TOV Injury and Safety Blog

V.A. Hospital botches prostate cancer therapy for 92 of 116 veterans

The New York Times' Sunday edition disclosed details of an investigation into cancer therapy provided at a Philadelphia Veterans Administration Hospital.  The VA has recently acknowledged that the care was sub-standard and described the events that unfolded between 2002 and 2008, identifying 92 cases of malpractice in 116 treatments over a span of six years.

Court reaffirms holding that continuing misdiagnosis or mis-treatment does not extend statute of limitations

Brown v. Dr. Karen Milner and Dr. Dan Andrews, et al., is a very unattractive malpractice claim brought by a Ph.D., Mr. Kenneth Brown, against his treating physicians.  Brown claimed that inadequate or substandard care by his physicians contributed to a dysfunctional decade that included multiple job changes, multiple failed business ventures, three bankruptcy declarations, two divorces, and perhaps two criminal sexual conduct crimes. It will shock very few readers to learn that his malpractice claim was dismissed.  It is unfortunate, however, that the justification for the dismissal was the Michigan judiciary's refusal to consider "continuing wrong" liability.

Bloomberg reports cost of medical malpractice claims are "a drop in the bucket"

On June 16, the Bloomberg News Agency responded to President Obama's talk to the American Medical Association by citing figures from a Harvard economist showing that the total cost of medical malpractice claims is about $12 per person in the U.S.  That amounts to about $3.6 billion dollars of a total $2.3 trillion dollars spent on health care (or one in every six dollars of our gross domestic product, by some calculations).  As Bloomberg and Harvard pointed out, this makes the total cost of malpractice claims "a drop in the bucket" when compared to the total cost of health care:  even eliminating malpractice claims entirely would have a negligible impact on the runaway cost of medical care in the U.S.  The U.S.'s largerst health insurer, WellPoint, Inc., conceded the same point last month when it issued a report acknowledging that medical liability was not driving up the cost of health insurance premiums.

Appeals Court rules birth injury victim's expert's testimony too speculative

Alicia Fleming suffered catastrophic permanent injuries at birth.  Her Conservator sued her osteopathic doctors, Vance Powell, James Spencer and Richard Herman, claiming that they were negligent in managing the birth hospitalization.  Alicia was diagnosed with cerebal palsy and a seizure disorder at six months of age after a complex delivery hospitalization.  Her family's expert physicians maintained that she suffered brain injury as a result of the doctors' failure to react more quickly to symptoms of fetal distress.  The court dismissed her expert's causation testimony  that Alicia's injury resulted from hypoxia suffered during the last 12-24 hours before birth.  The Court held that this expert's causation opinion lacked an adequate scientific basis.

Two judges wipe out girl's malpractice verdict on claim of technical flaw in Notice

Sixteen year-old Heather Swanson suffered a ruptured aorta when doctors at Port Huron Hospital removed an ovarian cyst.  Her parents filed suit on her behalf, alleging that she suffers continuing digestive problems and a permanent abdominal scar as a result of the surgeon's negligence.  Swanson's claim was that as her doctor initiated the laparascopic surgery, the doctor, Jeannie L. Rowe, D.O., failed to adequately locate and isolate the abdominal aorta and failed to penetrate the abdomen in a manner that avoided puncturing the aorta. A jury agreed and awarded her a modest verdict for compensation.

Court of Appeals addresses adequacy of 14 page Notice of Intent

In Esselman v. Garden City Hospital, the Court of Appeals was again required to address a group of medical defendants' claims that the wrongful death claim against them should be dismissed because they weren't adequately apprised of the nature of the allegations against them.  The majority of the judges on the panel deciding the case agreed with the trial judge that the decedent's family's notice of intent (NOI) was adequate.  Champion of the wealthy and well-connected, Henry Saad, disagreed and would have dismissed the claim.

