Telemedicine and Malpractice

Telemedicine requires interaction and communication between patients and doctors over devices such as phones, computers, tablets, and applications like Skype. While it might seem to be a fresh and upcoming technology, telemedicine has in fact been practiced over the telephone, in the United States for nearly 50 years. With advances in technology, telemedicine is anticipated to grow exponentially in the following couple of years.

The risk for potential malpractice litigations grows as telemedicine grows in popularity. Concern stems from the fact that there may not be a face-to-face assessment together with the medical advice that's given. Telemedicine has wide support among both political parties and is outlined in the Affordable Care Act. Many supporters argue that telemedicine can increase accessibility to healthcare while also substantially reducing costs.

The number of litigations associated with telemedicine has been comparatively low. Experts, however, are anticipating that number to climb as telemedicine grows in popularity. Many malpractice cases involving telemedicine have contained nondisclosure agreements so real numbers and particular issues or concerns and have been settled are difficult to assess.

For more information regarding telemedicine and the law, contact us today!

Petextrians - Dangers of Distracted Walking:

The proliferation of our electronic devices, such as smartphones, has allowed humankind to keep in touch with a universe of information at a finger swipe.  This has not only given rise to the problem of distracted driving, but distracted walking as well.

We have all seen people wandering down a city sidewalk never taking their eyes off of their screen.  ABC News has reported that this trend has caused an increase in injuries and even deaths to people that are walking while distracted.

The problem is not simply these distracted walkers walking into objects or other people while on the sidewalk, but also when they attempt to cross a street without noticing the color of the traffic signal, resulting in pedestrians being severely injured or killed by being hit by traffic.The fatality rate for pedestrians killed while using a handheld device has risen from 1% in 2004 to 3.5% in 2010.  The number of people injured while walking and using cell phones has doubled since 2005.

State and local governments have become concerned over the increases in deaths due to distracted walking.  Some have taken action including lowering speed limits for cars in some urban areas, fining people who are caught while walking distracted, and initiating awareness campaigns.

People who have caused injuries while walking distracted can be sued, according to Find Law.  People who walk into traffic while using their phones can be found at fault for the accident and, at the very least, find their awards reduced by a jury.

Most importantly to remember is, when using the phone while on a city street, it is best to stop walking and get out of the way of pedestrian traffic until finished.

Contact us for all your medical legal needs. 

Nondisclosure Agreements in Medical Malpractice

The amount of a financial settlement in medical malpractice cases often gets a lot of coverage in the media, especially if it is in the millions.  However many settlements include nondisclosure agreements.  Those cases rarely receive any attention even if they can have widespread or significant consequences.

Researchers at the University of Texas recently found that nearly nine in ten settlements withing the university health system involved nondisclosure agreements.  The University of Texas medical care system provides medical malpractice insurance for more than 6,000 physicians at six campuses in five different cities in Texas.   

The Journal of the American Medical Association recently reported on the study that was done by these University of Texas researchers.  Of the time periods that were studied, researchers found that there were 715 medical malpractice claims closed, and 150 settlements were reached.  Nearly 50% of the nondisclosure provisions prohibited discussion by patients and family about the details of the medical errors.  In 9% of these settlements, doctors and hospitals were also prohibited from discussing the cases and any related medical errors.

Although the study focuses on just one medical system, the information can be pertinent to other large medical systems and the healthcare industry as a whole.  Preventing the disclosure of important information, especially to state boards, can have negative long-term effects.  For example: future patients of the physician will not have access to pertinent information regarding the physicians past record; and hospitals cannot address problems or take steps to correct them if all relevant information is kept confidential.

Many healthcare professionals agree that while nondisclosure agreements are legally valid, they can have a negative effect on patient safety because they discourage honest and open discussion of medical errors or mistakes.  It may be time to reevaluate the inclusion of nondisclosure agreements in medical malpractice settlements.

Tell us what you think!  Contact us today.

Do You Need A Medical Record Review For A Nursing Home Resident?

One of the first steps to take if you suspect that abuse or negligence has taken place at a nursing home, is to obtain the medical records and request a medical expert do a medical record review.

A medical record review can help determine if the standard of care has not been met by the physicians working at the nursing home and, if mistakes were made, what the mistakes were.

Obtaining medical records is not always easy due to HIPAA regulations.  In addition, there is confusion regarding laws that are applied to obtaining medical records from a nursing home facility.   There are laws that state a patient or a patient’s authorized representative is entitled to the medical records.  A patient or patient’s representative has a right to view the medical records and any other records that are used during the care, recuperation, or treatment of the patient. An authorized representative for the nursing home resident must be specified on the resident’s contract when admitted to the facility.  A nursing home resident also has the right to state that the medical records are to remain private.

Tips for Seeking A Medical Record Review:

• You do not have to give the facility the reason that you want the medical records
• Keep records of any requests for a medical record review from a medical expert
• Ask for the medical record immediately if you have any reason to think you might need a medical record review

Contact us for additional information or for a consultation.

Surgical Center Found Not Liable For Uninsured Physician’s Mistakes

Dr Richard Kaul, a physician trained in general surgery, anesthesiology, and interventional pain management, practiced in New Jersey until 2012 from 2002. In 2014, the New Jersey State Board of Medical Examiners revoked his medical license after it was determined that he performed back operations without required training.

