Articles Posted in Medical Negligence

Medical Malpractice reform has been receiving much attention recently with the introduction of H.R. 5, which seeks to impose national tort reforms measures, including the imposition of caps on non-economic damages as well as potentially taking away the right to trial by jury in some medical malpractice cases.

As New Mexico medical malpractice lawyers, we believe such measures often fail to address the real issue – patients safety. Study after study show that patients suffer significant harm and costs in hospitals due to adverse reactions from dangerous drugs, infections, surgical errors and unnecessary procedures. Rather than limiting victims’ access to justice, more focus must be placed on improving patient safety and ensuring that those responsible for causing harm be held accountable.

Recent examples include the DePuy Hip, now shown to leak dangerous chemicals into the bodies of recipients. Often, the only way to get companies to remove dangerous products from the marketplace and be compensated for the harm caused is through litigation. Capping our damages or limiting access to the court room will remove an important incentive to improving the safety of our health care.
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In direct contradiction to claims that medical malpractice caps are necessary on pain and suffering in order to reduce the costs of doctors practicing “defensive medicine, ” a recent study released in the policy journal Health Affairs found that many of the popular proposals suggested for reducing medical malpractice are unrelated to the practice of defensive medicine. In fact, capping damages for “pain and suffering” would do little to reduce defensive medicine spending.

The study found that although defensive medicine spending is less than 2 percent of annual health care spending, the author stated “we’re spending a large amount of money every year on a system that’s deeply flawed … Many injured patients never get compensated at all.” A second study in the issue noted found that any savings to be gleaned from tort reform would be low.

Capping damages for pain and suffering was not associated with a significant difference in the physicians’ perceived risk of malpractice claims.

With medical errors occurring in nearly 10% of all inpatient surgeries, capping damages only serves to further harm those injured by medical negligence.

As New Mexico attorneys concerned about medical malpractice, we believe more emphasis should be placed on reducing medical errors, such as missed diagnosis, birth injuries, and surgical errors. As this recent study illustrates, misplaced arguments about “defensive spending” do little to improve what matters most – patient safety.
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Last week the Department of Health and Human Services announced millions of dollars in grants to states to address medical malpractice. These grants will go to state health departments, universities and medical centers for demonstration projects designed to reduce injuries, decrease the numbers of lawsuits, improve doctor/patient communication and lower liability insurance premiums.

These funds were approved after recent studies show that despite calls of a lawsuit crisis and insurance crisis – the real issue is way too much medical malpractice exists causing catastrophic injuries. Preventable medical negligence may occur because of untrained/unsupervised residents making prescription errors. It may occur when a small handful of doctors act negligently and states fail to adequately discipline them. Negligence may occur when communication fails between hospital staff.

Medical negligence does not occur as the result of lawyers bringing lawsuits.

Much of the recently approved grant money will go toward programs designed to improve patient safety such as improving communication. However, monies will also go towards programs focused on early disclosure and compensation. Although prompt attention to malpractice claims can be beneficial, models emphasizing early disclosure and settlement of cases often fail to address the root cause of malpractice and provide inadequate compensation to the victims of gross negligence.
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Preventable medical errors are the sixth biggest killer in America and account for an estimated 98,000 deaths in the United States each year. A new study has found that the number of medical mistakes per month is fairly steady – except for in July when the error rate goes up nearly 10 percent.

This increase in medical error rate also corresponds to the influx of newly graduated doctors who are admitted to work in teaching hospitals. The study finds ‘the great the number of teaching hospitals, the greater the July Effect for ..[fatal] medication errors.” Much anecdotal evidence supports the so-called “July Effect, ” but this is the first study to provide concrete results. One of the disturbing conclusions found significantly higher numbers of deaths due to medication error, even when resident’s hours were decreased.

As New Mexico medical malpractice attorneys, we believe medical errors by should never occur. Now evidence shows that July – when new doctors receive training by working on us – is an even more frightening and dangerous time to head to the hospital. Hospitals must do more to ensure our safety.
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According to, Albuquerque News, dozens – if not thousands – of patients could be at risk for contracting disease. As part of a physician assistants program, students from the University of New Mexico School of Medicine provided free blood glucose tests to attendees of the American Indian Week Pueblo Days. Over 1600 individuals from around the world were in attendance. KOBTV4 reports that it’s likely those who conducted the tests were untrained and used the wrong type of device to do the tests, consistently using the same needle over and over.

