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Posts Tagged ‘dental malpractice’
Thursday, February 18th, 2010
School of Thought Rule
You have already read about the New Jersey case, which held that a podiatrist cannot be expected to treat a cardiac arrest, because he is only trained to work below the ankle. However, an Arizona podiatrist treated an elderly man for pain in the leg and lameness. When the patient asked if they should call in another doctor, the podiatrist told him it was not necessary, and everything would be all right. The man had a blockage of the artery to the leg; he eventually developed gangrene and had to have the leg amputated. He sued for medical malpractice, alleging that arterial bypass surgery could have saved his leg. He won his case.
What about chiropractors? They believe diseases are caused by pressure on the spinal nerves and cannot be held to the same standard as M.D.’s or D.O.’s. However, they are expected to know when a disease is beyond their skills and refer the patient to a doctor. A Pennsylvania woman consulted a chiropractor about pains in her back. He took a chest x-ray and manipulated her back for over a year. When she did not improve, she went to a doctor who found that she had advanced cancer of the lung. It was visible on the x-ray taken by the chiropractor, and at that time, it was in an early stage. She sued for medical malpractice and won. The chiropractor claimed he was not a radiologist, an x-ray specialist, and could not be expected to read x-rays as well as a specialist. But, the judge said that if he took x-rays, and his patients relied on his reading them, he had a duty to read them correctly.
How About Faith Healers and Religious Counselors?
Your chances of prosecuting a successful lawsuit for malpractice against a religious counselor or faith healer are not very good. Since there are no recognized standards as to what is acceptable practice for faith healing, it is virtually impossible to establish a complaint of malpractice, which is a departure from good and accepted practice.
If a faith healer or religious counselor is connected with a religious organization, he is probably protected by the First Amendment to the Constitution and immune to lawsuit. About the only claim that has much chance of success against a faith healer or religious counselor is if you have a treatable, medical illness and one of them persuades you not to consult a doctor by promising you a faith cure.
In a California case, the parents of a boy who committed suicide sued his religious counselor for malpractice. They lost the case because: 1.) a religious counselor is not a psychiatrist and cannot be held to the standard of competence of a psychiatrist, and 2.) all communications between a clergyman and a believer were private and privileged under the Constitution and could not be inquired into by the court.
The Doctor Went Outside His School of Thought or Specialty
There is one common exception, to all these limitations on liability that comes up frequently. Whenever a doctor holds himself out as a specialist, or undertakes a medical or dental case that should be handled by another school of thought, medical or dental specialty, he can be held to the standard of that specialty.
If your family doctor treats a serious eye condition, which turns out badly, and you lose the eye, and he says, “It could not be helped. I did my best, but I am not an eye specialist.” Is that a valid excuse? No. If he undertook to do what a specialist should normally have done, he can be held to the level of a specialist. Today, some doctors go outside their field and do things which they are not trained or qualified to do. If it turns out badly, they cannot plead ignorance.
As long as a doctor stays within his area of expertise, he is protected by what lawyers call the presumption of competence, which means the law believes he was competent to do whatever he did. You have the burden of showing he did something wrong. He does not have to prove he did it right. But, if he goes outside his field, that is more difficult for him. It is more difficult to prove you did not do something wrong.
Podiatrists and oral surgeons may commit malpractice in their own field or if they go outside their field. For instance, if a podiatrist tries to do knee surgery or an oral surgeon works on the ear or neck, and anything goes wrong, they are on the defensive.
There are two exceptions to the standard of care that you have to be aware of, the respectable minority and error of judgment rules. They will be discussed in our next post.
Tags: chiropractor, dental malpractice, faith healers, medical malpractice, podiatrist, religious counselors, school of thought rule
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Friday, February 5th, 2010
The State of the Art Rule
This means the doctor has to be up-to-date and in step with modern medicine or dentistry. For example, we know today that lumpectomy (non-disfiguring removal of individual lumps) and simple mastectomy produce better results in most cases of breast cancer than the disfiguring, disabling radical mastectomy that was popular with breast surgeons for many years. Today, a doctor who rushes in and does radical breast surgery, without considering conservative treatment, is not up to the state of the art and is guilty of malpractice.
In a New York case, a 19 year-old girl had been treated with radioactive cobalt for Hodgkin’s disease (cancer of the lymph nodes). The cobalt treatments were successful, and she could have lived a normal life, except for susceptibility to a severe reaction if she were ever given a blood transfusion. One day the hospital mistakenly gave her a transfusion that killed her.