Supreme Court overturns lower court, reinstates malpractice verdict

Providence Hospital and Debra Wright, M.D., had convinced the Court of Appeals to overturn a  verdict finding them responsible for the death of one twin fetus and brain injury to its sibling.  The Court of Appeals had concluded that the Wilcoxson-Bey twins' injuries may have resulted from malpractice, but that the family could not prove that meeting the standard of care would have prevented the injuries.  The Supreme Court overturned that decision on a 6-1 vote, concluding that "when the record is reviewed in its entirety, there was sufficient evidence presented to demonstrate that daily fetal monitoring is effective in the vast majority of cases in detecting cord compression and fetal distress-which are events that precede cord occlusion and that signal the need for intervention to prevent injury.  The actual timing of the occlusion itself is not relevant..."

In the past decade, malpractice defense attorneys in Michigan have enjoyed success that surprised even their peers, arguing technicalities that invalidated meriotorious claims.  Perhaps the Wilcoxson-Bey case and the recent Apsey decision are evidence that the pendulum has swung and that legitimate malpractice victims are more likely to encounter a "level playing field."

Owosso woman wins 9-year old malpractice claim

Sue Apsey sued her radiologist and Owosso Memorial Hospital in Shiawassee County after her abdominal x-ray was mis-read.  She was left with lifelong crippling injuries because the doctor failed to recognize a perforated bowel and leak that was apparent in her x-rays.    Although the jury last week awarded her $2.9 million dollars, tort-"reform" caps will limit her to receiving less than one million dollars, according to her attorney. 

JAMA article relates increased risk of pneumonia to acid-reflux drugs

The Journal of the American Medical Association today published an article disclosing research that ties the routine, prophylactic use of acid-reflux drugs to an increased risk of pneumonia in hospitalized patients.  The study followed more than 63,000 patients at Beth Israel Deaconess Hospital for three years.  The drugs involved, so-called proton pump inhibitors, including Nexium, Prilosec and Prevacid, are given to an estimated 40-70 percent of hospitalized patients, with about one-half receiving them for the first time.  They are intended to prevent the development of stress ulcers, but are not currently recommended for patients who are not at high risk.

Profile of an autism "expert"

Perhaps looking at the record of Dr. Mayer Eisenstein from Chicago will shed some light on why courts have recently refused to allow testimony from some of the doctors who are willing to testify that mercury  preservative formerly used in childhoon vaccines caused autism.  Large European and American studies involving literally hundreds of thousands of children have failed to show any causal link between mercury preservatives and autism, yet some physicians continue to suggest there is a link.  If Dr. Eisenstein is typical of these "scientists," we may have a little better understanding of why the courts have been reluctant to allow them to offer expert testimony.

Malpractice claim dismissed because Notice served on DMC subsidiary has improper address

Lorean Allen was allegedly injured by the negligence of a nurse working at Harper Hospital, one of the subsidiaries of the Detroit Medical Center (DMC).  The Court of Appeals opinion does not document what Allen's injuries were:  since the case is being dismissed, we can surmise that the judges did not describe her injuries because they were severe and would have engendered sympathy for a victim whose claim is dismissed on a technicality.

The principal defendant in the case was, in fact, the DMC--who received a proper Notice at the proper address.  Nevertheless, by statute, the Notice of Intent to Sue must be served on the allegedly negligent nurse(s) at her "last known professional business or residential address" (even if the victim sues only the nurse's employer).  In this instance, the victim's attorney sent the nurse's notice to the DMC, but sent the Notice addressed to the nurse to Sinai-Grace Hospital, rather than to Harper Hospital.

Even though Allen's notice went to the DMC and it shares a corporate address with its subsidiary, Harper Hospital, and even though the notice identified Allen as a Harper patient, the court held that the notice did not comply with the statutory address requirement, and therefore Allen's lawsuit was dismissed.  In other words, the right office recieved a Notice that met the substantive requirements and properly identified the nurse and her employer, apparently, however, the duplicate copy directly addressed to the at-fault nurse was improperly titled "Sinai-Grace," and as a result the case was dismissed.  That qualifies as "reform" in Michigan.

