Posts Tagged ‘wrongful death’

Legal Boot Camp Class Four. Sean and Kristy’s Story: How a Jury Award is Conformed to the Cap.

Wednesday, June 15th, 2011

From the Editor. Please see our disclaimer at the end of this blog for a better understanding of the limitations of this series and our mission statement.

Last week, we published a blog about Sean and Kristy. You will recall that Sean died from excessive bleeding when the nurse overdosed him with anticoagulation medication after a major surgery. You will also recall that after careful consideration Kristy decided to file a medical malpractice claim against the nurse and her employer, the hospital.

Now, let’s skip forward.  Kristy’s Complaint stated two causes of action: survival and wrongful death. Under the survival claim, Kristy was the only named Plaintiff because she was named Personal Representative of Sean’s Estate. Only a personal representative can bring a survival action on behalf of a decedent. Kristy and Kira (Sean’ daughter) were both named Plaintiffs under the wrongful death count. Generally speaking, only a parent, spouse, or child (with some exceptions) can bring claims for wrongful death.

At the conclusion of the trial, the jury returned a verdict of 2.5 million with 1 million awarded in the survival action and 1.5 million awarded in the wrongful death action. Furthermore, in the wrongful death action, the jury awarded Kristy 1 million dollars and Kira 500,000 dollars.  All of these damages were for pain and suffering.  You will recall that Maryland has a cap on non-economic damages. The cap imposes a limitation of about 812,000 dollars when the jury’s award is for wrongful death and survival (this is regardless of the number of claims or claimants).

How will the Court reduce the verdict so that it conforms to the statutory cap? The answer is mandated by statute: the Court must make proportionate reductions in order to reduce the jury award to the statutory cap.  Here is how it works:  The total recovery in this case is 2.5 million (1 million under the survival action, 1.5 million under the wrongful death action). 1.5 million represents 60% of the total recovery of 2.5 million.  1 million represents 40% of the total recovery.

Now, 40% of the 812,000 cap is 320,800 dollars. 60% of the 812,000 cap is 487,200 dollars. Therefore, the monetary award under the survival action will be reduced by the Court to 324,800 dollars. The overall award under the wrongful death action will be reduced by the Court proportionately to 487,200 dollars.

Furthermore, proportionate reductions are necessary to conform the wrongful death award to the cap.  An overall amount of 1.5 million was awarded in the wrongful death action.  From that award, the jury gave Kira 500,000 dollars and Kristy 1 million dollars.  One million represents about 67% of the total recovery in the wrongful death action. Kira’s award of 500,000 dollars represent 33.3%. Applying these percentages to the capped wrongful death recovery of 487,200 dollars, Kira’s award will be reduced from 500,000 dollars to 160,776 (33% of 487,200) dollars. Kristy’s award of 1 million dollars will be reduced to 326,424 dollars (67% of 487,200). This is all Maryland law will permit them to recover. Justice or injustice, what do you think?

Related Posts:

Malpractice Wrongful Death Lawsuit by Couple Falsely Accused of Abusing Their Child Filed Against Children’s Hospital

Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis

Legal Boot Camp (First Class): The Story of Pam – Maryland’s Law on Earning Capacity

“Wrongful Death and Survival Actions”

Disclaimer: As is the case with all of our blogs and the writings posted on our website, we are not offering legal advice to our readers. This information in our series,Legal Boot Camp, is being presented in the hope that we can provide some education about the law in Maryland and the District of Columbia. The law in the field of personal injury (and particularly in our sub-specialty of medical malpractice) can be complex and confusing at times. Even in these two jurisdictions where we are licensed to practice, the laws and their interpretation by the courts can vary significantly. It is simply our hope that by presenting this series – Legal Boot Camp - that we can provide a better understanding of some legal principles that can come into play when bringing a civil claim or lawsuit for damages as a result of the wrongdoing of others.

For those who do not live in either Maryland or the Washington, D.C., we hope that we can at least raise some issues for you to consider when you speak with an attorney licensed to practice in the state in which you live. Many times the basic concepts of law are similar. We hope that by raising some of these issues applicable to Maryland and the District of Columbia, you will at least have a basic understanding of some terms and principles that may apply to your situation. Don’t be afraid to raise these issues with your attorney. Education – be it in law or medicine – is our main goal.
Finally, please see our introductory blog for Legal Boot Camp for a better understanding of our mission in presenting this series.

 

July 1 – New Residents, New Rules……Again!

Monday, June 13th, 2011

Last year, I wrote a blog on “The July Effect”, a long-observed phenomenon of increased hospital deaths during the month of July that was substantiated by medical data and statistics just last year. These data seemed to specifically relate these deaths to the influx of new medical school graduates into teaching hospitals as first-year residents of those institutions. The conclusions of the study seemed well-substantiated. I further elaborated on some of the potential causes of errors being made that could result in harm to patients; what I didn’t elaborate upon was the rigorous and demanding schedule that residents assume.

In 2003, the Accreditation Council for Graduate Medical Education (ACGME) instituted new policies regarding the time limitations of ALL residents, but specifically focused on the first year resident. These limitations were placed on the number of hours that residents could and should work in any given week or rotation in an effort to safeguard the health of the resident but more so to ensure the safety and well-being of patients being treated by these residents.

