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A new study, published in the Annals of Surgery, has determined that elderly nursing home residents may suffer more complications from major operations than other people their age.

nursinghomeBased on more than 70,000 nursing home residents, and 1 million non-institutionalized Medicare enrollees 65 years and older, it is being reported that the elderly “are frail and often have advanced medical problems, which puts them at higher risk of dying after surgery.” An example cited states that 12 out of 100 nursing home residents who had their appendix removed died within a month of the procedure, as compared to 2 out of 100 elderly people living on their own.

The study revealed that the death rates were consistently higher among people in nursing homes. Why is this? Researchers have said that we may be too aggressive with surgery in nursing home residents, that they are frail and often have advanced medical problems. This puts them at a higher risk of dying after surgery.

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You suffer an injury and need surgery. You have to rely on your surgeon to play it straight with you. Besides a second opinion, never a bad idea, what else can you do? Far down on your list of fears: not getting the surgery the doctor tells you that you are getting.

But, in massive numbers, that seems to have happened in New York. There are currently dozens of new lawsuits, alleging medical malpractice, pending against a New York based orthopedic surgeon, with about another 100 cases being discussed.

Ten of the current lawsuits filed allege that the doctor performed surgery, but intentionally did not treat, or improperly treated, his patients’ injuries. While those complaints stem from a surgery performed, there are yet other complaints that allege a surgery was never performed. In one particular case, a patient went to the surgeon because of shoulder problems. A “shoulder reconstruction” was performed, but when the patient’s pain and problems continued, she sought a second opinion from another doctor. After a battery of x-rays, it was determined that there was no evidence whatsoever that the surgeon performed a shoulder reconstruction, such as screws, anchors, or a fixation device. That patient further claims that the doctor injured her nerves during the surgery, and as a result, she now has permanent hand numbness, and problems grasping things.

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Over 36 million Americans are currently over the age of 65. By 2050, that number is expected to raise to 86.7 million. We have an estimated 1.4 million residents living in 16,000 nursing homes in the United States. Incredible statistics.

This problem did not sneak up on us. We all knew that our population was aging. It is a great thing. People are living longer and more productive lives. Today, 80 is the new 60. But there are byproducts of civilization’s leap forward. We keep saying we realize there is a problem with nursing home abuse and neglect. But the problem is getting better, not worse.

In nursing homes and assisted living facilities, the most common problem is not abuse, but negligence: care and treatment by nursing homes that just will not spend the time to provide a reasonable and humane level of care. Nursing home residents are also getting run over with overmedication (“Here, have some Seroquel”), and financial exploitation. The elderly are also at risk of improper monitoring and post-operative care, following their return to the nursing home after surgical procedures. Less common – but still all too common – is mental, physical, emotional and/or sexual abuse. Any of these things can have a devastating effect on nursing home patients. Old equals vulnerable in far too many cases.

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According to a recent article published in the “Journal of the American College of Radiology,” the rapid growth of diagnostic testing appears to be placing physicians at greater risk for medical malpractice claims. The reason: test communication failures. As clinical evaluation often depends on diagnostic tests, it is imperative that diagnostic physicians notify the referring physician of any urgent or unexpected findings. The result in failing to do so: a medical malpractice claim.

The article referenced a study in which it was demonstrated that between 1996 and 2003, malpractice payments related to diagnosis increased by approximately 40 percent (40%). Contributing factors in malpractice cases associated with communication failures include, for example, failure of physicians and patients to receive results, delays in report findings, and lengthy turnaround time. Referencing data from the National Practitioner Data Bank (NPDB), the authors found that the total indemnity payout across all medical specialties for U.S. claims, related to these types of communication failures, increased from $21.7 million in 1991 to $91 million in 2010. Linear regression analysis of data from 1991 to 2009 indicated that communications related claims payments increased at the national level by an average of $4.67 million annually.

Over the same period, NPDB data showed that communication failure awards accounted for an increasing proportion of total U.S. malpractice awards for all providers. The proportion increased by a factor of 1.7, from 0.93 percent in 1991 to 2.31 percent in 2009.