OBTape removed from market--despite and after FDA approval

The Mentor Company of Santa Barbara, California, devised a "simple" solution to manage urinary incontinence it called a "vaginal sling."  The trade name is "OB Tape."  It stopped selling the product in 2006, and Mentor, a California company, was sold to Johnson & Johnson not long after.  Now, the device is a subject of litigation brought by women claiming that they would have been better off living with incontinence, after enduring ugly complications and undergoing as many as five operations to remove elements of the device.

Although all judges agree he is qualified, victim's doctor expert cannot testify

Marilyn and George Kiefer sued Dr. John Markley, a hand surgeon, claiming a botched surgery.    They relied upon an expert witness who split his time between hand surgery, "the closely related area" of reconstructive surgery of the extremities, and cosmetic surgery.  The expert was board certified and spent more than forty percent of his time in hand surgery, and all three judges of the Court of Appeals agreed that as a matter of fact, he was well-qualified to testify with regard to whether the Defendant complied with the operable standard of care.  Nevertheless, two of the judges agreed to strike him as a witness, contending that under a tort "reform" statute, he needed to dedicate more than fifty percent of his time to hand surgery in order to testify. 

The dissenting judge would not agree with this interpretation.  Under the law as it existed before the "Engler Majority" controlled the Michigan Supreme Court, it was up to Michigan judges to decide which witnesses were qualified to testify and what testimony would be allowed in court.  The Engler Majority allowed the insurance-oriented tort "reformers" to take away this judicial discretion by restrictive stipulations that are abitrary and in some cases irrelevant.  The net result of abdicating this responsibility is the promotion of decisions like this decision in  Kiefer v. Markley:  judges are precluded from basing their decisions on common sense and good judgment.

Court of Appeals addresses "notice" requirements in medical malpractice

Kelly Sue Rousseau died of a pulmonary embolus.  Her family argued that the young woman should have been prescribed medication to prevent a pulmonary embolus, that the doctor erred in prescribing her a birth control pill that made her more susceptible to an embolus, and that the nurses caring for her did not adequately monitor her condition.  All of the health care providers sought summary disposition, complaining about the alleged lack of specificity in Rousseau's family's Notice of Intent (NOI).

Malpractice death case dismissed as filed too late

In Lawson v. Spectrum Health, et al., the family of a woman who died after cardiac catheterizaion filed suit against the hospital and cardiologist.  The woman died in February of 2005, but her family did not appoint a Personal Representative of the Estate until April of that year.  They then filed a Notice of Intent  (NOI) in March of 2007, and filed suit in October of 2007.  The Court pointed out that Lawson needed to file suit within two years of the alleged malpractice (by February of 2007) or within two years of the date of appointing a P.R. (April of 2007).  The Michigan Supreme Court had previously ruled that filing the NOI within the two-year period after appointment of the P.R. did not extend the statute of limitations in a death case:  the NOI and waiting period requirements must be fulfilled within the two-year "saving period".

Malpractive claim arising from delayed appointment rejected

Susan Smith suffered a brain hemorrhage while vacationing in Mexico.  Physicians in Cancun performed emergency surgery to relieve the pressure on Susan's brain, and after several days, she was released to fly home.  She saw her own doctors, the Oakwood Healthcare Center, Doctors Alexandria Simpson and Curtis Simmons  within days, and they claimed to have referred her to the Michigan Brain and Spine Institute "ASAP".  A witness from the Institute denied that claim, however, alleging that Simmons only wanted Smith to be seen "within one or two weeks" for a postop appointment. 

Statute of limitations when there is a "continuing wrong"

One of the least discussed errors of recent Michigan jurisdprudence has been a deliberate confusion and rejection of the concept of a "continuing wrong".  Whether the claim is for a trespass on someone else's property, or  for a professional's continuing malpractice, there are occasions when an error occurs not just on the first day of the wrong--but also on subsequent days.  The so-called Engler Majority turned Michigan jurisprudence on its ear in the 2005 Garg case by deciding that the statute of limitations begins to run the day the first of these continuing errors is made:  a patient litigant who did not run to the courthouse steps is punished for his attempt to resolve matters without suit.