At just about that time, it was discovered that the transfusion reaction could have been prevented by irradiating the blood (exposing it to radiation). When her family brought suit, the case hinged upon whether using irradiated blood was the “state of the art” at the time she died. If it had happened two or three years earlier, it would not have been, and there would not have been any malpractice. If it had happened two or three years later, when irradiating blood had been written up in all the medical journals, it would have been a clear-cut case of medical malpractice. The result? The lawyers finally compromised.
The Rule Is: No one can tell what medical or dental advances will be made next year or even tomorrow. A doctor only needs to practice according to the state of the art today. Even if new developments have been reported in the news, he cannot be criticized for failure to utilize them until they are officially recognized and accepted by the medical or dental profession.
The School of Thought Rule
A doctor can only be judged by the standards of his school of thought. A podiatrist (foot doctor) cannot be held to the standard of an orthopaedic surgeon. An otolaryngologist (ear, nose, and throat specialist) need not be an expert in dentistry. The schools of thought are:
Allopathy (M.D.) - Medical Doctors.
Osteopathy (D.O.) - Osteopaths used to be bone manipulators, but most osteopaths now receive the same training as M.D.’s.
Homeopathy - Homeopaths believe in giving very small doses of drugs. There are few of them practicing. Most homeopaths have become M.D.’s or D.O.’s.
Podiatry (D.P.M.) - Podiatrists work below the ankle and are recognized experts in foot disorders.
Dentistry (D.D.S. or D.M.D.) - Doctor of Dental Surgery or Doctor of Dental Medicine indicate the degree awarded upon graduation from dental school to become a general dentist. There is no difference between the two degrees; dentists who have a D.M.D. or D.D.S. have the same education.
Chiropractic (D.C.) - Chiropractors believe that diseases are caused by pressure on the nerve roots and manipulate the spine. They are licensed to take and read x-rays.
Holistic Healing - Drugless healers who treat the body as a whole and not the disease, usually by diets and nutrition.
Faith Healing - Any one who tells you that you can be cured by faith or belief alone.
Tags: allopathy, chiropractic, dental malpractice, dentistry, faith healing, holistic healing, homeopathy, medical malpractice, osteopathy, podiatry, school of thought rule, state of the art rule
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Wednesday, January 20th, 2010
A physician or dentist does not undertake to cure you. He only has to do his best for you according to the standard of care for his community or medical or dental specialty. If he did not, you have a legitimate complaint. If he did, you probably do not have a case, no matter how disastrous the results.
Many years ago, an anesthesiologist in Rhode Island had a patient die while under anesthesia. The doctor admitted that it would not have happened if he had learned up-to-date techniques used by anesthetists in Boston, which was only 40 miles away. But, he had never gone there to learn and claimed that his outmoded and dangerous techniques were the same as those used by other doctors in the same small city, and the court believed him.
That excuse would not work today. With modern education and travel facilities, more and more states have recognized that a small-town physician or dentist has plenty of opportunity to attend meetings and take courses to keep abreast of new developments in medicine or dentistry. In most states, it is no longer a defense for the doctor to claim that he met the local standard, especially if it is a low standard.
In 1929 the American Dental Association began to establish dental board certification for dentists who wished to specialize. These doctors spend two or more years in advanced training and then must pass examinations administered by a specialty board recognized by the American Dental Association. Since the training, exams, and standards of practice for Board Certified dental specialists are the same everywhere in the country, they can be judged by a national standard.
In the 1930’s, the American Specialty Boards were established to insure that a physician, who claimed to be a medical specialist, was really competent. To be Board Certified as competent in a specialty, a doctor has to spend years training in a hospital and pass rigorous exams. Here, too, since the training, exams, and standards of practice for Board Certified medical specialists are the same everywhere in the country, they can be judged by a national standard.
Sometimes Board Certified specialists will try to defeat medical malpractice cases by claiming they are only local doctors. A heart surgeon in California claimed that he practiced according to a lower standard when he operated in San Bernardino than when he operated in a university hospital in Los Angeles. Unusually, that does not work.
The Standard of Care
There are several ways you can judge whether or not a physician or dentist lived up to the standard of care, or whether he has indeed committed malpractice. In other words, whether the bad result that was devastating for you and your family was justified, or whether the doctor was really to blame.