It is now 2011, and the ACGME is instituting even stricter limitations affecting both first year and mid-level residents; Nixon Peabody does a great job of delineating the changes in the guidelines. Much information has been published in the last year regarding the continued occurrence of medical errors despite protocols and safety mechanisms in place to protect patients (click on related blogs below). It seems that the ACGME is attempting to address some of these errors by addressing the fatigue factor of medical and surgical residents in training. The overall maximum hours per week will not change; it remains at 80 hours.  Yes, twice that of “normal” jobs. One big change is the limit on the maximum continuous duty period for first year residents; this will be decreased from 24 to 16 hours.  It will remain 24 hours for residents after their first year, but recommendations include “strategic napping.” Another change is the additional duty time, previously allotted as 6 extra hours to perform clinic duty, transfer of care, didactic training, etc.; for first year residents, these duties are to be included in the overall 80-hour work week, but after the first year, the residents will be allowed 4 additional hours. A third big change is the minimum time off between duty periods. Previously, it was noted that all residents “should have” 10 hours between shifts; year 1′s are still recommended to have 10  hours off, but they MUST HAVE AT LEAST 8! Intermediate-level residents should also have 10 hours off, but they also must have at least 8 hours off with a mandatory 14 hours off if they just completed a 24-hour shift. Final year residents are recommended to receive 8 hours off, but this is still being reviewed.  One thing that has not changed is the mandatory 1 day off in 7, averaged over 4 weeks.

Many of us watch the medical TV shows, but none of these shows really paint the true picture of medical residency training. As a Physician Assistant student, I trained alongside medical residents and medical students, alike. My training mirrored theirs in the hospital setting, and it happened well before the 2003 ACGME recommendations. There were times during my surgery rotation in a trauma center during which I worked 36 hours straight, followed by 10 hours off, then back to 10- and 12-hour days. The working hours entailed clinic time, managing daily in-patient care, many hours in the operating room, admitting patients during the overnight hours from the emergency room and emergency surgery for trauma victims, hours and hours at a time, in the overnight hours and during the day.  By the end of 36 hours, the exhaustion was indescribable. It is easy to understand how and why mistakes happen. After these crazy shifts, no one ever looked so glamorous as those who are depicted on television shows…..TRUST ME!

July 1, 2011, marks the date when over 100,000 medical residents across the USA from ACGME-accredited training programs start their training in teaching hospitals/institutions across this great nation. We should applaud the ACGME for looking at the data, analyzing studies regarding sleep deprivation, and putting forth these guidelines, not only to aid in patient safety but also to protect the health and well-being of these doctors in training. The pressures of residency are incredible. It is interesting that there was and still is opposition to the duty-hour limitations, citing oppositional rationale such as the residents do not learn enough in 16 hours, and small institutions do not have the support staff to treat all of the patients without the addition of medical resident hours.

So, who is going to fill those gaps created by the resident-hour restrictions placed by the ACGME come July 1st? Each institution will have to look at its own hospital model and decide according to current standards. In 2003, many of these gaps were filled by Physician Assistants and Nurse Practitioners; I suspect this will again be the case.  These mid-level practitioners are quite capable of providing many of the services necessary in hospital settings; they are a growing and well-respected addition to the healthcare team, and I suspect that their usefulness and potential will be more fully appreciated with the institution of healthcare reform!

For more information and Frequently Asked Questions (FAQs) regarding the ACGME guidelines, please go to the website and click on the links!

And, no matter who is caring for you or your loved one, never be afraid to ask questions about therapies and medications being ordered. Be informed!

Related Posts:

“The July Effect”: Where To Seek Medical Care When The Heat Is On

Medical Malpractice – Serious Medical Errors: Failure of the System or Just Plain Ignorance

Study Finds Regional Hospitals Often Are Better At Preventing Medical Errors Than Academic Centers – Kaiser Health News

Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US hospitals

 

 

 

 

 

 

Week in Review: (June 6 – June 10, 2011) Eye Opener Health, Law and Medicine Blog

Saturday, June 11th, 2011

 

A Word of Special Thanks…

From the Editor:

I am so grateful to my bloggers and friends at the firm for all their hard work this week. I started a  multi-week trial this past Tuesday, but in my absence, the Eye Opener kept rolling right along thanks to them. Special thanks to Jason Penn, who took over the task of making sure the schedule was kept and the blogs got posted.

Brian Nash

 

From Jason Penn -

It is time to take a look back at the week that was.  With the temperatures soaring in the Baltimore-Washington area, the Eye Opener did its best to keep pace with the thermometer.  Five posts, five days.  All while the lawyers prepared for upcoming trials.  Not too shabby, if you ask me.  Without further ado, lets take a look at retrospective look:

The Death of a Baby – Economic Realities

By: Michael Sanders

The loss of a child, particularly an infant, is one of the most difficult and painful horrors anyone could every have to deal with.  Writing about it isn’t much easier.  Nonetheless, on Monday, blawger Michael Sanders’ post provided insight into the economics of lawsuits involving the death of an unborn child.  It is truly a “must read” for anyone that is contemplating taking legal action for the loss of their child.  The interplay between gestation, age of death and so-called “survival actions” is particularly tricky.  Mike lays out Maryland’s law on the topic and gives helpful primer for parent and practitioner alike.  Read more

Can A Simple Image Guide Nutrition?