Woman who claims assault by doctor must plead medical malpractice

In Steele v. St. Lawrence Hospital, et al., the plaintiff claimed that after she sought voluntary admission to the defendant's psychiatric unit, she was abused by a male physician, Ralph Michael Kelly, M.D.  Kelly, an Internal Medicine specialist, was consulted after Steele's admission because her doctor was concerned about high blood pressure.  Kelly could not remember the exam but testified it is his practice to perform a complete physical, including a breast examination, on all patients.  Steele claimed she did not want a breast exam, that her own doctor had performed one the month before, and that Steele's exam, when performed was "strange".  She also complained that no other woman was in the room during the exam.

Verdict against doctor who delayed surgery is upheld

Myriam Velez obtained a verdict against Dr. Martin Tuma after he inexplicably delayed surgery to alleviate a blood clot in her leg.  Velez presented expert testimony that Tuma should have operated immediately upon determining the cause of Velez's complaints, and that she lost her leg because of his unjustified 36-hour delay.  Tuma's insurer presented all manner of procedural and technical obstacles and objections to the lawsuit and eventual judgment, and after eight years of litigation, the Court of Appeals rejected each and every one.

Depakote, taken for epilepsy and migraine headache, injures fetal IQ

The New England Journal of Medicine published a study this month documenting the fact that children born to women who took Depakote (valproate) scored lower on IQ tests administered at age three.  The children scored 9 points lower than children of women taking other antiseizure medications.  Only about one-half of the women taking Depakote suffer from epilepsy.  The five-year study followed 300 pregnant women and 258 children, including 53 who took Depakote.  IQ correlated closely with mothers' IQs, except among moms taking Depakote.  The mean IQ of children taking other anti-seizure meds was almost 101, but only 92 for children whose mothers took valproate.  Doctors confirmed that Depakote should never be the first drug of choice for a pregnant mother.

Court rejects malpractice claim arising from suicide

Carol Teal sued three doctors and a hospital, claiming that their premature dismissal of her husband led to his suicide.  Teal's husband was admitted to Herrick Memorial Hospital after a suicide attempt, and discharged 3 days later, after being placed back on anti-depressants and denying suicidal ideation.  He killed himself 8 days after being discharged.  The Court dismissed Teal's claim summarily, even though she presented the testimony of an expert psychiatrist who offered the opinion that Teal's treatment after the first attempt fell below the standard of care. 

Doctors and their insurers awarded $20,000.00 in sanctions

Julia Peterson brought suit against David Fertel, D.O., and John R. Schairer, D.O., alleging that they were negligent in diagnosing and treating her deceased husband.  A Case Evaluation panel agreed and recommended an award against the doctors, which Dr. Schairer accepted, but Fertel and the Peterson Estate rejected. 

Removal of "recalled" heart defibrillator cables presents difficult choice for pateints and families

In 2007, Medtronic recalled its Sprint Fidelis heart defibrillator cable because its thin wires were prone to fracture and had caused at least five patient deaths.  The cable was approved by the FDA without adequate research. Now, the cables have been surgically placed in the bodies of more than 150,000 patients, who are faced with a Hobson's choice of undergoing dangerous surgery to remove them, or leaving them intact and praying that they continue to function properly.

Sixth Circuit reinstates death claim against Providence Hospital

The family of Marie Irons sued Providence Hospital after it failed to admit Irons' estranged husband to a psychiatric unit.  A phyisican who examined the husband in the Providence E.R. had recommended admission, but apparently a second doctor counter-manded the order and the husband was discharged.  Ten days later, he murdered Irons with an axe.  The case had been dismissed in 2007 by the trial court after the St. John Health System, which runs Providence, contested the Estate's standing to sue and the application of the Emergency Medical Treatment and Active Labor law.  The appellate judges of the Sixth Circuit concluded that the lower court was in error in deciding factual questions that should have been considered by the jury.

Successor Personal Representative of Estate can file suit after limitations period has run on initial P.R.