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The strict locality rule requires doctors to apply the standard of care specific to the community in which the medical care was given. This doctrine began after the Civil War where courts were loathe to apply the same standards to country doctors as they would to urban doctors that have access to the latest information.

Whatever may have justified the strict locality rule a hundred and forty years ago, that justification perished even before Al Gore invented the Internet. No lawyer would argue to a jury that medical standards change based on the community where the medical service is delivered. Still, doctors’ medical malpractice lawyers in Maryland have long claimed that the locality rule is codified by the Maryland Health Care Malpractice Claims Act. Thankfully, this notion was dispelled last month by a Maryland District Court judge.

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Most hospitals have three categories of doctors practicing medicine in their hospital: (1) a doctor who has privileges at that hospital; (2) salaried employees and (3) independent contractors. In emergency rooms in Maryland, most of the doctors that are providing treatment are independent contractors.

Of course, patients don’t know this. In fact, if you polled members of the Maryland State Bar Association, I think you would find the average Maryland lawyer does not know this either. So the question is can the hospital hide behind its independent contractor relationship with the ER group? The question hinges on whether malpractice lawyers can hold hospitals vicariously liable for its contractors’ negligence under the theory of ostensible/apparent agency. Certainly, hospitals argue for the application of the rule that it should be absolved of liability because the ER doctors are independent contractors over who it has no control.

Maryland follows the apparent agent theory set forth in the Second Restatement of Agency. Section 267 says that:

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The National Practitioner Data Bank (for short: NPDB) is an electronic repository containing doctors’ malpractice settlements and judgments that the feds have maintained for 15 years. It also includes adverse peer review actions against licenses, clinical privileges, and professional society memberships of physicians and other health care providers and Medicare and Medicaid exclusion reports of sanctions against doctors for fraudulent billing.

This database – while not as complete as it should be – has been a huge weapon on both sides of the malpractice debate to separate fact from fiction. Federal law dictates that all medical liability payments and certain adverse actions must be reported. The NPDB makes some of this information available to hospitals, state licensure boards, some professional societies, and other health care entities under certain prescribed circumstances.

The public also had access to the database until this month when the government shut down public access to this data. The public never had unfettered access, but the NPDB has long been providing access to its reports with the names of the doctors, patients, and hospitals redacted.

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Unless you are in the health care profession or dealing with the health care profession, it is hard to appreciate the deference given to medical records. Doctors believe – correctly in most cases – that looking at a patient’s medical records can tell you exactly what should come next in the care and treatment of that patient.

In spite of this, the Indiana Supreme Court wants to impose liability on doctors and hospitals for losing medical records, rejecting the idea of a medical malpractice claimants’ tort for losing the records themselves.

This opinion was the result of a medical malpractice claim filed by a woman who had complications after her son’s emergency cesarean birth in 1999. The Plaintiff brought a separate damages claim against the hospital for losing the records, which made it difficult to bring a birth injury claim against her obstetrician.

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…Because even Texas Governor and presidential candidate Rick Perry thinks so. In his quest to win the Republican presidential nomination, Perry giddily brags about the putative benefits of malpractice and other tort reforms that have effectively choked serious malpractice victims in Texas. But even Governor Perry agrees that tort reform at the federal level is a bad idea that violates the 10th Amendment to the Constitution, which limits the role of the federal government. If Governor Perry is not in a scheme to vacate malpractice victims’ rights to recover what a jury believes they should, it is just not going to happen.

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A Massachusetts appellate court ordered a new trial after the trial court had granted a doctor’s motion for a directed verdict in a medical malpractice case.

Classic malpractice case. Patient goes to an ear, nose and throat (ENT) specialist who diagnoses a voice disturbance and reflux esophagitis. Patient gets speech therapy. Critical time passes. He gets a second opinion and finds out he has cancer, metastatic non-small-cell lung carcinoma. Tragically, he dies.

The trial judge found that Plaintiff’s medical expert witness, a radiation oncologist, had failed to provide testimony specifically staging Plaintiff’s loss of chance claim submitted to the jury. As I have written in the past, Massachusetts has a more liberal lost chance loss than Maryland does.

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