By: Sarah Keogh

Obesity in America, particularly among our youth is a serious problem.  The problem itself certainly isn’t new but the approaches to promote healthy eating certainly have been. On Tuesday, Sara Keough pulled up to the table and reviewed the new MyPlate image and its impact on America’s unhealthy eating habits.  As I am sure you know, there have been a variety of methods to improve our nation’s eating habits. In most recent memory is the ostracized food pyramid and the First Lady’s “Let’s Move Campaign” (and associated dance moves). Sara provided her perspective on the new eating tool as both an individual and a parent.  I personally am curious: for the parents out there, will this change the way you handle your children’s nutrition?  Read more

Legal Boot Camp (Class Three): Sean and Kristy’s Story – Wrongful Death and Survival Actions

By: Jon Stefanuca

On Wednesday, Jon Stefanuca provided the third installment of our Legal Boot Camp. With class in session, Jon presented the following scenario:  Last month, Sean turned 24.  He and Kristy are married. Their daughter, Kira, is 2-years old. Sean just entered medical school. Kristy’s parents support them, while Sean is in school.  Sean has never held a job.  Kristy is a stay at home mom. A month ago, Sean was driving home when a drunk driver pushed him off the road. In the accident, Sean broke his sternum. He also sustained a number of vascular injuries, which caused internal bleeding. He was rushed to the nearest hospital. Soon after his arrival, Sean underwent surgery to stop the bleeding.

Sean was recovering beautifully. Unfortunately, on his third day in the hospital, he developed rapid breathing, shortness of breath, and his chest pain got worse. A CT scan of the chest revealed that Sean had a pulmonary embolism. The physician ordered 100 mg of anticoagulation medication.  The nurse misread the order and made a mistake in its administration. The overdose caused Sean to have extensive bleeding. Sean was scheduled for discharge within the next 3 days. Instead, he died within a few hours.

What legal action could Kristy take?  Read more

Dealing with Cerebral Palsy: A Resource for Parents and Family (Part II)

By: Jason Penn

On Thursday, Jason Penn provided us with Part II of his series “Dealing with Cerebral Palsy:  A Resource for Parents and Family.”  Part II of the series takes a look at educating children with cerebral palsy.  Children that have special needs that impact his/her ability to learn at school often qualify for an Individual Education Plan.

An IEP is a legal document created to ensure your child’s teacher, staff and administration understands his learning and other limitations and utilizes the best practices to ensure that he gets the education that he/she deserves.  Curious about an IEP?  Read more

How Much Is Your Marriage Worth?

By: Michael Sanders

To finish up the week, Michael Sanders returned, and asked the question: What is Your Marriage Worth?  If you’re married, there is category of damages that you may be able to recover – damage to your marriage. It’s called Loss of Consortium and is an important element of damages in the right circumstances. It is a legal recognition that the marital relationship itself – separate and apart from the injury to the individual – is a protected interest that is deserving of compensation if it has been harmed by the negligence of another person.  Read more…

Sneak Peak of the Week Ahead:

With the weather taking a turn for the better (hopefully), and the local sports teams showing renewed vigor, we are going to keep up the pace. As you finish up this week, and turn to the next, you can look forward to the following:

  • Service dogs for children:  more than just a pet
  • Subdural Hemorrhages – “Man, is my head aching…”
  • HIV Patients:  Increased risk for developing cancer
  • Crib bumpers & safety
  • Legal Boot Camp is back in session and Part III of our Cerebral Palsy tutorial.

Have a safe weekend, Everyone!

Legal Boot Camp (Class Three): Sean and Kristy’s Story – Wrongful Death and Survival Actions

Wednesday, June 8th, 2011

From the Editor – Please see ourdisclaimer at the end of this blog for a better understanding of the limitations of this series and our mission statement.

Last month, Sean turned 24.  He and Kristy are married. Their daughter, Kira, is 2-years old.  Sean just entered medical school. Kristy’s parents support them, while Sean is in school.  Sean has never held a job.  Kristy is a stay at home mom. A month ago, Sean was driving home when a drunk driver pushed him off the road. In the accident, Sean broke his sternum. He also sustained a number of vascular injuries, which caused internal bleeding. He was rushed to the nearest hospital. Soon after his arrival, Sean underwent surgery to stop the bleeding.

Sean was recovering beautifully. Unfortunately, on his third day in the hospital, he developed rapid breathing, shortness of breath, and his chest pain got worse. A CT scan of the chest revealed that Sean had a pulmonary embolism. He was immediately ordered anticoagulation medication. The physician ordered 100 mg of anticoagulation medication to be split into two doses a day. The nurse misread the order and mistakenly administered 1000mg all at once. The overdose caused Sean to have extensive bleeding. Sean was scheduled for discharge within the next 3 days. Instead, he died within a few hours.

Now, think about this: Sean died prematurely at the young age of 24. Kira, lost her father. Kristy lost her husband. She now has a child to support all by herself. She has no income of her own, and she can’t rely on her parents indefinitely. After careful consideration, Kristy decided to sue the nurse (and her employer, the hospital) who overdosed her husband.

In Maryland, what will she be able to recover against the nurse in a medical malpractice suit if the jury finds the nurse (and/or her employer the hospital) negligent?

Recovery in a Maryland Survival Action

The answer to that question depends on the type of action brought against the nurse and/or hospital . Kristy, as the Personal Representative of Sean’s Estate, can sue the nurse  (i.e. a survival action). In a survival action, Kristy is essentially bringing a claim on behalf of her deceased husband for damages that he would have been entitled to claim against the nurse had he lived (i.e. had he survived – thus the name “survival action”).  In such an action, the monetary award would go to Sean’s Estate, and it would be distributed according to his will or, if he died without a will, according to Maryland’s Intestate Statute. In a survival action, Kristy can recover the medical expenses incurred by Sean as a result of the nurse’s negligence. This amount would be insignificant because Sean died within a couple of hours from the time the medication was administered.

