A California woman has died after her nurse refused to perform CPR, the Los Angeles Times reports this morning.  The nurse insists she was simply following policy of the Glenwood Gardens senior living facility in Bakersfield, where she cared for patients.

The woman is reported to be 87-year-old Lorraine Bayless. She did not have a do-not-resuscitate order. Her nurse called 911 when Ms. Bayless went unconscious and began having difficulty breathing during a meal.  911 dispatcher Tracey Halvorson pleaded with the nurse to perform CPR, but she repeatedly refused.  The nurse cited a hospital policy to call 911 in the event of a medical emergency and wait until medical personnel arrives.  The nurse also refused to hand the telephone to someone else in the dining area, for the dispatcher to talk them through CPR.

One can only imagine why a policy like this would exist.  Particularly in a residential care facility where patients are under the control of, and isolated by the facility and its staff.  Fear of liability?  Is that what causes one human being to refuse life-saving help to another?  If avoidance of liability was the intent, I believe Glenwood Gardens has made a critical error.  Residential and senior care policies like this need to be exposed and changed.

The full LA Times story is here.

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A study compiled by the Commonwealth Fund reports that the U.S. Government could save $2 trillion in healthcare spending over the next decade, if it takes measures to pin spending to economic growth.

Maybe such a course could help resolve this disconnect, as reported by the Huffington Post:

The United States has the world’s most expensive healthcare  system, which government forecasters say will cost more than  $9,200 this year for every man, woman and child. Spending growth  has slowed in recent years, but costs continue to outpace  inflation and restrain overall economic growth.

Despite the nation’s massive healthcare bill, research shows  that Americans die earlier and experience higher rates of  disease than people in other countries – regardless of age,  education, income, healthy behaviors or whether they have health  insurance.

See the full story here.

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CBS News reports that a study released today by The Leapfrog Group grades 2,618 hospitals in 49 states on safety.  Massachusetts and Maine top the list with the highest percentages of “A” grade hospitals (83 and 80 percent).  New Mexico reportedly places last with only 7 percent “A” hospitals.

The study recognizes an imminent need for focus on hospital safety.  A statement released by The Leapfrog Group notes that “[a]t least 180,000 people are killed every year from errors, accidents, injuries, and infections in American hospitals.”

The study is not without its surprises and controversy.  CBS reports that the renowned Ronald Regan UCLA Medical Center is one of only 25 hospitals that received an F grade.  CBS reports that the hospital disputes the grade and the fairness of the scoring system, and claims one patient death in 2010 pushed its grade down from a C to an F.  The Leapfrog Group’s president and CEO, Leah Binder, is reported to stand behind the scoring system and UCLA’s grade.

If you’re curious how your hospital scored, there’s an app for that:  The study’s data can be accessed on your mobile device or over the web at www.hospitalsafetyscore.org.  A link to download the app (free) is available on the website.

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On August 23, 2012, the California Supreme Court overturned an 80-year-old rule that worked to keep victims from recovering full compensation for their injuries.  The so-called “release rule” released defendants in multi-defendant lawsuits from having to pay jury verdicts, if a court ruled a prior settlement with any one defendant was not made in “good faith,” i.e., was too low.

Aidan’s Injury

Leung v. Verdugo Hills Hospital concerned a newborn, Aidan, who developed Kernicterus — a form of brain damage caused by excessive jaundice — while under the care of Verdugo Hills Hospital and his pediatrician.  The hospital downplayed known risks about the condition, providing outdated materials and advice to the parents.  The doctor allegedly ignored risk factors and warning signs of the disease.  As a result, a treatable disease progression resulted in profound, lifelong disability.

Because of the condition, Aidan, now 9 years old, has normal intelligence but no muscle control.  According to the child’s attorney, quoted in the San Diego Daily Transcript (SDDT):  “He can’t walk, he can’t talk, he can’t pick up a pencil, throw a ball.”   “It was 100 percent preventable.”

Unjust Result

Aidan’s suit was settled with the pediatrician for $1 million, the limits of his malpractice insurance policy, prior to trial.  A settlement demand of $2.1 million to the hospital was rejected.  At trial, a jury found the hospital 40% liable for Aidan’s injuries, and total economic damages of approximately $15 million (medical costs, not pain and suffering).  But the court found that the settlement with the pediatrician was too low — in “bad faith” — given the pediatrician’s likely large proportionate liability for Aidan’s damages.

Under the release rule, the hospital would have been released from paying any share at all of Aidan’s economic damages because of the court’s finding.  The rule provided that if a prior settlement with any defendant was held in “bad faith” — not in line with the defendant’s predicted proportionate liability – the other defendants were released entirely from paying any damages shared with that defendant.  This essentially erased the jury’s verdict and left the injured plaintiff with no compensation for his medical costs, save for the previous settlement amount.

