 physicians with a similar history.

Dennis Quaid’s Newborn Twins Victimized by Medical Malpractice

Medical malpractice can happen to anyone. And last week while we celebrated Thanksgiving, actor Dennis Quaid was running back and forth to the hospital because it happened to his two-week old twins when they received a massive overdose of a drug. And it happened at the well-regarded Cedars-Sinai Hospital in Los Angeles.

Now the kids will hopefully be OK despite this, as the overdose was realized and an antidote given. But it’s a good lesson on how to make improvements in the mechanic of how hospitals work and how drug companies package their products. If only people would listen.

The kids had IV lines flushed with Heparin, a blood thinner. They were supposed to be flushed with an infant’s dose of 10 units/ml. But they got an adult’s dose of 10,000u/ml instead. So they received a 1,000x overdose. Oops.

And worse yet, the hospital had previously been warned by the FDA of the potential for mix ups between these two doses.

Here are the questions for the hospital and the drug manufacturer:

What were the adult strength drugs doing in the neonatal unit?
Why do the bottles look the same?
Why weren’t there precautions in place to separate out different dosages?
Why were FDA warnings ignored?

At EverythingHealth (via Grand Rounds at Prudence), Dr. Toni Brayer writes:

The way to prevent these errors and “near-misses” is to put processes into place in health care like we do in aviation safety. Make it hard to do the wrong thing. Labels should have “red alerts” to show different strengths. The background colors on the bottles should be different and the font size needs to be increased. Look alike drug names should be differentiated by using TALL LETTERS. (glipIZIDE vs. glyBURIDE). The bottles should look completely different so it is obvious to every care giver…whether stocking a med cart or administering a medication.

If you think this is a rare occurrence, think again: Each year there are over 1.5 million medication errors in the United States, and as many as 7,000 people will die from them. And our children are the most likely victims (see: Children Are Most Likely Victims of Surgical Medication Errors).

But sometimes, it takes celebrity misfortune to bring home the reality of the problem.

For more:

Medical errors are not always doctors’ fault (Malpractice via Kevin, M.D.)
Heparin Overdose in Three Infants Raises Safety Questions (MedPage Today)
Medication Errors (FDA)
Dennis Quaid Twins Update: Hospital Was Warned About Heparin Dangers (Babble)

(Eric Turkewitz is a personal injury attorney in New York)
——————————————————————————-
Update (12/4/07): Dennis Quaid Sues Baxter Healthcare Over Heparin Label Mixup for Twins

November 21st, 2007

Why Medical Malpractice Panels Fail

Over at Point of Law, Walter Olson points to a story on medical malpractice panels in New Hampshire and Maine. So I wanted to share New York’s experience with the panels before they were disbanded in the mid-1980s shortly after I started practicing law. I did a few of these before they hit the trash heap.

These panels included a judge, an attorney experienced in handling medical malpractice cases, and a doctor from each speciality that was sued. If there was a unanimous finding, the finding would go to the jury.

The first, and most significant, problem was finding doctors to sit on the panels, which is what caused years of delay to an already protracted litigation system.

The second problem was that, unlike jurors, there was no way to question panelists regarding any biases they might have, the way a juror might be questioned.

The third problem was that that no live witnesses appeared before the panels and there was no cross-examination. Submissions were made confidentially, and a short hearing was held that might last an hour at most. This format made it it impossible to resolve disputed issues of fact.

The fourth problem arose when, if a unanimous panel finding went to the jury, the losing side would invariably subpoena the doctor that appeared, and then cross-examine the physician on the flaws in the hearing that took place. Essentially, that the panel never saw a single witness and was therefore unable to resolve disputed factual issues. (This, in turn, made it even less likely that doctors would want to sit on panels.)

The end effect was years of delay, more expense, and more complicated trials.

It was, in essence, a resounding failure.

Links to this post:

How a personal injury lawyer views the medical malpractice system
How a personal injury lawyer views the medical malpractice system. Personal injury lawyer Eric Turkewitz responds to my recent USA Today piece on fixing the medical malpractice system. by Eric Turkewitz. In a USA Today op-ed, …

posted by Kevin @ November 18, 2009 2:00 PM

medical liability screening panels
two years ago new hampshire adopted such a system, following the lead of neighboring maine. doctors in both states are strongly supportive, but critics among lawyers say the panels are slow and costly. the manchester union-leader …

posted by Walter Olson @ November 21, 2007 12:18 AM