In McGill-Kohler v. Hasan and North Oakland Medical Center, the Court of Appeals reaffirmed the right of a successor Personal Representative to file a wrongful death claim, if the claim is filed within two years of the successor's appointment by the Probate Court.  The trial court had dismissed the claim, measuring the two-year statute of limitations from the date letters of authority were issued to the original P.R.  The case had been dismissed once before, without prejudice, when the initial P.R. failed to file suit within two years of her appointment.  The Estate's attorneys took advantage of the wrongful death savings provision to secure a new limitations period by appointing a new P.R.

Court dismisses nursing home restraint case for failure to comply with malpractice "reforms"

Bortz Health Care of Ypsilanti managed to avoid a trial on the merits regarding its alleged failure to provide adequate care to  resident Lorraine Lanier.  Lanier fell and suffered serious injury while living in defendant's nursing home.  Her son claimed the fall was caused by a combination of excessive chemical restraints and a lack of supervision by defendant. 

The ultimate accuracy of the guardian/son's allegations will never be known because he failed to comply with the medical malpractice "reform" rules by filing a Notice of Intent and Affidavit of Merit, and apparently he did not comply with the shorter medical malpractice statute of limitations.  He believed that the gravamen of his claims sounded in ordinary negligence, but the court disagreed.

Court awards case evaluation sanctions against medical malpractice victim

Fiorita Moravcik sued Dr. Brian Piazza, alleging that he botched her care.  A case evaluation panel recommended that Piazza and the hospital pay $220,000.00 to settle Moravcik's claim.  All parties rejected this recommendation, and Piazza prevailed at trial. When his insurer sought sanctions, though, the trial court pointed out that the insurer had never been willing to compromise the claim, and therefore the Moravcik's rejection of case evaluation did not cause Piazza's insurer to underwrite the trial. 

Court rejects technicality involving Notice of Intent

Curtis Smith attempted to sue his surgeon, Yazdin Amaria, alleging serious complications from a botched surgery.  He sought medical records from the Doctor's office, but mistakenly addressed the request to 11 South Monroe, instead of 111 South Monroe.  The office responded with the requested records, and several months later, Smith served his required Notice of Intent at the same address.  When he didn't receive an answer, he wrote to the 11 South Monroe address, again, to inquire whether the doctor received the NOI.  The doctor's insurer responded, but did not correct the address error. 

Nevertheless, when Smith filed suit, the insurer argued that the case should be dismissed because the NOI was defective (because it was not served on the proper address at 111 South Monroe) and therefore the statute of limitations had run, permanently barring the claim.  The Court of Appeals rejected this "Loophole Larry" defense by noting that 11 South Monroe was, in fact, the "last known address" by which Smith and his attorneys had communicated with the doctor and the doctor's insurers, even if it was not the "official" address. 

Ambulance transfer of entubated patient is an emergency resulting in immunity

Alvin Provot needed to be transferred to a different facility because the ICU where he was placed on a ventilator did not have services for chronically ventilated patients.  In preparing for the transfer, he was paralyzed and placed on mobile ventilating equipment.  The ambulance attendants claimed that this equipment was functioning properly initially, however, 25 minutes into the transfer, Mr. Provot "coded" and the EMTs concluded he was not being properly ventilated.  They did not attempt to resuscitate him manually.  Instead he was transported to the nearest Emergency Room, where he was pronounced dead.

Court upholds malpractice verdict over insurer's frivolous defenses

Tim Egeler sued Bradford Wylie, M.D. and Chelsea Area Primary Care, PLLC, after Wylie prescribed an antibiotic for Egeler's wife that is contraindicated.  His wife suffered from myasthenia gravis, and the antibiotic Ketek contains a clear product warning, advising doctors not to prescribe for M.G. patients:  the warning alerts doctors to the potential for a life-threatening respiratory collapse.