Because no records were kept, it is unclear just how many people were affected by this medical mistake. As a result of the failure to change the needles on the devices, those who received the test may be at risk for Hepatitis B, Hepatitis C and even HIV.

Studies show that preventable medical errors kill as four times as many people as the lack of health insurance. The eye opening Hearst Investigation, “Dead by Mistake” found that close to 200,000 people per year die from medical errors and infections in the United States. Medical malpractice is a national epidemic, one that affect patients of every state, age, and income level, with nearly 2 million Americans dying needlessly of preventable medical mistakes. It’s not just the untrained who commit these errors, it happens at prestigious hospitals, at clinics, at doctors offices.
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A recent New York Times article posed the following question:

Who should be accountable when a company sells a flawed product that can injure or kill patients? Is it the company or the people who run it?

We believe it’s both.

We have seen hundreds of individuals throughout New Mexico who have had surgery, only to sustain injuries as the result of a physician implanting a defective product such as the Zimmer Durom Cup. Many parties may be responsible in such cases – including the company, the executives running the company, and even the physicians.

However, those people who are not responsible and must be compensated are the innocent patients who seek medical attention to improve their condition, only to sustain further injury.

In 2006, the Zimmer Durom Cup was introduced and intended to be an improvement over previous hip replacement products. However, rather than being an improvement, it caused significant pain and discomfort, as well as a loosening of the hip implants, requiring additional surgeries.

The use of defective Zimmer Durom Cups in hip replacement surgeries has led to dozens of lawsuits cropping up all around the country. Currently, at least 51 product liability lawsuits in 10 different states are currently pending against the Zimmer Durum Cup, a defective part that implanted during hip replacement surgery.

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On January 22, an Oregon jury awarded a chondrolysis patient nearly $5.5 million in compensation. According New York Times, more than 150 such lawsuits are currently making their way through the court system.

Chondrolysis is a rare ailment in which joint cartilage dies, resulting in bone grinding on bone. Many times this surgery affects athletes, ending their athletic careers and leaving them with a lifetime of pain and disability.

Litigation against pain pump manufacturers, pharmaceutical companies and physicians using the pumps has exploded recently as more and more patients are discovering injuries attributable to the use of pain pumps during surgery. The pumps deliver controlled doses of pain medication directly to the surgical site, and often eliminate the need for post-surgical pain medication.

Findings suggest using these pain pumps in surgery causes shoulder joint cartilage to break down, resulting in pain and loss of mobility.

In November, the FDA issued a bulletin stating that it had never approved the use of shoulder pain pumps directly with joints. Doctors counter this, arguing that labels on pain pumps were vague and labels did not specifically warn against use of pain pumps in the joints.
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On Monday, the U.S. Senate began debating the historical health care plan designed to reform the nation’s health care system by changing the way insurance companies do business. Senator Henry Reid’s (D-Nev) bill will provide much needed reform and assistance to the millions of Americans who pay exorbitant fees for health care coverage, are denied coverage or who receive inadequate health care coverage.

But critics – including medical malpractice defense attorneys, insurance companies and hospitals – seek to prevent passage of this historic measure by arguing that health reform must also include “tort reform.”

These naysayers argue that in order to adequately address health care reform, we must also cap damages in medical malpractice actions (which would limit the amount awarded to the catastrophically injured as a result of physician and hospital negligence.)

However, studies have shown that lowest states in health care costs.

Limiting the amount those who have been catastrophically injured may recover due to physician malpractice, human error and hospital negligence shifts the financial burden from those who caused the injury to those suffering the consequences. Those individuals become victims twice – first as a result of medical negligence and second as a result of the court system denying their right to adequate compensation.

Further, tort reformers’ claims that physicians’ fear of lawsuits – so called “defensive medicine”- has contributed to the overall cost of health care have been greatly exaggerated. Studies show that the costs of physicians practicing “defensive medicine” have little if any impact on the overall cost of healthcare.
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