New York & New Jersey Medical Malpractice Law Blog

Medicare's Stand on "Never Events"

ccerussi@cerussilawfirm.com (Charles Cerussi) — Wed, 29 Oct 2008 10:21:58 -0500

Never events are "reasonably preventable" events or occurrences that should never happen in a hospital or healthcare facility. The National Quality Forum (NQF) defines never events as "serious reportable events" and include surgical events, such as performing the wrong procedure; product or device events, such as contaminated drugs or devices; and criminal events, such as sexual assault on a patient.

The 28 never events, as defined by the NQF are:

artificial insemination with the wrong donor sperm or donor egg
unintended retention of a foreign object in a patient after surgery
patient death or serious disability associated with patient disappearance
patient death or serious disability associated with medication error
patient death or serious disability associated with electric shock or elective cardioversion
patient death or serious disability associated with a hemolytic reaction due to administration of blood products
patient death or serious disability associated with a fall
surgery performed on the wrong body part
surgery performed on the wrong patient
wrong surgical procedure performed on a patient
intraoperative of immediately post-operative death in an ASA Class I patient
patient death or serious disability associated with the use of contaminated drugs, devices or biologics provided by the healthcare facility
patient death or serious disability associated with the use or function of a device in patient care, in which the device is used or functions other than as intended
patient death or serious disability associated with intravascular air embolism
infant discharged to the wrong person
patient suicide or attempted suicide resulting in serious disability
maternal death or serious disability associated with labor or delivery in a low-risk pregnancy
patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is cared for in a health facility
death or serious disability associated with failure to identify and treat hyperbilirubinemia in neonates
stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility
patient death or serious disability due to spinal manipulative therapy
any incident in which a line designated for oxygen or other has to be delivered to a patient contains the wrong gas or is contaminated by toxic substances
patient death or serious disability associated with a burn
patient death or serious disability associated with the use of restraints or bedrails
any instance or care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider
abduction of a patient of any age
sexual assault on a patient
death or significant injury of a patient or staff member resulting from a physical assault

Beginning on October 1, 2008, Medicare will deny payment on such never events that occur in hospitals or healthcare facilities. Hospitals or facilities cannot only be denied payment, but are prohibited from billing the patient and must absorb any and all costs associated with remedying the damage they caused. Although physicians are not yet affected by this new policy, it is expected that the benefits will result from hospitals working harder to prevent these errors and making greater efforts to protect their patients. Medicare is currently seeking a uniform payment policy which will apply to physicians as well.

Failure to Comply with Statute of Limitations Gives Rise to Legal Malpractice Actions

ccerussi@cerussilawfirm.com (Charles Cerussi) — Tue, 01 Jul 2008 15:44:13 -0500

A Statute of Limitations is a statute, or law, that restricts the period of time an individual has to bring legal action from the date of the occurrence. The time periods vary from state to state and the amount of time depends upon the type of claim or cause of action. If an action is not brought within the applicable Statute of Limitations, an individual is forever barred from initiating that particular action and recovering monetary damages unless a legal exception applies, such as the plaintiff being a minor. An attorney's failure to adhere to the statute can result in a legal malpractice action.

In New York, the statute allows for three (3) years to initiate a personal injury action, whether predicated on negligence or "strict tort liability" or "strict products liability." A claim of negligence against non-medical professionals, such as legal malpractice, has a three (3) year statute, while medical malpractice cases have a two and a half (2.5) year statute, encompassing all medical professionals, including physicians, dentists, hospitals, etc. A wrongful death action in New York has a two (2) year statute of limitations from the date of death of the decedent to bring such a claim.

In the same types of cases, New Jersey imparts different time restraints within which to commence legal proceedings. There is a two (2) year Statute of Limitations for personal injury, products liability, medical malpractice and for wrongful death actions; however the exception to this two (2) year statute is the Discovery Rule. The Discovery Rule applies to a medical malpractice action and provides that the Statute of Limitations does not begin running until the facts presented to a reasonable person would indicate that that reasonable person, exercising ordinary diligence, was damaged or injured by another. The person would have to have knowledge of the injury and that it was due to the negligence of another person.

Failure to comply with the Statute of Limitations, no matter where the action is venued and what type of action, may ultimately give rise to a legal malpractice action. Although there are many other causes for claims of legal malpractice, missing a Statute of Limitations can easily be avoided by the law firm maintaining a organized system of the dates of loss or dates of onset of injuries.

Pressure Ulcer Prevention and Treatment

ccerussi@cerussilawfirm.com (Charles Cerussi) — Mon, 30 Jun 2008 14:10:57 -0500

Nursing homes and other long term care facilites have become the focus of scrutiny because of increasing improper care, negligence and failure to prevent pressure ulcers. Patients are caused to suffer pain, disfigurement, decreased quality of life and increased risk of illness and death from pressure ulcers that exist due to the negligence of the healthcare provider and often lead to legal action. Pressure ulcers, or decubitus ulcers, occur when bedridden patients are left in one position for an extended period of time, preventing the patient's weight to be shifted to avoid pressure. The area of skin that comes in contact with the bed, wheelchair or other object is caused to break down due to the constant pressure and ultimately, the tissues die because of the reduced blood flow to that area.