“Release Rule” Overturned

Overturning eight decades of common law precedent, the state Supreme Court rejected the release rule in Leung.  The court refused to release the hospital from paying any portion of Aidan’s $15 million in medical costs simply because the doctor had agreed to a favorable settlement before trial.  The court also rejected the hospital’s alternative proposal that it should only be held responsible for a proportionate share of Aidan’s damages — 40% of the $15 million.  Instead, the court restored the pro-consumer and pro-victim intent of California’s tradition of joint and several liability.

Because the hospital rejected the pre-trial settlement demand of $2.1 million, it became responsible for paying the full damage amount of $15 million, minus the $1 million paid by the doctor.  If the hospital wishes to pursue the doctor for reimbursement of his share of the damages, it may now do so in a separate lawsuit.  But that burden is not saddled upon the injured plaintiff.

“It’s a very important decision in terms of abolishing an outdated and … unjust rule,” commented Loyola Law School professor John T. Nockleby, as reported by SDDT.  This decision should encourage settlements and get money for medical care in the hands of the injured more quickly.  It takes the power out of an archaic procedural rule and puts it back in the hands of juries.  Leung is a long-awaited victory for California patients and consumers.

For more information, or if you or a loved one have been injured in California, please contact the experienced lawyers at Mulligan, Banham & Findley.  Our telephone number is 619-238-8700.

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On July 31, 2012, the Missouri Supreme Court struck down a $350,000 cap on noneconomic damages (pain and suffering) in medical malpractice lawsuits.  The court held that the cap on damages violated a person’s constitutional right to trial by jury under the state constitution.  The complete text of the opinion can be found here.

Missouri now joins six other states that have held damage caps in medical malpractice actions unconstitutionally take a victim’s compensation of the hands of the jury.  Other states include Alabama, Georgia, Illinois, New Hampshire, Oregon and Washington.  California and six other states have challenges pending.  See an updated list here.

For more information, or if you or a loved one have been injured in California, please contact the experienced lawyers at Mulligan, Banham & Findley.  Our telephone number is 619-238-8700.

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Whenever someone has been injured by a product or by a service provider who has drawn them in via advertising of any kind, but particularly web advertising, further investigation is warranted.   There is a significant increase in paid, faked reviews on-line on various product and service review sites -known as “Astroturfing“, a take-off on grassroots campaigns, or fake grass.  These phony endorsements can expose companies to legal liability and monetary sanctions.

In July 2009, a plastic surgery company, Lifestyle Lift, reached a settlement with the New York Attorney General’s office with regard to reviews which were purporting to be submitted by very happy clients.  As it turned out, these were not actually customers, but employees of the company itself.  The Attorney General’s office released part of an internal email in which Lifestyle Lift gave the following directive to its employees:  “Friday is going to be a slow day – I need you to devote the day to doing more postings on the web as a satisfied client.”  Lifestyle Lift ended up agreeing to pay $300,000 in penalties and costs.  And, now it must live with the negative image it has created for itself in any Google search.

The Federal Trade Commission has also pursued charges for deceptive advertising of a similar nature against the California company, Reverb Communications.  The FTC alleged that Reverb had its own paid employees posting positive reviews as if they were customers for clients’ games in the Apple iTunes store, giving their product 4 to 5 starts and saying things like an “amazing new game.”  Consumers had the impression these reviews were made by ordinary people who had already bought the game.   The FTC did not condition its settlement on Reverb paying monetary sanctions, but this case is a clear warning that deceptive reviews cannot be tolerated.  Reverb had to agree to remove old reviews.

Some services now provide the reviewers rather than these coming from in-house.  It is not always hard to follow the trail of some of these paid reviewers to see that they are reviewing products and services in places ALL OVER THE COUNTRY on the same day, pretending to be delighted consumers, always with 4 and 5 star ratings.  You may see the same individual reviewer claiming to have elective surgical services in San Diego, their dog trimmed in Aspen and their tires rotated in Raleigh, all on the same day.  Look cautiously at all reviews.  Often, the reviewer adds personal details and descriptions that make them sound very real.  By checking the other reviews of the individual endorsers, however, you might find something much more deceptive.  

As consumer attorneys, we hope to fight against these practices.  They are unfair to regular, honest business owners who are out there giving it their all for good REAL ratings and positive Yelps, etc.   When these owners have to compete with paid fake testimonials, how can they possibly have the proper ranking the services are intended to provide?