The Average or Reasonably-Competent Practitioner Rule
A physician or dentist does not have to be the best in the country or even in the top 50%. If all the doctors in the U.S. were rated on a scale from 1 to 10 and the average was 5, half would be above 5 and half below. Does that mean that all the doctors who fall below the 5 average should be considered incompetent? No. As the U.S. Supreme Court once put it, if 51% of the doctors in the U.S. do things in a certain way, it does not mean that the other 49% are automatically guilty of malpractice. The average is what is considered as generally accepted by the profession. All a doctor has to show is that he acted with reasonable skill or as most of his colleagues would have acted.
Tags: american dental association, american specialty boards, average or reasonably competent practitioner rule, board certified, dental malpractice, dental specialty boards, local standard of care, medical malpractice, national standard of care, standard of care
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Friday, September 18th, 2009
Multiple Defendants
You were treated by many doctors over a period of time and cannot be sure which one was responsible or whether they all were. This is the most difficult type of malpractice case to win for the following reasons:
1. Medical malpractice lawsuits against multiple defendants require an enormous amount of paperwork and added expense.
2. Juries might believe that one or two doctors committed malpractice but are reluctant to believe that all the doctors and two or three hospitals were all negligent.
3. Jurors are turned off by what they see as harassment suits against innocent people.
4. The most important reason is that the lawyer for each defendant will make a summation speech to the jury at the end of the case, which means that the jurors will hear multiple arguments against you and only one argument - your lawyer’s - in your favor. That loads the odds heavily against you, and such cases are usually lost.
An airline attendant sued a California dentist for dental malpractice that resulted in her losing most of her teeth. However, in the course of her work, she had been treated by four other dentists in different cities, during and after the poor work done by the California dentist. Her lawyer had an impossible job of trying to sort out who was responsible for what, and he could not drop any of the defendants, because their work was overlapping. She finally dropped her case.
The Rule Is: As your attorney makes discovery and finds out what really happened and who was responsible, you drop your complaint against everybody who was not responsible and try to end up with not more than 1 or 2 opponents in court.
The Doctor Made a “Slip of the Wrist.”
Be careful of the mishap which can be defended as a “slip of the wrist” or unforeseeable accident. We all make honest mistakes, and medicine and surgery are arts and not exact sciences. If the statistical chances of a bad result from the operation you had are 2%, and your doctor testifies that he has done over 200 and yours is the first one he ever had to go wrong, the jury will probably go along with him. No one is perfect, and doctors are only expected to adhere to good and accepted medical practice.
Unless the doctor has persuaded you to go ahead with surgery or treatment on the basis of a promise of specific, good results, such as in Cosmetic Plastic Surgery, the law says that he only undertakes to treat you and does not guarantee any results. However, if there was a Pattern of Negligent Behavior - he was negligent on more than one occasion while treating you - it blocks the simple mishap defense, and your case is much stronger.
The Local, Small Town Doctor
The physician who looks and acts the part of the sincere, dedicated, well-qualified doctor, and who is well thought of in the community, can be a tough opponent, no matter what he did. The jury is going to believe his version of what happened, because the jurors like and trust him.
In a case in upstate New York, a neurosurgeon had a patient who died. The doctor was in his 80’s - too old to open somebody’s head - and made terrible errors, which caused the patient’s death. No doubt about it. Technically, it was an open-and-shut case. The widow sued and brought in well-qualified professors in Neurological Surgery and Pathology as her medical expert witnesses. The doctor’s medical expert was a pathologist with dubious credentials, who showed microscopic slides that he said were from the patient but were proven to be from another person and exposed as fraudulent. No matter! The doctor was a beloved old, local character who knew practically everybody in town. The jury was not about to find him guilty of malpractice - and it didn’t.
The Rule Is: Eminent doctors and famous hospitals can usually brush off weak or dubious lawsuits. Juries are reluctant to believe that they would do anything wrong. They are tough opponents and you must have a strong case if you hope to win. One way your lawyer can neutralize local popularity or prestige of a formidable opponent is by a legal maneuver called Change of Venue.
Tags: change of venue, cosmetic plastic surgery, dental malpractice, expert witness, malpractice, malpractice case, medical expert, medical expert witnesses, medical malpractice, medical malpractice lawsuits, multiple defendants, pattern of negligent behavior
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Friday, April 17th, 2009
Medical and Dental Records:
What you need to know and how to understand what you have.
Types of Records
Medical and Dental Office Records:
1. Notes made each time the patient was seen
2. Records of telephone conversations with the patient
3. Reports of laboratory tests and x-rays made in the office or somewhere else
4. Copies of x-rays made in the office
5. Copies of photographs made in the office
6. Copies of important parts of the patient’s hospital chart, if applicable
7. Copies of insurance claims
8. Copies of correspondence with other doctors regarding the patient
Hospital Records
A. Primary
The following records should be considered a must, if applicable to your case.
