Philadelphia Medical Malpractice Attorney

Via Eric B. Mayer’s Twitter feed, I saw that a few days ago the Wall Street Journal’s blog for working parents, The Juggle, posted on a hot legal issue these days, “Should Pregnancy Be Treated as a Disability?”

A recent study by a University of Dayton law professor, Jeannette Cox, asserts that pregnant women should be covered by the Americans with Disabilities Act, to protect them from being fired or forced to perform labor that could be harmful to mother or child. (The paper is forthcoming in March in  the Boston College Law Review.)

The ADA doesn’t recognize pregnancy as a disability, leaving pregnant women physically and financially vulnerable on the job, concluded Cox, who studies employment discrimination. She found that pregnant women are at risk for losing their jobs when “reasonable adjustments” aren’t made, such as retail workers fired for drinking water at work or pregnant police officers forced to perform rigorous assignments (while injured officers were given lighter duty).

She’s not kidding about “water at work” — I’ve heard of plenty of cases about pregnant women whose employers denied them basic necessities like water or chairs or bathroom breaks. Professor Cox’s idea is eminently sensible, of course, because there’s really no difference between a complicated pregnancy and the types of permanent disabilities covered by the ADA, except that the former is usually temporary.

In general, a woman with an uncomplicated pregnancy is unlikely to need anything more than the types of “accommodations” most of us take for granted, like drinking water when we’re thirsty or sitting down when we need to rest our legs. Pregnancy usually becomes an issue in the workplace in two circumstances: either the employer started imposing extra restrictions on the pregnant employee (sometimes as a means to force the pregnant employee out and thereby avoid Family and Medical Leave Act duties, and sometimes just out irrational prejudice in violation of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964) or the pregnant employee developed a complication like pre-eclampsia, placenta previa, or gestational diabetes, and so has a weight/lifting restriction imposed upon them by their doctor.

At that point, the employer can either accommodate the pregnant woman, force her to take whatever family leave is available to her (often exhausting it before the birth of her child), or try to fire her. A disturbing number of employers do the latter two.


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The Philadelphia Inquirer today profiles an issue of disturbing importance to doctors and malpractice insurance companies: the legal right to lie to patients with impunity.

Of course, they don’t describe it that way, they describe it like this:

Many doctors feel that an apology – accepting responsibility for errors, telling what went wrong – is a dramatic advance and the right thing to do since doctors have long been loath to admit mistakes.

But they say the trend will continue only if doctors know they can speak openly, without fear of being bludgeoned in a lawsuit.

“Isn’t that a little like testifying against yourself?” asked Jim Redmond, head of legislative affairs for the Hospital Association of Pennsylvania.

Let’s get one thing straight, Jim. I’m assuming you’re referring to the right against self-incrimination by mentioning “testifying against yourself.” That right protects criminal defendants from being punished for refusing to confess to their crimes. Outside of that narrow circumstance, people ‘testify against themselves’ all the time.

If you run a red light, hit someone, then jump out of your car and exclaim, “I’m so sorry, I didn’t see the light change, are you okay?” that can be used against you in court. If you slip and fall on an olive oil spill at the grocery store and the manager comes out and says, “We’re so sorry, somebody should have cleaned that up,” that can be used against them in court.

It’s pretty simple: with a few exceptions relating to constitutional rights, what people say outside of court matters inside court. Why? Because what people say matters in real life outside the courthouse. It matters that you admitted not seeing the light and the store manager admitted someone should be cleaning up the floor — do we want our courts to be nothing more than a collection of legal fictions with no relationship to the real world? Why should we pretend that someone didn’t say something they did?

It’s important that we all understand exactly what doctors, hospitals, and more importantly their insurance companies are demanding: they want a special exemption from a basic principle of law and evidence that’s applicable to everyone.

But there’s another, more insidious, issue underlying the “medical apology” lobbying. To see it, let’s dive into the facts of the case described by the Inquirer:

Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces. …

The newborn needed to be fed intravenously. Her doctor threaded a catheter no thicker than a human hair through her veins, intending it to stop where her biggest vein reached the heart. The nutritional fluid was so concentrated that it needed the largest possible vein and maximum amount of blood to dissolve safely into the bloodstream.

Her heart was the size of an adult thumb, and the catheter went a few millimeters too far, entering the heart. In the vein, the blood flow keeps the catheter away from the vessel wall. But inside the heart, blood doesn’t move as rapidly, and her catheter rested against a heart wall.

The fluid actually seeped through the wall, into the sac surrounding her heart. That sac began to fill with fluid – a teaspoonful, but enough to stop the heart.

A chest X-ray is always taken to confirm proper placement. But in Destinee’s case, the X-ray wasn’t read in time.

