Apparently, surgery that occurs on the wrong patient or the wrong side happens more often than what is reported in medical literature.  According to the Archives of Surgery, the general media reports more about wrong side surgery than what is published in medical literature.

The article published in the Archives of Surgery analyzed numerous databases that showed that these cases occur across all specialties, with high numbers in orthopedic and dental surgery.  The analysis of wrong side/wrong site, wrong procedure and wrong patient cases suggested that a common factor was recurrent systemic failures.  Researchers concluded, based on their findings, that about 1300 to 2700 of these cases occur every year in the United States.

Reporting wrong site and other similar cases is virtually nonexistent, making reports in the press more common than reports in medical literature.  The article attributes this fact to “shame.” The conclusion made by the researchers states that these cases “are more common than health care providers and patients appreciate.”

The article suggests that these cases are preventable, which seems pretty obvious.  Some of the recommendations to prevent wrong side/wrong site, wrong procedure and wrong patient cases include using new and innovative technologies, reporting the cases and learning safety initiatives.

To learn more about medical malpractice, order Ben Glass’s book, Most Medical Malpractice Victims Never Recover a Dime.

According to an article that appeared in the Summer 2007 issue of Regulation, studies have shown that there is a direct correlation between the likelihood of a settlement payment and the strength of a patient’s claim.  Over the previous 30 years, there have been more than a dozen studies looking into the association between the strength of a plaintiff’s malpractice claim and settlements.

All of the studies, except one conducted by Harvard, have found a link between settlements and strong cases.  Researchers discovered that only about 10 to 20 percent of weak cases ended with a settlement payment.  According to the article, “The Fairness of Malpractice Settlements,” those figures “may overstate the fraction of weak cases that currently result in settlements because settlement of weak cases has reportedly declined since enactment of the federal law requiring that all settlement payments be reported on a national database.”  Studies have also found that when weak cases do end up reaching settlements, the amount is usually significantly discounted.

Cases that are considered a “toss-up” have a settlement rate of 40 to 65 percent.  Toss-up cases are also heavily discounted due to the uncertainty of the patient’s claim.

Claims that have strong evidence are 85 to 90 percent likely to end up settling.  The average payment is also a lot larger for strong cases than for those with weaker evidence.

For more information on medical malpractice claims, order your copy of Ben Glass’s book, Most Medical Malpractice Victims Never Recover a Dime.

Not long ago, the Washington State Supreme Court made a ruling that basically found one of its latest tort reform laws to be unconstitutional.

This law made plaintiffs submit a “Certificate of Merit” with any lawsuit that alleged medical malpractice.  The “Certificate of Merit” document had to be signed by a medical professional who possessed expertise in the defendant’s field.  When a doctor signs the Certificate, he or she is in essence saying that the feeling is that the standard of care was violated in some way.  In a medical malpractice case, it has to be shown that the standard of care was violated and that this violation was the cause of the plaintiff’s injury.

According to the court’s opinion, mandating that plaintiffs have to produce evidence before discovery, which is the time period that both sides trade documents and information, put an undue burden on the plaintiffs.  Also, the court decided that this requirement passed by the legislation interfered too much with the judicial branch and access to the courts, making it unconstitutional.

There is a lot of talk by politicians regarding tort reform.  It is crucial to understand that when they are talking about tort reform, they are basically talking about removing patients’ rights.

The Circuit Court for Loudoun County permitted a medical malpractice lawsuit to move forward against David Berman M.D. and Dulles Cosmetic Surgery and Skin Care Center.  According to the suit, the defendant had been allegedly injecting patients with a product that was not licensed by the U.S. Food and Drug Administration (FDA) for human use, which happened years ago.

Judge James Chamblen had the opinion that in each case the plaintiff was a patient of Dr. Berman.  The patients thought they were being injected with Botox Cosmetic, but in February 2004, the doctor had used a Botulinum Toxin Type A product that was sold and distributed by Toxin Research International, Inc. This product had not been approved or licensed by the FDA.  In fact, the label on the vials used by Dr. Berman stated “for research purposes only – not for human use.”

Dr. Berman did not tell the patients that he used this product in lieu of Botox.  According to plaintiffs, the doctor gave them the injections and represented that he was using Botox.  He allegedly never disclosed that he was using a non-licensed and cheaper product.

The defendant had attempted to have the case dismissed because the actions occurred more than two years prior to the case being filed.  However, the case was not dismissed.

The opinion read, “I think that the allegations of each complaint show that Dr. Berman’s fraud, concealment and misrepresentation prevented each plaintiff from discovering what he had actually injected into them until March and May 2007.  Each filed suit within one year thereafter.”

Radiology Associates of Richmond, Inc. allegedly misread studies for years, but this radiology group will not be held responsible because the statute of limitations has expired.  A Richmond Circuit Court Judge ruled that Radiology Associates could not be sued.

In the case against Radiology Associates, a patient claimed that the defendants were negligent when they performed and interpreted numerous radiological studies from December 2002 to October 2005.  The patient claims that during this time, she showed symptoms that were consistent with a brain tumor located in the trigeminal nerve.

