Top reasons for malpractice lawsuits against obstetricians

In a recent survey of more than 800 obstetrical medical malpractice cases over five years, the data showed that parents are most likely to file malpractice claims against an obstetrician (OB) citing one or more of the following three allegations:

• That there was a delay in treatment of fetal distress
• That a vaginal delivery was performed improperly
• That the pregnancy was improperly managed

The report also studied the causation of these errors.  The findings in this category were particularly interesting, and seemed to illustrate the nature of the obstetrics field—busy, fast-paced, and involving a fairly large team of physicians and nurses.  The following factors were cited as contributors to medical errors:

• Errors in clinical judgment (cited in 77 percent of obstetric malpractice cases)
• Miscommunication (36 percent)
• Technical error (26 percent)
• Administrative failures (23 percent)
• Ineffective supervision (15 percent)

These data indicate disorganization, inability to react and adapt to emergencies, and too much room for error.  Malpractice cases cost hospitals a lot of money, too—according to the study, the average malpractice settlement is approximately $947,000.

A better way

But while many obstetrics departments are struggling with efficiency and communication, one OB team seems to have gotten it right.  At New York Presbyterian Hospital/Weill Cornell Medical Hospital, OB implemented new safety policies that significantly reduced the frequency of medical errors, and reduced their malpractice payouts by over 99 percent.

These reforms are clearly a step in the right direction and could certainly be beneficial to other struggling programs.  Regardless, doctors, administrators, and parents should still take cases of suspected malpractice seriously.

Maryland and Washington, DC are among the jurisdictions that operate under the Collateral Source Rule.   The rule applies to situations where the plaintiff in a personal injury case receives compensation from third-party sources for injuries caused in an accident, medical malpractice, or other adverse event caused by the negligence of another.

The rule says liable wrongdoers may not use evidence of third-party compensation, like insurance payments already issued to the victim, to automatically reduce the money they are required to pay under the settlement.  They may not even inform the jury of third-party collateral payments made in relation to the claim.

What is fair to victims?

Some argue that under this rule, the plaintiff can receive double compensation, first from the insurance company and then from the liable party.  This results in a windfall exceeding what is needed to cover their medical bills and make them whole.

But others argue that one-third or more of the money a victim receives from the court or through legal settlement must go to compensate his or her attorney for litigation of the case.  So the additional money, beyond what their insurance company paid, still qualifies as compensation for their losses to make them whole again.

Also, in instances where the third-party compensation came from an insurance company, most likely the victim paid premiums over a long period of time to have that coverage in place.

Liable wrongdoers should not take advantage of thoughtful financial planning on the part of their victim to reduce their obligations.  Experienced medical malpractice attorneys are watchful for any invalid reductions in the value of the claim owed to their client.

Enacted in the 1940s, The Federal Tort Claims Act (FTCA) provides the legal mechanism for compensating people who suffered personal injuries as a result of negligence or wrongful actions by United States government employees.

This statute removed the power of the federal government to claim immunity from lawsuits seeking compensation for damages due to negligence or injury caused by a federal employee while on the job.  It stipulates the regulations and procedures for filing these personal injury claims and gives jurisdiction to federal district courts.  While it does not cover every type of wrongdoing by federal employees, it does include assault, false imprisonment, and abuse of process by law enforcement officers.

The medical malpractice connection

In the healthcare arena, The Federally Supported Health Centers Assistance Act of 1992 and 1995 extended FTCA protections to health centers supported by the U.S. Department of Health and Human Services, Health Resources and Services Administration (HRSA), Bureau of Primary Health Care.

In other words, employees and eligible contractors of HRSA participating healthcare centers are considered federal employees.  They are therefore immune from lawsuits for malpractice claims related to the services they provide on the job.

Patients who believe they are victims of malpractice by one of these healthcare centers cannot sue the center or provider directly.  They must file claims against the U.S. Government, which assumes responsibility of these costs.  Claims are reviewed and if necessary litigated by the U.S. Department of Health and Human Services, Office of the General Counsel and the Department of Justice in accordance with FTCA guidelines.

Injury to the spinal cord or column can result in varying levels of paralysis, depending on both the severity and the location of the damage.  It its most extreme cases, paralysis affects the entire body, rendering the victim unable to move or feel any extremities—the condition is known as quadriplegia, or sometimes, tetraplegia.  Quadriplegics often need help eating, breathing, and communicating.