When processing the X-ray, the technician clicked on the wrong baby’s name, realized it, but when she clicked again on the correct name, a drop-down screen that normally auto-populates with data had to be filled in manually, which the technician wasn’t accustomed to doing.

She confused the birth date with the film date, since they were close together. As a result the X-ray wasn’t seen in a timely manner or in context.

That is blatant, unambiguous malpractice. When my twins were in the NICU, they, too, received intravenous feeding (“Total Parenteral Nutrition”), and indeed the technicians took dozens of x-rays every time the catheter was placed anywhere near the heart. It’s one of the more dangerous moments for the baby; everyone from the technicians to the nurses to the doctors knows that, and they’re supposed to be on guard.

An aside: in the comments to the Inquirer story, a number of readers make arguments like “At 29 weeks and 1.5 pounds, this baby should have never lived as long as it did. Hard to say but it’s true.” Rubbish. Destinee was small for gestational age, and she had a nuchal cord, but the odds were still in her favor. My twins were 26 weeks. One was 1.625 pounds and had a nuchal cord. Years later, they’re both alive and doing well. NIH has a tool for predicting outcomes in extremely premature children, and it tops out at 25 weeks because the odds of survival rise so rapidly after that.

In addition to the malpractice claim, there’s likely a ‘corporate negligence‘ claim against the hospital (see Thompson v. Nason Hosp., 591 A. 2d 703 (Pa. 1991)), too, for having inadequate procedures to confirm the x-ray was timely reviewed. Abington Memorial Hospital should have had adequate policies, procedures, and electronic health records systems to ensure that, even if the technician did make that type of mistake, the problem would be caught in time. Healthcare researchers often describe medical errors in terms of “the Swiss Cheese Model:”

The ideal system is analogous to a stack of slices of Swiss cheese. Consider the holes to be opportunities for a process to fail, and each of the slices as “defensive layers” in the process. An error may allow a problem to pass through a hole in one layer, but in the next layer the holes are in different places, and the problem should be caught.

In many ways, Destinee’s death was due more to the lack of enough “layers of cheese” than to the technician’s mistake. Humans are mortal. They make mistakes, have errors in judgment, and mix up dates and numbers. At a hospital is supposed to ensure that these mistakes don’t lead to tragic outcomes by implementing many “layers of cheese,” which Abington apparently failed to do here.

I write all of that so everyone reading knows that this case doesn’t involve much debate about the standard to which doctors are held. It was malpractice, pure and simple. 
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The New England Journal of Medicine released a new study in today’s issue, Malpractice Risk According to Physician Specialty, which concluded:

There are few recent estimates on the likelihood of malpractice claims and the size of payments according to physician specialty. Using physician-level malpractice claims from a nationwide liability insurer, we found substantial variability

Last month the American Journal of Medicine published a new study (“Longer Lengths of Stay and Higher Risk of Mortality among Inpatients of Physicians with More Years in Practice”) with the unexpected conclusion that hospitalized patients were more likely to die or stay long in the care of an experienced physician than in the care of a recent graduate from residency:

According to findings in the American Journal of Medicine, patients whose doctors had practiced for at least 20 years stayed longer in the hospital and were more likely to die compared to those whose doctors got their medical license in the past five years. …

Over the course of the study, there were 59 different attending physicians. The researchers divided them up based on how long they were practicing: five years or less, six to 10 years, 11 to 20 years, or more than 20 years. …

At first glance, compared to patients with the newest doctors, those with the most experienced physicians had more than a 70 percent increase in their odds of dying in the hospital and a 50 percent increase in their odds of dying within 30 days.

However, when the researchers took into account how sick the patients were, they found that only the sicker patients — those with complicated medical problems — were at higher risk in the hands of the more experienced doctors.

Southern’s group also found that while the doctor’s experience played a role in how long patients stayed in the hospital, it also mattered how many hospitalized patients he or she was taking care of.

When doctors weren’t very busy, they kept patients in the hospital for roughly the same average time no matter how many years of experience they had. But when they did have a lot of patients to see in the hospital, those with more than 20 years of experience kept patients there about half a day longer than their peers who’d been practicing for less than five years.

Description from Reuters. The authors suggested that the younger doctor’s “familiarity with more current guidelines and practices” explained the difference, and suggested requiring periodic re-certifications. Scepticemia notes some possible confounding variables and sample size issues, but on the whole the study’s conclusions look robust.

We have a fair amount of experience investigating medical mistakes around here, including malpractice by hospital residents, so let me offer another possibility.

There is a misunderstanding about medical malpractice law which goes like this: if a doctor is faced with multiple potential diagnoses and treatments and the doctor chooses the wrong one, the doctor will be liable for medical malpractice.