When we are able to show that a marketer has engaged in this conduct, as well as  for instance showing that statistical claims are not true, we take a further stand for truth in advertising, and build a foundation for potential punitive damages.

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Tomorrow, the U.S. House of Representatives will vote on H.R. 5, the deceptively-named “Protecting Access to Healthcare Act” (The PATH Act).  Unfortunately, it will pass.

Should this bill become law, it would “protect” at-fault healthcare providers, drug companies and their insurers from responsibility, by drastically limiting the rights of patients injured by medical malpractice, unsafe drugs, medical devices and nursing home care.  Among other broad “reforms,” H.R. 5 would establish a permanent $250,000 cap on non-economic damages (e.g., pain and suffering) on all medical negligence cases.

As we know too well in California, such damage caps can do the most harm to patients who have been injured the worst – those that have been permanently and catastrophically injured by the culpable conduct of their healthcare provider.  These patients can be compensated for their suffering no more than significantly less injured patients.  And when the risk of a large judgment is removed, so is a strong motive for the provider to use due care.

The Center for Justice and Democracy has written a compelling letter to the House against the bill, outlining the damages cap issue and other flaws; it is available Here.

This article in the Huffington Post describes the bill’s discriminatory impact on women.

The full text of H.R. 5 can be found Here.

The bill’s many flaws were no doubt exacerbated by its rush to the floor without thorough vetting.  But given the political mechanics of the House, it appears that there are simply not enough votes to defeat H.R. 5.  Still, it must pass the Senate in some form, and a strong opposition in the House could deprive the bill of momentum, and convince lawmakers to think take a second look at the bill before casting an “Aye.”

The Obama Administration’s official Statement of Administration Policy on H.R. 5 – released earlier today –  indicates that the President’s “senior advisors” would recommend a veto, should the bill pass both houses of the legislature.  The Administration takes particular issue with the bill’s egregious damages caps.  From the Administration’s Statement:

[T]he Administration has serious concerns with key aspects of medical malpractice provisions included in H.R. 5. The goals of medical malpractice reform should be to provide fair and prompt compensation to patients who have been harmed by medical negligence, reduce preventable injuries, improve the quality of care, reduce defensive medicine, and lower medical liability premiums. However, H.R. 5 would establish inappropriate and harmful restrictions on health care lawsuits without effectively meeting these goals. Specifically, the Administration opposes placing artificial caps on malpractice awards which will prevent patients and other claimants who have been wrongfully harmed from receiving just compensation.

Hopefully, the fight over H.R. 5 will not come so close as to require a presidential veto.  While the above statement is promising, the President himself has not yet taken a position.  Call your legislator.  Let them know that the way to reform healthcare is not to harm those wrongfully and significantly injured by those to whom they entrusted their health.  The phone number for the Capitol Switchboard is 202-224-3121.

Update:  H.R. 5 did pass the House 223 to 181.

For more information, or if you or a loved one have been injured in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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With the advent of convenience store clinics and big-box docs, as written about in this article in the San Diego Union Tribune, there is a need for consumers to be very much on their toes, especially if symptoms do not get better quickly. Patients would be best advised to get second opinions or emergency treatment fast in those situations. All doctors are held to particular standards of care, and often speed does not equal quality. A one-stop shopping approach to health care may help for on-the-go convenience, but is not necessarily the best. This is particularly so if the ailment does not meet a standard profile, or the attention of a specialist is required.

The law in California is that physicians who elect to treat a patient even though the patient should have been referred to a specialist will be held to the standard of care of that specialist.  If the physician meets the higher standard of care, he or she is not negligent. (Simone v. Sabo (1951) 37 Cal.2d 253, 257 [231 P.2d 19].) This is a difficult standard to meet and general practitioners often have trouble meeting it. There should and will be times these convenience docs cannot treat the condition and refer the patient to someone working in the specialty field – cardiology, ophthalmology, dermatology, etc. While this blog is not meant to criticize the credentials of doctors working in these ‘faster, cheaper’ venues, this is just a general caution that health should never be taken lightly and while some illnesses can be addressed by over-the-counter, pharmacist or quick doc advice, if the problems persist or progress, the safest approach would be to get other medical help immediately.

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“Never Do Harm” means doing nothing.  Strict adherence to this tenet of the Hippocratic Oath, taken by healthcare professionals upon their admission to practice, would hamper progress and stifle innovation that could save lives and ease the suffering of countless persons in need.  Medical tools and theory must be allowed to evolve.  But how can emerging, cutting-edge technology be safely introduced into practice?  This issue was the subject of the 2012 Patient Safety Conference held Thursday, February 16, 2012 at the University of California, San Diego School of Medicine.