Pressure ulcers are categorized by severity from Stage I to Stage IV and range from a reddened area of the skin to an ulcer so severe that the muscle and bone, and often times the tendons and joints, become damaged.

Some preventive strategies involve the implementation of patient education, clincian training, strategies in developing communication and terminology materials, provision of toolkits and protocols, behavioral challenges and healthcare provider and patient adherence. Educating patients and their families about wound care and training health care providers in preventing the pressure ulcers is crucial to the prevention. Documentation should be provided to health care facilities and providers which will ensure that they become familiar with all the terms and vocabulary of pressure ulcers and prevention as well as ensure that they develop better skills in sharing information with one another. Toolkits and protocols are also important in that they provide documentation of pressure ulcer staging along with protocols for care and training materials for clincians carrying out the protocols. Behavioral challenges promise to transform acute care pressure ulcer prevention within a short period of time and healthcare provider and patient adherence and compliance will become the vehicle which drives the pressure ulcer prevention strategies.

As prevention strategies and interventions are underscored as a solution to this problem, recognition and education of the pressure ulcers remain the initial significant component of the clinical care of wound treatment.

Establishing Conscious Pain and Suffering in New York and New Jersey

ccerussi@cerussilawfirm.com (Charles Cerussi) — Wed, 18 Jun 2008 12:22:25 -0500

A common problem in wrongful death actions in New York and New Jersey is that neither state allows for compensation for what usually is the greatest loss to the decedent's family, namely the emotional grief and distress that is attendant with losing a loved one. Both New York and New Jersey limit damages in wrongful death cases to "economic loss" to the decedent's estate, as well as conscious pain and suffering that was experienced by the decedent prior to his or her actual passing. Accordingly, it is imperative for attorneys practicing in these states to develop evidence establishing conscious pain and suffering. This is done by retaining either an expert in critical care medicine and/or a forensic pathologist to review the medical records and the entries of any nurses and/or physicians, as well as the testimony of any witnesses to either an accident or persons who were with the decedent after an act of malpractice was committed.

Conscious pain and suffering awards can be substantial in wrongful death actions and can offset the injustice of the wrongful deaths acts in New York and New Jersey. By way of example, a jury awarded $2 million for conscious pain and suffering in a medical malpractice action, which award was affirmed by the Appellate Division in New Jersey in 2006. The jury's award for pain and suffering was for only four (4) minutes of suffering that occurred after the decedent's doctors failed to properly drain his gastric contents, causing the patient to choke to death on his own vomit. The death was described as "horrible," as if the decedent were "drowning" in his own secretions. Accordingly, under these circumstances, both the trial judge and the Appellate Division did not find the pain and suffering award excessive.

Therefore, it is clear that the conscious pain and suffering component of a wrongful death action is critical in most cases and can serve to offset some of the inequities of the current wrongful death acts in both New York and New Jersey.

Brachial Plexus-Erb's Palsy Injury with Shoulder Dystocia During Childbirth

ccerussi@cerussilawfirm.com (Charles Cerussi) — Wed, 18 Jun 2008 11:53:49 -0500

Shoulder dystocia occurs during childbirth when after the head of the child is delivered, the anterior shoulder of the infant cannot pass below the pubic synthysis. It is diagnosed when the shoulders fail to deliver spontaneously after the fetal head.

It is imperative that during the management of shoulder dystocia that the attending obstetrician not apply excess downward lateral traction, which can cause a brachial plexus injury. Excess lateral traction is the most common cause of brachial plexus injuries and its utilization fails to meet standards of care and can result in the baby being delivered with Erb's Palsy. Traction on the head that is applied by the OBGYN at delivery can cause brachial plexus nerve injury.

Fetal maneuvers can reduce the incidence of bracial plexus palsy and are both safe and effective. It has been described by Drs. Gurewitsch and Allen of the Johns Hopkins University School of Medicine that fetal manipulation is actually associated with a very low rate of injury compared to maternal maneuvers or traction alone. Because of this, training in fetal maneuvers should be emphasized and should be prioritized in shoulder dystocia management algorithms.

Drs. Gurewitsch and Allen advised that clinicians need to think counterintuitively - to slow down, but keep track of time and use it wisely. OBGYNs are advised to wait for a contraction, but not to push or pull, instead allowing the shoulders necessary time to rotate on their own. They should actively increase their awareness of traction and their tendency to naturally increase it when faced with a difficult delivery. Use of episiotomy should be only to gain access to perform fetal maneuvers and not as a maneuver in its own right.

Finally, Drs. Gurewitsch and Allen advise that obstetricians are urged not to fear fetal manipulations but rather to become adroit at them, by practicing on all shoulder dystocia delieveries and even on routine deliveries. Researchers, educators and policy makers need to validate, prioritize and re-emphasize the advantage of fetal maneuvers for management of shoulder dystocia.