Kristy may also recover any of Sean’s lost earnings from the time of his injury to the time of his death. Well, there are no such damages here because Sean was unemployed. Kristy could recover Sean’s funeral expenses up to five thousand dollars. She could also recover non-economic damages associated with Sean’s pain and suffering from the time of his injury to the time of his death.  In Maryland, however, these damages are limited in Maryland to about  $650,000.  Therefore, the most Kristy could recover in a survival action would be limited to about $655,000.

Recovery in a Wrongful Death Action

Kristy could also bring an action for wrongful death. In this action, Kristy could recover economic damages that she personally sustained as a result of Sean’s death. She is also entitled to recover economic damages equal to the financial support that she would have had from Sean had he lived.  In this case, it is difficult, if not impossible, to make such a determination. Sean was unemployed at the time of his death. He had no employment history.  Sean was not supporting his family financially. Kristy’s parents supported both of them.

So, how does one calculate the financial support that Kristy’s could reasonably have expected to receive from Sean in the future had he lived? One could argue, pursuant to a number of Maryland cases, that Kristy is not entitled to recover any of Sean’s future lost wages because he never worked and because he never supported Kristy financially.

Theoretically, Kristy could make a claim for loss of household services (cooking, cleaning, babysitting, etc.). In this case, however, Sean was a busy medical student, and Kristy was in charge of the household.  Therefore, it is unlikely that she would recover any such damages.

Wrongful Death – Solatium (non-economic damages)

Since her case would be in Maryland, Kristy could claim damages for her mental anguish, emotional pain and suffering, loss of society, loss of companionship, comfort, protection, marital care, attention, advice and counsel associated with Sean’s death. Here again, these damages are limited to about $650,000 notwithstanding the severity of Kristy’s pain and suffering.

Total Recovery in a Survival and a Wrongful Death Action

If Kristy were to bring a survival action and a wrongful death action in Maryland, her damages for pain and suffering under both actions would be overall capped somewhere between $812,000 and $868,000 (the “cap” on such damages is determined by the year the “cause of action accrues). It is possible that this is all she would be able to reocover against the nurse if she brought claims for wrongful death and survival.

Sean’s daughter, Kira, has a wrongful death claim against the nurse as well.  She would be entitled to recover the value of the support, which Sean would have provided to her had he survived.  Again, because Sean never actually supported Kira financially and because he never worked, that may be something very difficult to prove.  Kira, just like her mother, will be able to claim damages for her pain and suffering resulting from her father’s death. However this recovery would also  be limited to about $650,000. This cap is imposed on both Kira and Kristy’s recovery. That is, if a jury were to award Kristy $650,000 for pain and suffering and another  amount  of $650,000  to Kristy for pain and suffering, both Kira and Kristy would recover an overall amount of $650,000 (not $1,300,000).

Keep in mind, these “possible recoveries” are reduced by the costs and fees associated with litigation.

Justice or Injustice?

Now, think about this for a second… Sean’s normal life expectancy was going to be approximately another 50 years. All things being equal, he would have had a normal working life expectancy. Kristy’s life expectancy is about the same. Kira has another 16 years before she reaches the age of 18. The average cost of living in Maryland is about $3400/month, and in some places it is a lot more. Generally speaking,  college tuitions can be anywhere between $8,000/year and 35,000/year. The average cost for family health insurance is about $13,300/year.

So, you do the math: How long is Kristy’s recovery going to last?  How are Kristy and Kira’s lives going to be affected by the Sean’s death? Is Kristy’s recovery sufficient compensation for her loss?  The principle of compensatory damages is to put a litigant in the same position that she/he would have been in had the loss not occurred. I, for one, think that this is hardly achieved in this case.

If in a survival action the Estate can bring an action that Sean himself could have brought had he survived, why should his Estate not recover all of his lost future income as a doctor? After all, Sean was expected to earn income as a physician for many years. Why should Kristy be precluded from recovering some of Sean’s future lost wages under the wrongful death action simply because Sean was not employed or contributing financially to his family at the time of his death? Surely, it is reasonable to assume that Sean would have contributed some or most of his income to his family. Finally, why should the State dictate what the value of Sean and Kristy’s pain and suffering is? Shouldn’t this be decided by a jury of their peers? What are your thoughts?

Related Posts:

Malpractice Wrongful Death Lawsuit by Couple Falsely Accused of Abusing Their Child Filed Against Children’s Hospital

Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis

Legal Boot Camp (First Class): The Story of Pam – Maryland’s Law on Earning Capacity

“Wrongful Death and Survival Actions”

Disclaimer: As is the case with all of our blogs and the writings posted on our website, we are not offering legal advice to our readers. This information in our series,Legal Boot Camp, is being presented in the hope that we can provide some education about the law in Maryland and the District of Columbia. The law in the field of personal injury (and particularly in our sub-specialty of medical malpractice) can be complex and confusing at times. Even in these two jurisdictions where we are licensed to practice, the laws and their interpretation by the courts can vary significantly. It is simply our hope that by presenting this series – Legal Boot Camp - that we can provide a better understanding of some legal principles that can come into play when bringing a civil claim or lawsuit for damages as a result of the wrongdoing of others.
For those who do not live in either Maryland or the Washington, D.C., we hope that we can at least raise some issues for you to consider when you speak with an attorney licensed to practice in the state in which you live. Many times the basic concepts of law are similar. We hope that by raising some of these issues applicable to Maryland and the District of Columbia, you will at least have a basic understanding of some terms and principles that may apply to your situation. Don’t be afraid to raise these issues with your attorney. Education – be it in law or medicine – is our main goal.
Finally, please see our introductory blog for Legal Boot Camp for a better understanding of our mission in presenting this series.