Within a half hour after taking the antibiotic Wylie prescribed, Dorothy Egeler collapsed and suffered severe anoxic brain injury before she was revived.  Nine days later she was removed from life support and passed away.  The doctor's insurer denied that the respiratory collapse was related, claiming that her death was coincidental.  The jury didn't buy that and awarded that ultimately resulted in a judgment of more than $800,000.00.  The Defendant appealed arguing several claims of error:  the Court of Appeals unanimously dismissed the claims and upheld the judgment, with minor adjustments.

EMT stethoscopes commonly carry MRSA

Researchers with the Robert Wood Johnson Medical School reported in the Journal Prehospital Emergency Care that a significant number of stethoscopes carried by New Jersey ambulance responders were infected with methicillin resistant staphylococcus aureaus (MRSA) bacteria.  Many responders were unaware of the problem and "could not remember" the last time the stethoscope they carried had been cleaned.

16 of 50 stethoscopes tested were infected with the drug-resistant bacteria.  They could be effectively cleaned with an alcohol swab.  It is assumed that New Jersey EMTs are not atypical in their care of equipment or their exposure to bacteria.

13 deaths associated with Medtronic leads

Last week Medtronic acknowledged at least 13 deaths and about 2200 serious injuries that were tied to discontinued Sprint Fidelis leads, pulled from the market in October, 2007.  Four of the deaths occurred during surgery to remove the leads.  Recently disclosed FDA data indicated that Medtronic became aware of the problem with fractured leads soon after releasing the devices in 2004.  2000 legal claims have been filed against the company over the very thin, prone-to-fracture leads, however, at the moment it is protected from liability by a controversial Supreme Court decision that granted the manufacturer immunity.  The immunity was conferred by FDA approval of the device, even though the approval was "grandfathered" upon prior approval of a different device with thicker wires, less prone to fracture.

It is believed that the Fidelis leads were implanted in about a quarter million people, with thousands receiving them after the company was fully alert to, and investigating the fracture problem.  Some 150,000 people still have implanted leads, and surgeons stress that if they are to be removed, the removal should occur at a facility that handles a high volume of these surgeries. 

Another case thrown out because the patient didn't explain their negligence to the doctors in advance

Medical malpractice victims are required to give notice of their claim to the alleged at-fault doctors in advance of filing suit.  This is part of "tort reform".  Traditionally, "notices" of this nature, given before suit and discovery and before the victim has access to powers of subpoena or deposition, are considered sufficient if they simply advise the alleged wrong-doers of the nature of the victim's claim.  In malpractice cases, however, the Engler Majority established a politcally-motivated threshold so high that many claims are permanently dismissed because the victim hasn't adequately explained the nature of his or her claim to the doctors involved.  Bond and Blue Cross, Blue Shield v. Adam Cooper, M.D., Kristen McDaniel, D.O. and Botsford General Hospital is a case in point.

Breast cancer patient cannot sue over lymphedema and axillary cording

In Compton v. Pass, Pettinga and William Beaumont Hospital, a breast cancer patient sued her doctors, alleging that if she had been properly informed, she would have opted for sentinel node dissection instead of axillary node removal.  She documented that she was more than three times more likely to endure severe, permanent arm morbidity as a result of the removal of 18 lymph nodes, and argued that her permanent arm problems would have been avoided had she been allowed an opportunity to make an informed choice.

Malpractice claim based on delayed treatment of heart attack is reinstated by Court of Appeals

41 year-old Jayne Lanigan suffered a heart attack while jogging.  She was taken to Huron Valley Hospital where she was placed under the care of "cardiac specialist" Steven Belen.  She arrived at 9:40 a.m. but no preparations were undertaken to transfer her to a facility where emergency invasive bypass surgery could be performed until she was sent to the University of Michigan at about 10:30 p.m.  She claimed that as a result of this 12+ hour delay, she was no longer a viable candidate for bypass surgery and suffered serious complications including loss of the capacity to work, reduced life expectancy and ultimately a heart transplant.

Malpractice dismissal on a technicality is over-turned

Treva Lowery sued her doctors, claiming that they damaged her spleen while removing a kidney being donated to her brother.  Before any evidence was introduced at trial, the Defendants secured the dismissal of Ms. Lowery's claim by arguing that her physician expert was not sufficiently familiar with the medical facilities available in the Flint community.  The Defendants admitted that the urologist was otherwise adequately qualified to testify. 

