Twelve patients have suffered serious illnesses after getting injections, which contained stem cells from umbilical cord blood, the New York Times reports. The U.S. Food and Drug Administration (FDA) issued a warning to California-based Genetech, the company that made the blood products these patients were given. The patients who became ill had been given injections to their knees, shoulders or spines to treat painful conditions such as arthritis. …Read the rest »
Category: Medical Malpractice
A state judge in Pennsylvania has ordered a new trial in a vaginal mesh lawsuit brought by a woman alleging that Johnson & Johnson subsidiary Ethicon’s TVT-Secur caused her severe injuries. According to a report on Mass Devices, the jury had previously ruled that TVT-Secur device was defective in design and that the company did not properly warn pelvic floor surgeons of the risks of using the device. However, the same jury also determined that neither the warnings nor the defect caused the plaintiff’s injuries. …Read the rest »
They say beauty is pain, but how much pain is too much?
The plastic surgery industry is a billion-dollar business that continues to grow day by day. People line up for free consultations to look and feel better about themselves. What is not often publicized though is the plastic surgery dangers that follow a procedure. Some people looking to make minor changes on their face or body end up having major health or physical deformities, which begs the question of is plastic surgery safe?
Here’s more on how plastic surgery risks and complications can leave you with ugly results. …Read the rest »
The UK government has ordered the suspension of transvaginal mesh surgeries to avoid the risk of life-changing injuries to women. According to an article in the Guardian, the government has accepted that the use of vaginal mesh implants to treat complications after childbirth should be stopped right away to prevent the threat of injury and serious side effects to women. It would essentially stop these surgeries in government-run NHS hospitals. This decision follows an independent inquiry ordered in February, which determined that the surgery must not be performed until steps have been taken to mitigate risks to patients. …Read the rest »
Medical device manufacturer C.R. Bard has been ordered to pay $35 million in punitive damages to a woman who has blamed her injuries on the company’s vaginal mesh implants. According to a Bloomberg news report, the punitive damages handed down April 13 in New Jersey brings to $68 million the amount that Bard must pay to the plaintiffs, Mary McGinnis and her husband. McGinnis said the Bard vaginal mesh inserts, which are designed to support sagging pelvic organs and address incontinence issues, were defective and left her in a state of chronic pain. …Read the rest »
An Atlanta woman is reportedly suffering chronic, excruciating pain that has made it difficult for her to perform everyday activities from walking and using the toilet to having sex after surgical mesh used to treat a hernia tore her pelvic nerve. According to a news report in The Daily Mail, the strong painkillers 36-year-old Amy Whitaker took in order to numb that pain erased memories of her children. As she suffered, Whitaker’s parents took out two mortgages to help Whitaker and her husband care for their children. …Read the rest »
Vaginal mesh implants should not be used to treat pelvic organ prolapse, according to the United Kingdom’s health watchdog group. The Independent reports that the National Institute for Health and Care Excellence (Nice) has ruled that evidence for the long-term efficacy of treating pelvic organ prolapse with transvaginal mesh implants is “inadequate in quality and quantity.” This decision mirrors Australia’s recent decision to ban mesh implants specifically to treat prolapse declaring them too risky and riddled with horrific side effects. …Read the rest »
The family of 15-year-old Yunique Morris is alleging that a Stockton hospital’s negligence caused their daughter’s sudden death from blood clots. According to a KTLA news report, Yunique was a healthy, active student and cheerleader at Weston Ranch High School. Two years ago, the teen complained of ongoing chest pain and was seen by her doctor at San Joaquin General Hospital. …Read the rest »
If you or a loved one has been misdiagnosed or have been a victim of medical malpractice in the state of California and would like to take the doctor or hospital to court, you my find it very difficult to get a lawyer to represent you. There’s a reason California personal injury lawyers cringe at medical malpractice lawsuits – in this state, we have a $250,000 cap on medical malpractice awards and a cap on attorney’s fees. These two factors combine to make the pursuit of a medical malpractice not worth the costs and risks for wronged patients and their attorneys.
This cap on medical malpractice awards has been in existence for more than 30 years now in California. In 1975, the state enacted legislation capping malpractice awards and lowering attorneys’ fees (only for the patients’ attorneys) after doctors and insurers in California protested saying oversized awards and ever-increasing insurance rates were driving physicians out of the state.
What this law known as Medical Injury Compensation Reform Act (MICRA) essentially did was limit the amount of money for “pain and suffering” – which is the physical and emotional distress caused by an injury – to $250,000. There is no limit on what patients can collect for loss of future wages and other expenses. So if a non-wage earner dies because of medical malpractice the maximum jury award would be $250,000 no matter what.
But the big question that lingers all these years is: Has there really been a benefit to the public in terms of insurance premiums lower health care cost because of this cap? Victim advocates and experts who oppose the cap say: No. This law, they say, is increasingly preventing victims and their families from getting their day in court. This is especially true of the most vulnerable population such as low-income families, children and seniors. Opponents of the caps also argue that this limit on pain and suffering has never been raised or affected by inflation over the last three decades.