 

 

The death of a baby – the economic realities

Monday, June 6th, 2011

I recently wrote a blog about the grief that parents suffer when they lose an unborn child. At the risk of sounding crass, I want to now discuss the economics of lawsuits involving the death of an unborn child. For those contemplating taking legal action for the loss of their child, I hope this provides some useful information for you to consider.

Maryland courts have carved out specific rules for when an unborn child is considered a person capable of recovering damages in the event of death. The primary rule is that if a baby is actually born alive, no matter at what gestational age, that baby is considered a person with legal rights. So, if a 20-week baby is born alive and then dies one minute later, that baby is considered a “person,” and a lawsuit can be filed on behalf of the estate for that baby’s pain and suffering, otherwise known as a Survival Action.

(This leads to an interesting question – does a fetus feel pain? See Related Links below). The parents of the unborn child can also file what is known as a Wrongful Death action for their own economic and non-economic damages resulting from the death of their baby, primarily their grief and emotional loss over the death of their child. Survival actions and Wrongful Death actions are two separate claims, although they are usually pursued in the same lawsuit.

When a baby dies before birth, however, another question has to be asked: was the baby viable or not? Viability means that a baby is able to live outside the womb, even though he or she may require serious medical intervention. The current thinking is that babies are viable at around 22 weeks. The courts have made the rule that if an unborn child dies before the age of viability, that baby is not yet a “person” and has no legal rights. There can be no Survival Action and there can be no Wrongful Death action. If, however, the baby has reached the age of viability, then the baby is considered “a person” with legal rights, even if the baby was never born alive. Confusing? Yes it is.

The Maryland Courts were following the ruling in Roe v. Wade that a mother had a constitutional right to abort a non-viable baby. Therefore, a non-viable baby was not legally considered a person. If the baby was not a person, then no lawsuit could be filed on behalf of the estate of that baby, nor could the parents file a wrongful death action. So in order for a Survival Action or a Wrongful Death action to lie for an unborn baby, that baby has to have reached at least 22 weeks of gestation.

To make things even more confusing, the Maryland courts have carved out an exception to the above rules. Let’s consider the example of a non-viable baby (i.e., less than 22 weeks gestation) who dies before birth as a result of someone else’s negligence that injures the mother.

A common situation occurs when the mother (let’s say she’s 8 weeks pregnant) is injured in a car accident and suffers a miscarriage as a result. Looking at the above rules, one would think that no claim is allowed. However, the courts have said not so fast. In this circumstance, while the mother cannot recover for the grief of losing her child (because the child is non-viable and, therefore, not legally a person), she can recover for similar damages, including:

  • The depression, anguish, and grief caused by the termination of the pregnancy;
  • The manner in which the pregnancy was terminated;
  • Having to carry a baby which was killed by someone else’s tortious conduct; and
  • Having to witness the stillborn child or the fetal tissue that was to be her child.

I realize this itemization of damages sounds awfully close to the damages permitted in a Wrongful Death action – the very damages that are not allowed in the case of a non-viable baby. It is confusing, to say the least. The courts are trying to find a way to compensate a woman who is injured and loses her non-viable baby as a result of someone else’s negligence, while remaining true to prior precedent in this state that there is no Wrongful Death action allowed in the case of a non-viable baby.

Lastly, keep in mind that Maryland’s cap on non-economic damages applies to cases involving the death of an unborn baby. Economic damages (medical bills, lost wages) are usually very small in such cases. There are no lost wages because we’re talking about a baby, and the medical bills are usually small.

The value of these cases is in the emotional pain and suffering of the parents, and the physical pain and suffering of the baby (assuming a viable baby). Under Maryland law, the maximum allowable recovery for such a claim is $868,750 in a medical negligence action (assuming Mom and Dad both file a wrongful death action).

Under the hypothetical of the mother seeking recovery for the loss of a non-viable baby, the maximum allowable recovery is $695,000 if the allegation is medical negligence, and $755,000 if the allegation is non-medical negligence. (The Maryland Legislature has for some strange reason imposed different caps depending on whether the negligence is medical or non-medical, e.g., a car accident).

As for the question of whether an unborn child feels pain, please click on the link below for a blog by Brian Nash on this very issue.

Related Nash and Associates Links

Does a fetus feel pain

Hysteria over malpractice “crisis”

 

 

 

Why do so many patients die when their in-hospital alarms go unheard or unheeded?

Thursday, February 17th, 2011

ICU alarm monitor

Sunday’s edition (February 13, 2011) of the the Boston Globe online (boston.com) tells a chilling story of how many times the alarms used to monitor patients go unheard and unheeded by medical staff leading to death or catastrophic injuries for patients throughout this country. The story, which was a two part series (for the second installment, see For nurses, it’s a constant dash to respond to alarms) by Globe reporter Liz Kowalczyk, narrates numerous incidents in which alarms simply went unnoticed, ignored or unmonitored. Numerous other issues such as lack of education of hospital staff as to how to properly connect the devices, failures to realize the batteries had gone dead, turning the alarms so low in volume they could not be heard, taping over amplification systems to avoid the “annoyance” of the alarms and the like are also chronicled in this series. While it is documented by an analysis of the FDA’s database of adverse events involving medical devices that 216 patients died nationwide between 2005 and mid-2010, it is also certain that this number of alarm-related deaths is probably much higher. The ECRI Institute, which was hired by the Globe to analyze the FDA database, believes that the health care industry under-reports these cases to the FDA.