County sought dismissal of brain-damaged child's case under Roe v. Wade

Chelsie Barker is a 10-year old who walks with a walker, cannot write her name and requires 24-hour care.  Her guardian claims that she suffered brain damage when her mother, a Wayne County jail inmate, was deprived of adequate care during her delivery.  The Jail and guards sought dismissal of Chelsie's claims, arguing that under Roe v. Wade, she was not a "person" entitled to constitutional protection.

Breach of confidentiality is a medical malpractice claim

A young woman named Schwartz was counseling with Margo Gilbert while Schwartz worked as a phlebotomist at Beaumont Hospital.  She learned that Gilbert had been hospitalized at Beaumont, and informed Gilbert during a counseling session that she had accessed Gilbert's hospital records.  Gilbert complained to the hospital, and Schwartz was fired. 

Schwartz then filed suit against the psychologist, complaining of Gilbert's breach of physician-patient confidentiality.  Schwartz did not comply with the rules governing medical malpractice, however.  The Court held that an action against a psychologist under MCL 333.18237 must comply with the tort "reform" rules regarding medical malpractice, including the shorter statute of limitations and the Notice of Intent and Affidavit of Merit requirements.

Bush exit rules make it harder to sue negligent nursing homes

Last fall, on its way out the door, the Bush administration quietly enacted a new rule that effectively prohibits state inspectors and Medicare and Medicaid contractors from providing evidence in private cases.  The rules keeping evidence out of court affect about 16,000 nursing homes and more than 3 million residents.  After we have paid to regulate and inspect these homes for the safety of residents, we are not allowed access to the information gained, in order to hold violators responsible for bad practices.  The rules are denying access to key information both on how injuries and improper evictions have occurred, and also with regard to the state of the industry's health and safety practices generally.

House Democrats seek to restore victims' right to sue over defective medical devices

The U.S. Supreme Court recently surprised lawmakers by re-evaluating thirty-year old legislation and finding that it was intended to grant immunity to manufacturers of medical devices.  In its ruling, the Court concluded that all such devices are protected from suit, even if the FDA supervision of their manufacture and approval was inadequate.  Michigan has a similar rule regarding FDA-approved medications, and a federal immunity-for-FDA-approved drugs claim is currently pending before the U.S. Supreme Court.

As MRSA infections are controlled, deadly gram-negative bacterial infections multiply

Bloomberg reported this week that hospitals are apparently making progress in limiting and controlling the occurrence of hospital infections involving  MRSA, or methicillin-resistant staphylococcus aureus bacteria.  The rate of infection, traced to inadequate sanitary practictes, has been reduced by fifty percent  since 1997, according to a new study by the Center for Disease Control and Prevention.  The study will be published tomorrow in the Journal of the American Medical Association.  MRSA germs still caused 19,000 deaths and more than 100,000 serious illnesses in 2006, alone.

Court rules vaccine did not cause autism

The New York Times reported today that a Special Master appointed to hear a case involving the federal vaccine-injury fund had reached the conclusion that the young girl involved did not suffer autism as a result of receiving a vaccine.  This decision is in line with the research that has been reported of late, including a very large and recent long-term Spanish study that showed no increase in autism resulting from childhood vaccination. 

FDA expected to restrict doctors' prescription of Schedule II narcotics

Prior to 2007, the FDA complained that it lacked "intermediate" measures to control the improper use of FDA-approved medications.  The abuse of OxyContin and other Schedule II narcotics, and the continuing death rate associated with mis-use of these medications has lead the FDA to seek public input on a plan to restrict physician prescribing of these drugs.