As for attorneys, it is not a cheap proposition. They bear the out of pocket costs of putting on these trials. Those costs easily exceed $75,000 and they have been skyrocketing over the years. Ad a discount fee structure and it makes no economic sense for attorneys to represent malpractice victims, they are much better off working for the medical providers and their insurance companies.
The malpractice caps are being reconsidered in many states because of the manner in which they have been hurting poorer patients. But California has never reconsidered these caps. A recent Los Angeles Times investigation revealed that the cap is in fact preventing many California families from getting their day in court.
Here are some of the findings listed in the Times article:
- Court malpractice filings have fallen in eight out of the 10 most heavily populated counties. In Los Angeles county there was a 48 percent drop in filings since 2001 and a 29 percent drop in Orange County,
- At Kaiser Permanente, where arbitration is the way rather than court, claims have fallen by 20 percent since 2001.
- The number of payments to victims and their families across California had also dropped by 24 percent since 1991. The Times looked at a federal database of half a million claims to make that determination
- Insurance companies have made record profits in California compared to other states. The Times article states that California insurers have only paid 39 cents of every premium dollar since 1991 while the national average was 63 cents.
In spite of these facts, proponents of MICRA paint a dire picture of a world without caps or increased caps saying that it would lead to significantly higher healthcare costs and limit patients’ access to doctors.
But several studies done on the subject especially one by The Foundation for Taxpayer and Consumer Rights, say the malpractice caps have not helped doctors either. The study says that other state policymakers should learn from California’s experience.
The state with its cap tried to set tort limits and voters through the passage of Prop 103 in 1988 set the stage for insurance reform. The study concludes that while the stringent continued regulation of malpractice insurance rates lowered premiums for doctors, malpractice caps and other restrictions on the tort system failed to provide doctors the relief they sought. This study found that malpractice rates rose six-fold between 1975 and 1988, until Proposition 103 was passed, after which those rates have held steady.
One of the largest studies done on the topic was by Dartmouth College researchers, which is also cited in the Los Angeles Times article. This study concluded that malpractice payments have risen along with medical care costs, while doctors’ insurance premiums grew way quickly – by double-digit percentages annually for some specialties.
The caps, above all, violate victims’ constitutional rights to due process and equal protection by limiting what they can receive for their pain and suffering. How it is equal protection if you suffer a particular injury because of a doctor’s negligence as opposed to a traffic accident and the doctor is not held fully accountable, but the negligent driver is made to pay?
A decision in Cooke County, Illinois, where a judge struck down a two -year-old state law that capped compensation to victims, has given new hope. According to an article in the Chicago Tribune, Cooke County Circuit Court Judge Diane Larsen decided that caps on malpractice awards violated the Illinois Constitution’s “separation of powers” clause.
She ruled that the legislature cannot interfere with the right of judges and juries to determine fair damages. Her ruling reportedly falls in line with a 1997 Illinois Supreme Court decision, which overturned a 1995 law setting caps on personal injury lawsuits.
Many California personal injury attorneys are looking for the “right case” to appeal to our state’s highest court with similar arguments to overturn these caps that are neither equitable nor beneficial to doctors or patients. We hope this law changes soon so patients can actually get fair compensation for their injuries or at least the opportunity to have their day in court.
What is the Medical Injury Compensation Reform Act (MICRA)?
The law enacted in 1975 basically did the following:
- Placed a $250,000 cap on the amount of compensation paid to malpractice victims for their “non-economic” injuries
- Eliminated the “collateral source rule” that forces those found liable for malpractice to pay all the expenses incurred by the victim.
- Permitted those found liable for malpractice to pay the compensation they owe victims on an installment plan basis.
- Imposed a short “statute of limitations” on malpractice victims (generally one year).
- Established a lowered sliding scale for attorneys’ fees that discourages lawyers from accepting malpractice cases.
Source: How Insurance Reform Lowered Doctors’ Medical Malpractice Rates In California, The Foundation for Taxpayer and Consumer Rights
Use of the Da Vinci Surgical System has quadrupled in the last four years, according to a recent Los Angeles Times article. Da Vinci is a multi-purpose robot with four metal and plastic arms that can lend a hand with surgeries including heart bypass, hysterectomies and prostate removal.
It is important to understand that this robot is not actually performing the surgery. It is only mirroring the movements of the surgeon’s hands. But according to Dr. Marty Makary, a surgeon at Johns Hopkins University School of Medicine, the robot is more of a marketing tool to attract patients and doesn’t really do much to improve the quality of care.
The disturbing fact is that 12 years after the U.S. Food and Drug Administration (FDA) first approved the Da Vinci, there is still no industry standard for training and credentialing doctors to use the robot, beyond a basic course by manufacturer. This leaves patients wondering as to whether their surgeon is experienced enough to perform the surgery using a robot.
Many Da Vinci lawsuits claim that hospitals allow surgeons without sufficient experience to use the robots. Some surgeons and hospital officials say the robots are being overused, even when there is no clear benefit.