Some examples of alarm-related deaths

Since links to the Globe’s original articles are provided above, I will not go into the level of detail that is otherwise available through reading the original reports. Here is a sampling of the types of “alarm failures” leading to patient deaths:

  • staff misprogrammed complicated monitors
  • staff had forgotten to turn the monitors on
  • batteries had gone dead leading and failed to function (one instance where a man had a “flat line” for more than two hours that went undetected)
  • defective wires or connections on the monitors
  • malfunction or design flaws in the monitoring devices
  • staff ignored the device warnings because of “alarm fatigure

Alarm Fatigue

According to one computation at Johns Hopkins Hospital in one 15 bed unit as to how often alarms go off during the course of day, it was documented that there were 942 alarms per day – “about 1 critical alarm every 90 seconds.” There is no doubt that the number of alarms and the clinical settings in which they are used have increased over the years. As Ms. Kowalczyk noted, “[W]ith the use of monitors rising, their beeps can become so relentless, and false alarms so numerous, that nurses can become desensitized – sometimes leaving patients to die without anyone rushing to their bedside.”

In some cases, busy nurses have not heard or ignored alarms warning of failing batteries or other problems not considered life-threatening. But even the highest-level crisis alarms, which are typically faster and higher-pitched, can go unheeded. At one undisclosed US hospital last year, manufacturer Philips Healthcare, based in Andover, found that one of its cardiac monitors blared at least 19 dangerous-arrhythmia alarms over nearly two hours but that staff, for unexplained reasons, temporarily silenced them at the central nursing station without “providing therapy warranted for this patient.’’ The patient died, according to Philips’s report to federal officials.

Keep in mind that many of these alarms are not only audible in the patient rooms; they also sound at the central nurse’s station. In some instances, hospitals have put up hallway speakers for nurses to hear the alarms more readily. In other facilities, in addition to audible alarms, various pieces of critical data information (e.g. heart rhythm, heart rate) are visible on displays at nurses stations and in some places, it is reported, “on brightly colored scrolling signs in corridors.”

The article quotes one nurse at Boston Medical Center, who addresses some of the issues at the heart of this “alarm fatigue” phenomenon.

Everyone who walks through the door gets a monitor. We have 17 [types of alarms that can go off at any time. They all have different pitches and different sounds. You hear alarms all the time. It becomes...background

False Alarms - the cry wolf issue

It is well known that some alarms can go off when a patient sits up, coughs, turns or makes other normal movements. According to the Globe report, "'[s]ome studies have found that more than 85 percent of the alarms are false.” I have no idea how this statistic was compiled, but even if it is accurate (which is debatable), that still leaves dozens if not hundreds (if not thousands) of alarms going off daily in every hospital throughout this country that are an indication of a patient in need of rapid response life-saving care.

Another nurse is quoted by the Globe in expressing both the frustration and the need for attentiveness when the alarm goes off. “You have to respond to the alarm[, b]ut there are some days when you feel you’re just running from alarm to alarm. It can be exasperating.”

The Fix

The short answer appears to be: there is no easy, quick fix. Here are some of the measures institutions have taken to address this problem:

  • working with engineers at prestigious institutions (e.g. MIT’s work with Boston’s Children’s Hospital) to develop more sophisticated monitors to identify true crisis alarms.
  • hiring of dedicated monitor technicians and/or nurses, who man the central nurses’ station to triage alarms.
  • specialized education programs to avoid misprogramming or connection mistakes due to lack of knowledge by staff
  • establishing tighter standards of which patients should be connected to alarmed monitors – to cut down on the “background noise” of alarms.
  • replacement of old equipment for more advanced, accurate alarm/monitor systems
  • implementation of new programs in-hospital to require bioengineers to check the monitors daily to make sure they are working properly.
  • implementation of standardized settings on machines so that alarms are not turned so low they are non longer audible. (One case of a patient death was attributed to staff turning the the “vexatious” alarm down to a 40% of full volume – no one responded to an arrhythmia alarm for 40 minutes because no one heard the reduced volume alarm during that time.)
  • changing batteries every day in monitors to make sure they are, in fact, charged and working

The Blame Game

As you might suspect, the finger-pointing that takes place after a patient is found dead or severely injured is rampant. As the Globe reports, “Initially, hospitals almost always blame the monitor’s alarm for not sounding when it should have, according to reports. But the company investigations show the assertion is often false.”

In 40 of the cases reviewed by the Globe, the alarms did not sound, usually because the staff had not properly programmed or turned on the machines.; in only eight cases was there a malfunction or design flaw.

[I]n nearly 100 cases, manufacturers ere unable to determine exactly what went wrong, often because they didn’t have enough information, or they told federal regulators they still were reviewing the death.

Where to from here?