The Richmond Circuit Court did not accept the argument that the “continuous treatment rule” applies to discrete radiologic studies.  Based on the court’s ruling, there was basically no “assumption of ongoing treatment” in the patient’s case.

Although the court probably correctly interpreted the Virginia law, this law is outdated and antiquated.  It is unfortunate that this patient, who was suffering from a tumor during the entire time she relied on the radiologist’s reports, cannot pursue justice.  This type of case should not happen in this day and age.

A federal jury has convicted Dr. Ronald Poulin, an oncologist, of 28 counts of health care fraud arising out of allegations that he improperly billed Medicare and Tricare $1.2 million.

The doctor faces up to 20 years in prison. Some of the claims against him involved charging for patient office visits that never occurred and billing for greater quantities of chemotherapy medications than it actually administered to his sick patients. He also was accused of and found guilty of altering medical records to cover up his crime.

For now he remains licensed by the Virginia Board of medicine.

There are many lessons that you can learn from one past Fairfax medical malpractice case involving a cancer patient.

A 45-year-old man was treated by a non-board certified internist for his complaints of rectal bleeding for three years.  The internist had conducted a flexible sigmoidoscopy and was certain that the bleeding was from hemorrhoids.  The patient ended up having cancer and the three year delay prohibited him from having the pre-cancerous lesion removed through a simple operation.  Instead, the man had to have major surgery where part of his rectum was removed and was subjected to radiation therapy and almost a year of chemotherapy.

Many lessons can be taken from this situation.  First, you should always see a board certified physician.  If you are experiencing rectal bleeding, you need to get a colonoscopy, as this symptom can indicate cancer. Colon and rectal cancer are slow growing, so the faster you start treating it, the better the outcome.

For information regarding medical malpractice, read Ben Glass’s book, Why Most Malpractice Victims Never Recover a Dime.

When a doctor receives a formal reprimand by the medical board, it goes on his or her permanent record.  It will also appear on the doctor’s public profile on the Virginia Board of Medicine’s website.  Although there is no monetary penalty from a reprimand, you can see why a doctor will want to avoid it.

Last November, two doctors who had gained immunity from a lawsuit involving catastrophic birth injuries were administratively punished by the Virginia Board of Medicine.  This situation was the first in 20 years.

Dr. Evelyn Anna Ruelaz of Fairfax County and Dr. Regina Burton of Woodbridge, both received formal reprimands for births that led to lifelong personal injuries to infants during the delivery.  Lee Ann Hershberger told the medical board panel that her son will never be able to care for himself.  Her son’s heart rate slowed and oxygen was shut off to him in utero while she was left unattended for long periods of time by Ruelaz.

These penalties by the medical board showed that birth injury cases were being more heavily scrutinized.  In 2003, changes were made that lowered the threshold for punishment in these types of cases.  Two hundred and nine sanctions were issued in 2006 by the Virginia Board of Medicine among the 34,813 individuals who hold Virginia medical licenses.  Until the two cases in 2008, there had never been reprimands for birth-related cases.

A children’s hospital admitted that it made a mistake after a 15-year-old autistic boy was overdosed.  Michael Blankenship was prescribed a fetanyl patch after his dental work at the hospital.  Supposedly this medication is usually only given for more serious cases, such as cancer.

Michael died at home in his bed and the medical examiner determined that his cause of death was an accidental overdose.  Seattle Children’s Hospital admitted that it made an error and apologized.  The hospital also said that it has changed its procedures.

Michael’s mother, Tammy Jarbo-Blankenship, had a valid point when she said that Michael shouldn’t have had to die for the hospital to put safeguards in place to make sure this type of situation doesn’t happen.

The tragic case of Michael Blankenship makes one think about all the debate over tort reform. Basically, national tort reform would tell the Blankenship family “tough luck.”    People have made the argument about the government imposing a “cap” on medical malpractice damages.  Should the government decide how much Michael’s life was worth without knowing the details about this young boy or his family?  It should be left up to a jury to make this decision.

There are risks associated with having surgery, which are usually discussed in depth prior to the procedure.  However, it is difficult to plan for every possible scenario that can lead to serious injuries or death.

Last September, a woman was killed after she sustained severe burns from a flash fire during surgery.  Although flash fires are a rare occurrence in operating rooms, it does happen.

Sixty-five-year-old Janice McCall died at Vanderbilt University Medical Center in Nashville, Tennessee, six days after she was burned on an operating table at Heartland Regional Medical Center in Marion, Illinois.  Her death was the result of complications from thermal burns and was classified as accidental.

Although the hospital wouldn’t say how the fire started, it is known that the accidental flash fire occurred in one of the hospital’s operating rooms, injuring McCall before it was extinguished.

Surgical flash fires have been known to happen and are usually sparked by electric surgical tools when oxygen builds up under surgical drapes.  The rate of occurrence is about 550 to 600 times a year.  It is estimated that about one or two people die each year from these fires.

Most likely there will be a medical malpractice case to follow McCall’s death.  It is safe to assume that “lighting a patient on fire” does not follow the standard of care.