Maximizing Benefits and Minimizing Risks

The title and focus of the conference was “Introducing New Technologies to Patient Care: The Promise and the Peril.”  Speaker Thomas Krummel, MD, of Stanford University, set the tone for the event by emphasizing that the modern, responsible approach to “Never Do Harm” is maximizing benefits while minimizing risks to the patient.  To this end, the seminar was flush with revolutionary medical technologies and methods, carrying the promise of maximal patient benefits… and the peril of catastrophic harms, if utilized incorrectly.

Robotic Surgery Continues to Progress

Frederic Moll, MD, co-founder of seminal robotic device innovator Intuitive Surgical, Inc. and now Hansen Medical, Inc. explained the accuracy and efficiency of new robotic surgery techniques.  A technique that continues to gain ground is the use of 3D preoperative imaging to allow surgical robots to “learn” the patient’s body before a procedure.  This allows the surgeon, who formerly had the benefit of physically touching the tissue he was working with, to sit at a remote video station and control a precise robotic surgical tool, without completely losing his sense of touch, or “haptic feedback” from the patient.

The Promises and Perils of Telemedicine

Attorney Janice Mulligan of Mulligan & Banham discussed the promises and perils of “telemedicine” with Lawrence Friedman, MD and Brett Meyer, MD of UCSD.  Telemedicine, or “therapy at a distance,” allows a physician or specialist in one area of the world to examine, or even perform procedures (via robot control) upon a patient in another.

The benefits of telemedicine are stunning – the best physicians become instantly available to the patients most in need, wherever they may be.  But proper physician adaptation to this new paradigm of care is essential. Legal concerns are also paramount. Mulligan cautioned that under existing law, a doctor from one state operating on a patient in another state without proper licensing can lead to criminal charges as well as unlimited civil liability and medical licensure censure. Change in states laws to facilitate telemedicine law across state and federal borders is necessary,but it is hampered by laws designed to preserve business for doctors in the states where patients are located.

Evolving EMR Standards

Joshua Lee, MD, of UCSD lectured about the rise in prevalence of Electronic Medical Records (EMR) and the need for vigilance in EMR standards to safely and ethically realize the possibilities of this exponentially expanding data cache.  Todd Pawlicki, PhD, also of UCSD, expressed pointed criticisms of the current state of electronic data platforms in medicine, urging hospitals to demand the same information-rich but user-friendly standard from their vendors that consumers demand of tech giant Apple, Inc.

Veteran Physicians: The New Novices

The common theme throughout the presentations on Thursday was that emerging technology and treatment techniques, with all of their hopes of “maximizing benefits” for patients, threaten to run afoul of the essential second half of the modern “Never Do Harm” tenet:  “minimizing patient risks.”  As cautioned by Dr. Moll, when you change the tools, you change the risk profile of a procedure. A poignant example was the personal experience of Santiago Horgan, MD (UCSD) with the treatment of achalasia.  Dr. Horgan has had to learn and re-learn how to perform surgical treatment for this disorder four times, in four different ways, over just two decades, due to evolving methodological standards.

The disconnect between the way physicians were taught to practice in medical school, and the procedures that are now demanded of them, is more pronounced now than ever before.  Experienced, “hands-on” surgeons are being told they should sit at a computer and control their scalpels with joysticks. Patients, the consumers of medicine, demand progressive laparoscopic and robotic techniques from their doctors, which are marketed to them as safer, cheaper, and with less cosmetic consequence.  But this change of tools has the practical effect of transforming veteran surgeons into novice students.  No matter how promising a new technology may be, in the hands of the inexperienced, it can be treacherous.

Lack of Opportunities to Train

Experience is everything.  The seminar’s consensus of the solution to realizing the maximal patient benefits promised by new technology, while minimizing the peril for patients, is a simple one:  PRACTICE.  And this practice is simply not available, nor ethically appropriate, “in the field” – i.e., by operating on patients.

Christopher Kane, MD, of UCSD, explained that in the case of robotic radical prostatectomies, for example, data shows that a surgeon does not reach proficiency until around his 300th procedure.  But the average urologist performs only about twelve of these procedures a year, and is “certified” after his second proctored procedure.  Given that lack of exposure, how can a surgeon become competent, much less proficient, even over an entire career?  And what is the use of emerging technology, if through lack of experience it causes more harm than existing techniques?