While I certainly don’t have to contend with the incessant noise of alarms going off all day long, nor am I required to jump away from what I’m doing to respond to a false alarm, I can’t help but think that in a health industry as advanced as ours allegedly is, there must be some steps that can readily be taken so that others don’t die because some nurse has “alarm fatigue,” or a battery died, or the volume was turned down too low to avoid the annoyance of the alarm or some other ill-conceived and unacceptable reason.

What suggestions do you have for the healthcare industry to deal with this problem? Have you ever worked in a setting where this is a problem? If so, how did you and/or your institution deal with this issue? There are a lot of smart people in bioengineering and in our health institutions; why is this still such a problem in a country that claims to be so advanced?

Image by ectopicinteractive.com

The Hidden Dangers of Button Batteries

Wednesday, July 14th, 2010

Sunday evening, immediately after putting our two year old to bed, my wife and I watched 60 Minutes and settled in to begin to enjoy what we thought would be a ‘relaxing’ evening.  Unfortunately, one of the lead stories that the program featured involved the dangers of ‘button batteries’.  These batteries are especially dangerous to small children, because, as I learned from the show, the electrical current of the battery, once stuck in the esophagus, literally burns through the tissue surrounding it, causing holes in the esophagus.  They are also, unfortunately, very easy to get stuck in a child’s throat.

My mind starting racing; “OK, what products do we have in the house that are powered by button batteries?”  My concern was well-justified, as the vast majority of these tragic incidents occur to children under the age of four.  Scouring the internet this morning, I found several articles warning the parents of small children about dangers they should heed.  Sadly, I also saw blogs from the parents, in which they recount how they lost their child because of such a tragedy.  These products are not the subject of recalls, mind you.  These are batteries found in everyday products that you may have in your home.  The damage can be permanent and may effect your child’s ability to eat and drink permanently.

I found a warning on-line from the Consumer Product Safety Commission (CPSC), going all the way back to March of 1983, almost 30 years ago:

Technologic advances in electronic miniaturization have increased the availability of miniature (button) batteries in homes..in watches, calculators, cameras, hearing aids, and games. Although the vast majority of these button batteries, when accidentally swallowed, will pass through the person without any problem, occasional severe complications and even fatalities have been reported. Batteries may become lodged in the esophagus or intestine, slowly leaking alkaline electrolytes and causing an internal chemical burn.

Battery ingestions are preventable. Important prevention and treatment information is available based on preliminary results of a National Button Battery Ingestion Study conducted by Dr. Toby Litovitz, director of the National Capital Poison Center, of 62 button battery ingestions reported to the National Capital Poison Center in the past 9 months, 59% involved batteries that were left out loose rather than properly discarded or stored; 39% of the batteries were in the product they were intended for, and removed from the product. Half of these batteries were in hearing aids.

Fast forward to the present, and the warnings are all over the place.  In a recent article from examiner.com out of Baltimore, the urgency of getting the button battery out of the child as soon as possible is emphasized, due to how quickly damage can occur to the child’s throat:

The research also found there is only a two hour window to get the batteries out when lodged in the esophagus, which is less time than previously reported. Delayed removal can result in serious injuries such as tissue tears, burning, and internal bleeding .

Where can these batteries be found, and what can we do to help safeguard our children? A recent Reuters article provides us with some guidance:

They warn parents to keep not only loose batteries out of children’s reach, but also the household products that contain the batteries. In about 62 percent of cases where a young child swallowed a button battery, the child fished the battery out of a household item.

For an additional barrier, the researchers advise parents to place strong tape over the battery compartment of all household products.

They urge extra caution with any 20-mm lithium cell batteries, which can be recognized by their imprint codes — usually CR2032, CR2025 or CR2016.

On a final note, another danger is that doctors sometimes misdiagnose the injury, as the symptoms can be non-specific at times:

The current study found that in the majority of fatal or severe injuries, no one had seen the child swallow the battery. And because the symptoms of poisoning are non-specific — such as fever, vomiting, poor appetite and lethargy — doctors often initially misdiagnosed the problem.

Of course, the key is not to let your child get a hold of these ‘button batteries’ to begin with.  We strongly urge you to check your homes for these products and to take the appropriate steps to safeguard your family.  We are also again providing the link for the CPSC, as we have previously done so many times in our website‘s blog, for additional follow-up information.



New National ‘Pool Safely’ Campaign Initiated to Save Children’s Lives

Tuesday, July 6th, 2010

Approximately a month ago, we featured a blog on our website that dealt with child safety; specifically, safety in and around a pool.  Now, with record high temperatures hitting most of our local areas, we thought it worthwhile to further detail these safety issues and concerns, as more and more of us and our children head for comfort in the area local pools.  The Consumer Product Safety Commission (CPSC) has actually done that for us, through a national campaign that they have recently started, entitled ‘Pool Safely’:

The U.S. Consumer Product Safety Commission (CPSC) today kicks-off the Pool Safely campaign (www.poolsafely.gov), a first-of-its-kind national public education effort to reduce child drownings and non-fatal submersions, and entrapments in swimming pools and spas. At a press conference at the Fort Lauderdale Aquatic Complex today, Olympic swimmers Jason Lezak and Janet Evans joined Inez Tenenbaum, Chairman of the CPSC; U.S. Rep. Debbie Wasserman Schultz (D-FL); and Nancy Baker, mother of Virginia Graeme Baker, to officially launch Pool Safely and release the CPSC’s annual submersion and entrapment reports.