While some causes of spinal cord injury include unpreventable situations such as automobile accidents, acts of violence, and sporting accidents, others are avoidable.  Sadly, surgeons and other medical professionals can also cause quadriplegia in patients if they work carelessly or fail to provide an adequate standard of patient care.  Some examples of negligent medical mistakes that could lead to paralysis include the following:

• Nicking, cutting, or severing vital nerves
• Failing to diagnose a stroke when the patient presents telltale signs
• Improper intubation
• Misplaced epidural injections
• Medication errors
• Anesthesia errors
• Failure to diagnose cervical or spinal tumors
• Failure to monitor intracranial pressure following a stroke or other trauma

Trusting the physician

When a severe complication like quadriplegia occurs, it is natural to wonder if an error by the doctor was the cause.  In fact, a recent study indicates that medical care providers are not always forthcoming about their mistakes, so asking questions and gathering information is absolutely vital, especially in the event of an unexpected outcome.  Furthermore, a medical malpractice attorney can often provide honest, professional counsel when a doctor is untrustworthy.

The modern hospital setting is a potentially dangerous place where vulnerable, sick patients go to seek help from often overworked, stressed out medical professionals.

Society expects doctors and surgeons to be super human but they are simply over-matched by the complexity and volume of perplexing medical cases they must treat and cure.

By some estimates, close to 100,000 patients die every year due to preventable errors by hospital staff.   If you or a loved one must spend time in a hospital, here are tips for protecting yourself amidst the administrative chaos:

• Make sure every healthcare professional who examines you dons protective gloves or washes his or her hands first
• Keep track of medications you are receiving and know what each pill or injection is for
• Read your patient chart and ask questions about the prescribed course of treatment
• Do not sign any medical consent form until you fully understand what procedure is being be done, by whom, and the risks

While there is a popular saying that ignorance is bliss, this adage does not hold true during a hospital stay.  In essence, you are the only one who is present for all medical consultations, paper cups of pills, and medical procedures given to you, so take an active role in your own care.

Do not feel that questioning the medical staff is disrespectful or fear you will be labeled a difficult patient.  At least do not let these fears prevent you from taking steps to prevent becoming the next medical malpractice victim or statistic.

While the majority of babies enter the world unscathed, this is little consolation to the few parents whose babies suffered birth injuries or trauma.

Birth injuries sometimes occur when obstetricians or other healthcare professionals manipulate the position or movement of the baby at birth.   When the baby is improperly grabbed, forced or prodded through the birth canal, the following kinds of birth injuries can result:

• Cerebral Palsy or brain damage due to oxygen deprivation to the baby
• Erb’s Palsy, Brachial Plexus Palsy, or Klumpke’s Palsy, which cause nerve damage affecting movement of the hands, wrists, or arms of the newborn
• Shoulder dystocia, which occurs when the shoulder of the newborn becomes lodged on the public bone of the mother and manipulation is required for correct delivery
• Caput succedaneum, a severe swelling of the scalp caused by improper use of vacuum extraction
• Cephalohematoma, an injury on the head of the infant, which causes jaundice as red blood cells break down

Legal remedies

In coping with these severe injuries, the family can face substantial medical expenses, including physical therapy, doctors, and medical equipment.

If negligence on the part of the healthcare provider caused the injuries and can be proven, the family could receive a financial settlement or jury award that compensates them for the cost of care.

If you believe medical negligence or malpractice caused your baby to suffer birth injuries, you need to seek the help of a medical malpractice attorney promptly as there are deadlines for suing for malpractice.

Preparation is the key to making the most of your initial consultation with a medical malpractice attorney.  In this meeting, the attorney will likely make an initial assessment of your chances to win a medical malpractice settlement or lawsuit. You will have a limited time to convey your circumstances.

So take the time to organize basic information and documents in advance of this meeting including the following steps:

• Get copies of your relevant medical records, x-rays, and radiologist reports
• Make a list of the names, addresses, and phone numbers of medical professionals related to your claim
• Bring copies of medical bills and health insurance statements
• Make a list of the therapies and medications currently prescribed for you
• Copy any correspondence or notices you received in connection with the medical condition in question

Building a legal case

These documents will be extremely helpful to your medical malpractice attorney.  They will serve as a basis for identifying exactly where negligence occurred or how the treatment you received deviated from the standard of care for your condition.  Negligence or reckless conduct by another towards you is the basis for any personal injury lawsuit, including medical malpractice.