Such myth is not and has never been the law.
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When I was in law school, I took Federal Courts, a notoriously difficult and complicated class, with Laura Little, who taught it with grace and style. (Law students, take note: she wrote a commercial outline with rave reviews.) Afterwards, I told her how much I liked the class, and asked her what I should take next (law students, again take note: great way to get recommendations for classes) and she pointed me to Michael Libonati, whom she said was “probably the smartest teacher on the faculty.”

With a recommendation like that, I dutifully took his State and Local Governments class, not realizing until I was in the class that it wasn’t merely an interest of his, but a subject on which he had written a four-volume treatise.

Anyone who studies State and Local Government law as a field comes quickly to a simple realization: there is even less “law” among states and municipalities than there is “international law” among nations. Every state conducts itself in an entirely different manner, and within states the law is changed to suit the circumstances. In Pennsylvania, for example, doesn’t have just cities or townships. As the Pennsylvania Legislator’s Municipal Deskbook says, Pennsylvania has one first class city, one second class city, one second class-A city, 53 third class cities, 961 boroughs, one incorporated town, 1,548 townships (91 first class; 1,457 second class), 501 school districts and 2,015 authorities, with different rules applicable to each of them.

That sort of diversity of legal relations isn’t necessarily a bad thing — Philadelphia, Pittsburgh, Harrisburg, Erie, Altoona, and rural communities with fewer than 5000 people are not merely different cities, but different types of cities, and so need to be governed differently — but it does make it exceedingly difficult to glean any sort of “legal principles” from the laws of states and local governments. Tailor-made law is more political policy than legal theory.

Before, during, and after law school I’ve always been a bit of a legal realist. At some point I was grousing to Prof. Libonati about a handful of state Supreme Court opinions about zoning law in which the wealthy real estate developers always on their challenges against the local boards but the individual homeowners always lost when I asked him, “is anything in the law real or are these opinions all just rationalizations?”

Burdens are real,” he replied briskly as if he had considered and answered similar questions before. “Burdens decide cases.”

Which brings me to the inspiration for this post. I hadn’t intended to write again so recently about emergency medicine malpractice, but last week Walter Olson sent WhiteCoat the opinion in King v. St. Barnabas, a first-responder negligence case in which a New York appellate court reversed the trial court’s entry of summary judgment in favor of the defendants. As the opinion recounted:

In this case, involving allegedly negligent resuscitation efforts by a team of first responders, we revisit the vexing question of the degree of certainty necessary to establish legal or proximate cause in a medical malpractice action.

By definition, victims requiring resuscitation are found in grave condition from which the likelihood of recovery may be negligible. These circumstances, however, cannot excuse first responders from all responsibility when they fail to abide by professional standards. Negligent resuscitation attempts — while not a but-for cause of the victim’s distress — may nonetheless contribute to a death so as to make the imposition of liability appropriate. …

In February 2009, defendants moved for summary judgment dismissing the complaint, arguing that the opinion of their medical expert established that the emergency medical treatment rendered to Murray was within accepted medical standards, and, in any event, had not contributed to his death.

[Defendants’ board-certified emergency physician expert] noted that when the first responders arrived on the scene, they found Murray to be in an asystolic state. He noted that “asystole is an ominous finding in victims of cardiac arrest in which the heart stops beating and is characterized by the absence of electrical and mechanical activity in the heart,” and opined that the possibility of survival from such a state “is extremely rare, especially in the absence of immediate bystander CPR.”

WhiteCoat wasn’t happy. Most everyone, WhiteCoat included (I think), agrees that it’s negligent to administer electrical defibrillation to an asystolic rhythm. Instead, it’s the standard of care to begin CPR, provide supplemental oxygen, and add intravenous lines to administer epinephrine and atropine. WhiteCoat attacks the causal connection between that error and the decedent’s death: the decedent was asystole, which is essentially dead anyway, and the odds of recovering from that — even with proper treatment — are miniscule. As WhiteCoat put it, the defendants were being sued for not performing a miracle.


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It’s conventional wisdom among trial lawyers and insurance lawyers that few plaintiffs are as sympathetic as a brain-damaged baby. The baby plainly did nothing to contribute to their harm, but has nonetheless been deprived of many of the basic joys of their infancy, childhood, adolescence, and adulthood. It’s thus presumed that, if a jury finds

Today’s Legal Intelligencer tells us what we already know: in Pennsylvania and New Jersey, patients’ right to compensation for injuries caused by medical malpractice is dying. Not a quick death, mind you, like the death of patients’ rights in Texas (a punishment insurance companies and medical associations are trying to inflict upon New York),

Update, September 7, 2012: More than a year ago, I wrote “It’s possible KV will sue the FDA over [the decision not to go after compounding pharmacies] — arguing, in essence, that the FDA is disobeying its own statutes and regulations, and thus in violation of the Administrative Procedures Act …” That happened in