Hospital infections and malpractice

The February 10, 2009, Washington Post contained an interesting article by the Medical Director of Medicare's quality improvement organization in Tennessee, an Infectious Disease specialist who is also an assistant professor at the Rollins School of Public Health at Emory University.  The doctor recounts in the article his experience with an innovative program to reduce hospital-acquired infections.  He noted that prior to the initiative (which was created by pediatrician Donald Berwick's nonprofit Institute for Healthcare Improvement) for every 1,000 "device days" in his ICU, seven patients would develop bacterial pneumonia, six would develop blood infections (sepsis) and four would develop urinary tract infections.  Together, these infections made ten percent of ICU patients more ill than they were, and they added on average $25,000.00 to the average hospital bill for ICU patients.  Despite the cost and misery of these infections, the doctor considered them unavoidable and a small price to pay for the enhanced likelihood of survival from life-threatening conditions requiring intensive care.

Ingham Medical gets a break

The Court of Appeals sent the Brown v. Ingham Regional Medical Center case back to the trial court after Ingham Medical Center appealed the lower court judge's refusal to allow it to add a new expert witness.  Under the medical malpractice tort reform rules, expert witnesses must have very specific qualifications, and the Court of Appeals had previously ruled "reluctantly" that the expert originally selected and disclosed by Ingham was not qualified to testify.  Without an expert, it cannot defend the malpractice claim. 

Slick tactics secure dismissal of malpractice claim against Northern Michigan Hospital

A woman named Sherri Martin sued Northern Michigan Hospital and a group of doctors alleging that she suffered serious complications as a result of poor care by doctors and nurses after surgery.  For some reason not explained in the reported opinion, the claim against the doctors was voluntarily dismissed by Martin's attorneys:  from the context, it appears that Martin's attorneys became convinced that her poor care resulted only from inadequate communication from the post-op nurses to the surgeons.

Malpractice insurer's claims of technical defects are rejected.

The family of Donny Harrison sued Harper Hospital and Dr. Paul Swerdlow, alleging that Swerdlow provided inaequate care to their child.  Swerdlow's insurer attempted to dismiss the case alleging technical defects in the Notice of Intent filed by the family and in the qualifications of the family's physician expert witness.

Insurers' argument that wrongful death act does not allow recovery for lost household services is rejected again.

It would seem to be a Neanderthal position, but Michigan insurers, intoxicated by their success before the Engler Supreme Court, have been arguing that a family cannot collect damages to compensate them for a decedent's services.   In other words, if a mom was a stay-at-home mom and didn't work outside the house, the insurers would place no value, whatsoever, on the domestic services she provided her family.  The party responsible for her "wrongful death" would owe no compensation to the family for her "economic" value.  The Court of Appeals has twice rejected that theory in the past two months.  In Thorn v. Mercy Memorial Hospital, and again in May v. Mercy Memorial Nursing Center, el al., separate panels of the Court of Appeals unanimously rejected this argument and identified domestic services as a compensable element of economic damage.  With Justice Cliff Taylor happily--if involuntarily--retired from the Supreme Court, the potential for reversing these decisions is very small.

Court of Appeals reinstates malpractice death case

A unanimous panel of the Michigan Court of Appeals recently reinstated the death claim filed by the family of Burr Needham.  He died in the Mercy Memorial Nursing Center, where he was recovering from a fractured hip.  The cause of death was determined to be "acute morphine intoxication", and the family suggested, not surprisingly that he had been over-medicated. 

Emergency cardiac care for women is delayed?

A recent study by Tufts Medical Center in Boston examined almost 6,000 emergency calls involving cardiac symptoms in the Dallas area and found that while ambulances responded as quickly for women patients as they did for male patients, women were more likely to receive prolonged treatment by EMTs prior to delivery to the Emergency Room.   This delay increased from the average of 34 minutes in EMT care (19.9 minutes on scene and 10.3 minutes in transit) to 45 minutes for almost ten percent of patients.  Even this much delay can be catastrophic under the circumstances, and women were half-again more likely to find themselves in the class of "delayed" patients.

The investigators did not identify the cause of delay in any of these patients or an explanation of the greater likelihood of delay for women, but speculated that emergency responders simply may not recognize cardiac symptoms in women as readily as they do in men:  either because of a preconcieved expectation, or because of physiological differences between genders.