1. Face sheet
2. Emergency room record, if applicable
3. History and Physical examination
4. Doctor’s admission and progress notes
5. Reports of consultations with other physicians
6. Anesthesia records, including the anesthetist’s preoperative consultation and
examination
7. Operative reports
8. Labor and delivery records, if applicable
9. Examination of newborn infant
10. Recovery room and/or ICU records
11. Surgical Pathology report
12. Reports of x-rays, EKG, fetal monitoring strips, and any other special
diagnostic tests that were performed
13. Copies of x-rays or other diagnostic tests that were preserved on film or CD
14. Graphic chart (temperature, pulse, blood pressure, etc.)
15. Incident and accident reports, if the patient fell or was injured
16. Autopsy protocol, if applicable
B. Secondary:
These records may comprise as much as 80% of a hospital chart. Request only those pages that contain pertinent information.
1. Routine laboratory reports
2. Nursing notes
3. Physicians’ orders
4. Medication records
5. Consents to treatment or surgery, unless lack of informed consent is part of your client’s complaint
C. Limited value:
Do not order these records, unless they are pertinent to your case.
1. Dietary notes
2. Input and output records
3. Nurses’ worksheets
4. Physiotherapy, respiratory therapy, counseling, etc.
5. Correspondence regarding your client’s case
6. Financial records
7. Receipts of valuables
Hospital - Internal Records:
These are records the hospital keeps, and very little is ever heard about them. In certain states, some of these records are protected by law and not available.
1. Operating Room Log
This is a record kept by the head operating room nurse. It records everything that went on and who was in the OR, including the pre and postoperative diagnoses and the names of all nurses, anesthetists, and personnel who went in and out of the room. From this log, you can learn what actually happened (not the doctor’s version as found in the operative report) and the names of witnesses, who can give a true account of events.
2. Morbidity and Mortality Conference
Extreme problems with a patient or unexpected death may result in the medical staff convening a Morbidity and Mortality Conference. Here doctors speak out frankly about what was done wrong and ways to prevent it from occurring in the future. Frequently, the minutes of these meetings are not available, even with a court order.
3. Tissue Committee
This committee reviews surgical pathology reports on specimens removed during surgery to check on the necessity of the operation. Often, this committee will find the doctor’s diagnosis incorrect, and the surgery should not have been performed.
4. Infection Committee
This group monitors infections occurring within the hospital and discusses methods of prevention. If the doctors on this committee are critical of treatment your client received, it will greatly enhance your case.
5. Tumor Committee
Monitoring of diagnoses and treatment of cancer patients is the primary focus of this group. If there is a question as to timeliness or accuracy of diagnosis by the treating physician, the records of this committee could be beneficial.
6. Medical Records Committee
The Joint Commission on Accreditation of Hospitals has established strict rules and requirements on how a hospital is to keep, maintain, and preserve records safely. Periodic reviews of medical charts for deficiencies, inconsistencies, and alterations are conducted by this group.
7. Credentials Committee
This committee reviews the qualifications of all doctors, who apply for staff privileges. While hospitals are not generally liable for what an independent doctor does in each case, the hospital does have an obligation to be sure the doctor is qualified to exercise the privileges accorded him or her and to check his or her performance periodically. If the records of the Credentials Committee indicate the doctor was not qualified to treat your client, the hospital may also be liable for the injuries sustained by your client.
8. Quality Assurance Committee
Once a doctor is admitted to the hospital staff, his or her performance is monitored. If your client was a victim of malpractice, it can be assumed, the case was discussed by this committee. You may also find this doctor was in trouble with the credentials committee before, for the same type of malpractice.
9. Medical Staff/Department Meetings
In smaller hospitals, the medical staff meets periodically to discuss cases. In larger hospitals, departmental meetings are held for the same purpose. In either case, minutes are written and maintained as permanent records.
These are only a few of the many internal hospital records, which may contain valuable information. In order to encourage hospital staffs to improve patient care, and to protect doctors who serve on committees from reprisal, most states have passed laws making some of these internal records secret. Laws vary from state to state. In some states, you cannot obtain access to them, for any reason. In other states, some or all of them may be available; if you can convince a Judge they contain information essential to your case.
Tags: dental malpractice, expert, expert witnesses, experts, medical malpractice, medical record review, trial witnesses
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