Prescription: Precise Simulation

Thankfully, the conference presented more than a diagnosis of the problem; but also a prescription for it.  UCSD, already the largest and most well-equipped teaching hospital in the region, has been busy building the solution.  The new, state of the art Simulation Training Center at the UCSD School of Medicine contains multiple mock-up patient rooms, operating rooms and training mannequins, and precisely the same equipment that trainees will use in the “real world” – from the latest multi-million dollar surgical robots down to fully functioning autoclaves (for sterilization of tools used on… dummies!  That’s thorough.)

Dr. Horgan, a world class physician and pioneer in laparoscopic procedures, robotic surgery, and emerging NOTES techniques (“scarless” surgery through natural orifices), has taken on an integral, hands-on role in the development of the Center and the execution of its goals.

The richness and authenticity of this training experience promises to take a novice to near proficiency before he or she need ever attempt the procedure on a living patient.  The Center is already in use and in high demand, not just by medical students, but by physicians and health care workers from UCSD and other area hospitals.

Don’t Be Your Doctor’s Dummy

For those of us in Southern California and surrounding areas, we are extremely fortunate that UCSD’s Simulation Training Center exists.  Patients take note: this training is available.  The better physicians, surgeons and nurses are taking advantage of it.  Demand the experience and demonstrated skill that simulated training provides from your health care provider – particularly if you are considering progressive surgical technologies or techniques.

For more information, or if you or a loved one have been injured in California, please contact the experienced lawyers at Mulligan, Banham & Findley.  Our telephone number is 619-238-8700.

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The Internet is filled with web pages, profiles and rankings singing the praises of individual physicians, but how do you know if any particular doctor is really good, as opposed to a shoddy, substandard physician with a slick publicist or personal friend who posts favorable reviews on their behalf?
One way is to check the court records in the county where the physician practices to determine what kind of lawsuits there have been against the doctor and what the result was from those suits. In San Diego County for example, the court index can be accessed online at:

http://www.sdcourt.ca.gov/portal/page?_pageid=55,1056871&_dad=portal&_schema=portal.

If you find that a specific physician has been sued on numerous occasions, it may well be worth a personal trip to the courthouse to pull the entire files and learn more about the individual before allowing the physician to operate or even treat you or your loved ones.


Unfortunately, not all physicians who have been sued multiple times for malpractice have public records at the courthouse. Shocked? How can this be? Well, because many physicians have arbitration agreements which require their cases to be resolved outside of the courthouse by private arbitrators. Often, these lawsuits are never filed in court.
You may be able to learn more about these physicians by checking with the California Medical Board online at:http://www.medbd.ca.gov/lookup.html The Medical Board’s website should be able to tell you if the physician has been disciplined or even formally accused of wrongdoing by the Medical Board or some limited information about the physician’s past settlements or judgments in other medical malpractice litigation. More bad news though, because the Medical Board is under-funded and under-staffed, so on occasion there is no listing even for physicians with a “colored past”.
If you can’t universally rely on court filings or the state licensing/discipline board to tell you if a physician is really good what do you do? Word of mouth from other family and friends who have used a particular physician’s services is often a good way to find such a professional.
New to a community or don’t know anyone who is familiar with a specialist in a particular field of medicine? Often the best physicians are at the university based community hospitals, such as the University of California, San Diego (“UCSD”). These physicians typically are at the top of their field of expertise and more interested in academia and research than some of the for-profit physicians. By doing a little research on the university medical center’s website, you will likely be even able to find a specific doctor who is trained in and conducts research in specific diseases or injuries of interest to you.
One caveat however is that some recent studies have shown that medical errors spike in the summer when new medical trainees start working at teaching hospitals — a phenomenon known as the ‘July effect.’ The New York Times (7/12/11, D6, Rabin, Subscription Publication) reports that death rates do increase in July, and that many patients stay in the hospital longer than in other months.” The Wall Street Journal (7/11, Hobson) “Health Blog” reported that for the review, published in the Annals of Internal Medicine, investigators looked at data from 39 different studies.The Boston Globe (7/11, Kotz) “Daily Dose” blog reported that “the best-quality studies reviewed found that patients treated in July had a 4 to 12 percent increase in mortality risk compared to those treated in the spring before the staffing change.” Meanwhile, “Some of the studies also indicated an increase in medical errors and complications from procedures, but the data weren’t strong enough to draw firm conclusions.” HealthDay (7/11, Mozes) and Medscape (7/11, Kling).
Remember, even if you do find a good physician, a true second opinion from an independent specialist at a different medical group is always a good idea before embarking on surgery. Sometimes a third opinion is even better!
Stay healthy, eat your veggies and exercise. If you are lucky, only preventative medicine and a yearly check up will be all that is required. If not, a trip to the courthouse before surgery to check on your doctor beats the need for a medical malpractice attorney after an adverse event.

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