Your medical malpractice lawyer will then consult with medical experts, especially those with expertise in the area of medicine relevant to your claim, to determine if your case has merit.  If the attorney takes your case, in most cases there is no upfront fee for this legal representation.  Attorney compensation is usually a percentage of the settlement received.

When a client consults an attorney to determine if he or she has a valid medical malpractice claim, in most cases that attorney must rely on the knowledge and opinions of external medical experts.  In fact, many personal injury law firms cultivate a network of experts they can call on when the need arises for a medical opinion.

Most law firms do not have someone on staff who is both a medical malpractice attorney and trained physician.  While this distinction is rare, it is the case with Michael M. Wilson, M.D. and J.D, whose Washington, DC law firm handles medical malpractice cases exclusively.

Common malpractice mistakes

Medical malpractice errors that most law firms deal with regularly include the following:

• Operating on the wrong body part or site
• Amputation of the wrong limb
• Leaving surgical instruments inside the body
• Incorrect or delayed medical diagnosis
• Damage to healthy organs and bowels during surgery

With both a Juris Doctorate (JD) and Medical Doctor (MD) degree, Dr. Wilson employs first-hand medical and legal knowledge to evaluate whether a medical mishap was an unfortunate mistake or negligence.   If the case must be presented before a jury, Dr. Wilson can explain complex medical issues and how the failure to comply with the prescribed standard of care resulted in harm to the patient.

The combination of trained physician and medical malpractice attorney inspires the confidence of clients as well as a high degree of respect by lawyers defending the negligent hospitals and doctors on the opposing side.

Experts estimate that close to 100,000 people die in hospitals every year, largely due to preventable errors.  These include giving patients wrong medications or doses, mixing up patients for surgery, and failing to prevent the spread of infections.

If the Centers for Disease Control and Prevention included medical errors on its list of leading causes of death in America, medical errors would rank sixth, behind cancer, stroke, and heart disease.

The American Association of Justice compiled statistics on medical errors from a variety of sources including the following:

• Researchers at the Harvard School of Medicine found that about 18 percent of patients in hospitals suffer injury during the course of their care and many of those injuries are life threatening, or even fatal.
• The Office of the Inspector General of the U.S. Department of Health and Human Services found that one in seven Medicare patients suffer injury during hospital stays and that adverse events during the course of care contribute to the deaths of 180,000 patients every year.
• The Joint Commission Center on Transforming Healthcare reported that as many as 40 wrong site, wrong side, and wrong patient procedures happen every week in the United States.

Despite the perception that medical malpractice lawsuits are rampant, the reality is that many victims never file lawsuits.  Of those who do, few are rewarded with big settlements.  But taking legal action is the best way to obtain justice and compensation, and motivate healthcare providers to exercise greater caution when treating patients.

Psychoanalysis or therapy sessions by a qualified psychotherapist can help people overcome deep-seated emotional problems, many of which plagued them since childhood.  Therapy patients assume that they are in an environment of trust and respect when they share these personal feelings with their psychotherapist.

For the most part, psychotherapists and psychiatrists are worthy of that trust.  But sometimes, they violate that trust and take sexual advantage of their patient.  Perhaps these sexual feelings begin innocently but then progress into sexual relations, resulting in a breech of fiduciary duty.  Taking sexual advantage of a patient is especially inappropriate because the patient is not in a position to truly consent.

Violating the code of conduct

Professional societies of psychiatrists, psychologists, and counselors have strict ethical guidelines that prohibit sexual contact with patients.  Besides being unethical, therapist-patient sexual relations open the door to a possible sexual malpractice lawsuit by the patient.  While patients have different levels of vulnerability, some may be able to successfully sue their psychotherapists for damages.

Violations of ethical and fiduciary duty are not limited to psychotherapists.  Lawyers, tax attorneys, and medical doctors are among other professions where the licensed professional can violate the trust of their clients and cross the line of propriety.

If you believe that a psychotherapist or other licensed professional took sexual advantage of you, you may have grounds for a sexual malpractice lawsuit.  A medical malpractice lawyer can evaluate the circumstances of your case to determine if you may be entitled to personal damages.