A former patient of his that he had performed a spinal fusion on in 2005 filed a suit against the Market Street Surgical Center as well as Dr. Kaul.  The patient argued that Kaul improperly placed surgical screws in the patient's foot which resulted in pinched nerves that made it permanently impossible for him to walk normally.

A trial court found Kaul guilty and awarded the patient $750,000, but the claim against the surgical center were dismissed. The patient appealed, but the verdict was upheld. New Jersey state law requires that physicians carry medical malpractice insurance, however, the law stipulates that penalties for not having insurance come from the New Jersey Board of Medical Examiners. The court ruled that surgical facilities could not be held liable for damages. In addition, physicians weren't required to disclose to patients that they were uninsured. The New Jersey Supreme Court ruled, legal damages were not intended under the law.

In light of this recent decision, Kaul announced that he's pursuing reinstatement of his medical license and he continues to run a medical consulting company.

For more information, contact us today!

Digital Records Spark Debate About Whether Patients Should Be Able To See Their Doctor's Notes

The handwritten notes of physician used to be just seen by clinicians. Yet, today's electronic medical records now mean that laboratory results and even medical images are readily available and easily shared. Almost every facet of health care is currently digital which is igniting debate about whether patients should have the ability to see their physician's notes.

OpenNotes, a trial initiative set at 4 distinct medical centers allowed over 20,000 patients accessibility to the notes of 100 primary care doctors.

The trial results imply that patients did benefit from this access. After one year the notes had been read by four out of five patients. A bulk of these surveyed said they felt more in control of their care and had a better understanding of their care.

The trial also found that patient accessibility had little to no influence on doctors' ability to do their work. Doctors who were apprehensive about OpenNotes, are now more welcoming to the notion.

One issue doctors have regarding opening their notes to patients is the need to spend extra time, that they don’t have, with patients explaining their notes. Moreover, understanding that patients will have access to these records could affect how doctors document information. For example, if a patient is found to have a mass on a chest x-ray, clinical practice would be to write down all the possible diagnoses. However, if a patients sees "cancer" among those possibilities, it could result in unnecessary worry and stress to a patient. Doctors could end up altering the documentation from a manner that is exact to a manner in which the information in a readily understandable to patients. There is also a concern that patients could post notes to social media which could expose physicians to criticism.

Many factors must be taken into consideration when choosing whether to share notes with patients. For more information regarding the risks of open notes, contact us.

Patients, Communication, and Malpractice

Malpractice cases involving physicians can occasionally revolve around objections to an unexpected outcome rather than any actual injury or substandard care. 

The Doctors Company, a physician owned insurance provider, analyzed claims filed against orthopedists that resolved between 2007 and 2014.  They found that the top patient claims involved claims of improper management after surgery (16%), followed by diagnosis issues – delays or misdiagnoses (13%).

Upon further analysis, physicians at The Doctors Company found that in nearly 33% of the medical malpractice cases they surveyed, patients did not comply with the treatment plans which were provided by their physicians.  In addition, patient decisions contributed to additional complications in nearly 29% of the cases.

In a significant portion of the cases, patients did not follow instructions, did not go to follow-up appointments, or did not comply with restrictions on activities.  In a slight majority of those cases, documentation by physicians precluded patients’ claims that surgeries were not performed correctly or that they received inadequate care.

Insufficient communication between physicians, patients, and patients’ families was also found to be a factor in patient non-compliance in 12% of claims.  Insufficient communication can include lack of a common language, a poor interpersonal connection between the physician and patient, issues concerning informed consent about the risks of surgical procedures or medications.

Even if adequate care is provided, healthcare professionals must understand that a medical malpractice claim can happen if inadequate communication affects a patient’s expectations, post-surgery actions, or understanding of risks.  Physicians must make effective communication a priority in their practice.

Contact us for more information regarding medical malpractice risks.

State Laws and Institutional Policies for Student Athletes' Head Injuries Now Being Tested in Courts

The challenges brought about in sports medicine liability present many unique ethical and legal questions.  This is especially evident in the context of school and youth athletics.  There has been a lot of media attention, surrounding professional football players in particular, regarding the detrimental effects of repetitive concussions.  However, research shows that children and teenagers actually are more likely than adults to suffer from concussions due to their developing brains and the longer time required for youth to heal from such injuries.

Between 2009 and 2014, all 50 states have now adopted laws regarding concussions in student athletes, including when an athlete can safely return to play following a head injury.  These laws vary from state to state, but typically include three main components:

1.      Education for coaches, athletes, and parents

2.      Mandatory removal of injured student athlete from play/practice

3.      Mandatory implementation of protocols for determining return to play – usually 24hr minimum rest period and clearance from a medical professional.

These laws are now being tested in the courts.  This past spring the New York Times reported on a potential class action lawsuit pending against the Illinois High School Association challenging that organization’s head injury policies.  They are not seeking monetary damages, but rather changes to the head injury policies.

Lawsuits such as these have the potential to define the best policies and practices for youth sports programs.  They can also help to define the baseline duties and standards of care for medical and other professionals who are making decisions in regards to prevention, treatment, and return to play considerations for student athletes.

Please contact us should you need a medical expert with experience in all aspects of sports medicine.