Please note that the campaign is NOT just about pool drownings and submersions; it also focuses on “entrapments”.  Entrapments should not be overlooked because sadly and tragically entrapments occur more frequently than one may think.  An entrapment occurs when a child is literally stuck to the pool floor at or near a drain site, where the suction force is so great, that the child is unable to break free from the suction, thereby causing the child to drown.  The statistics speak for themselves within this year’s memorandum drafted by the CPSC.

The campaign also details preventative measures for parents to take note of and remember, in addition to providing the tragic statistics regarding accidental child drownings:

The Pool Safely campaign will deliver an important and simple message: just adding an extra safety step in and around the water can make all the difference. Your greatest water safety assurance comes from adopting and practicing as many water safety measures as possible, including: barriers that completely surround the pool with self-closing, self-latching gates; staying close, being alert, and watching children at the pool; learning and practicing water safety skills (knowing how to swim and perform CPR); and having the appropriate equipment (compliant drain covers, alarms, barriers and sensors).

We encourage our readers to review all of the links within this article. We sincerely want you to be better aware and prepared as we go through a summer of intense heat.  It looks as if the heat is here to stay for awhile, and pools can be a great source of fun relief, if the proper safety precautions are followed.

“The July Effect”: Where To Seek Medical Care When The Heat Is On

Wednesday, June 9th, 2010

Doctor-in-training

Most major cities are home to some of the biggest teaching hospitals in the nation.  Baltimore, Maryland, is home to both The Johns Hopkins Hospital with its sister hospital, Bayview Medical Center, and The University of Maryland with its renowned Shock Trauma Unit.  So, what happens every July that should make one second-guess, or at least be wary of, an in-patient or out-patient visit to such institutions?  New medical residents flood these institutions as new graduates from their associated medical schools and other medical schools for continued clinical training.

As with any other new employment, these new graduates have a learning curve that is reflective of the level of care demanded by the particular service with whom they are working.  Some might be in various areas of medicine (e.g. rheumatology, endocrinology, internal medicine, emergency medicine, medical intensive care, etc.), or some may choose to pursue surgery, providing services in general surgery, orthopaedic surgery, or others, working in the operating room as well as managing surgical patients on the floor.  Duties include ordering medicines, intravenous fluids and nutrition, respiratory treatments, ordering and interpreting lab tests, and a host of other responsibilities.  Fairly recent directives (2003) have essentially eliminated the age-old training regimen of residents working 36 hours straight; however, the demands of today’s healthcare system does not equilibrate the current resident workload with a “walk in the park”.

As reported by “Booster Shots” blog, a recent study conducted at the University of California San Diego (UCSD) and reported in the Journal of General Internal Medicine adds merit to an age-old but previously poorly substantiated phenomenon of increased hospital deaths during the month of July.

David H. Phillips, a social scientist at UCSD, and Gwendolyn E. C. Barker, a graduate student at UCSD, analyzed 62,338,584 U.S. death certificates issued between 1979 and 2006.  After focusing their analysis to medication errors, they were able to demonstrate an average 10% increase in medication-related deaths in counties with teaching hospitals during the month of July as compared to other months and counties without teaching hospitals.

Additionally, there were a proportionate higher number of deaths attributed to the counties with a higher number of teaching facilities.  Analysis of the data further demonstrated no increase in hospital medication-linked deaths in July in counties with non-teaching hospitals, no increase in non-hospital related deaths in July, and no increase in other causes of inpatient deaths.  A similar study of an Australian teaching hospital with anaesthesia trainees over a 5-year period was able to substantiate an increase in errors during the first month of clinical anaesthesia training (February) as compared to other months.

One’s natural instinct is to blame the new residents for their inexperience, and in looking at the various responses to this report from UCSD, that seems to be the case.  Is that the reality though?  There is a hierarchy amongst the residents, and residency is a multi-year process to build the clinical skills of the new doctors as they rotate through the various medical services. Additionally, all residents must report to a senior attending physician who oversees the care rendered.  Different attendings have different styles and different levels of oversight.  Factor in vacations of various staff members, from attending physicians to nurses, unit clerks and technicians.  Not only do the new residents have to “learn the system” of the facility, they have to form working relationships with a multitude of staff members that can be shifting on a weekly basis.  They have to meet and treat a variety of patients, often from all walks of life, with lists of medications up to 2- and 3-pages in length!  That’s quite a lot to expect from someone fresh from medical school.

The UCSD study concluded by recommending changes is various areas:  re-evaluation of the responsibilities assigned to the new residents, re-assessing the level of supervision of these new residents and increased medication-safety education.

The general public, in the past and even currently to some degree, tend to act in awe of doctors, unequivocably accepting orders without question.  Joe Smith, M.D. is Dr. Smith whether he is a first year resident or a 20-year veteran, but obviously the degree of experience and education is vastly different between the two.  Perhaps there should be a different designation for residents???  With or without it, the public needs to promote self-advocacy by questioning medical directives, not as a nuisance but for the purpose of understanding their own conditions and needs. If one has to go to a teaching hospital in July, be aware of this fact; identify the treating physicians and the hierarchy; make sure one’s medication list is supplied; and, identify the rationale for any new medications or treatments suggested.  Patients should be active participants in their own care and have a basic knowledge and understanding of the condition for which they are being treated.

Boating Accident:FL East Coast Boating Incident ends in multiple deaths!

Thursday, June 3rd, 2010

As my parents have now headed back to Florida from their Memorial Day Weekend visit up here to DC, a bit of nostalgia overtook me, and I decided to look at my old hometown paper online, Florida Today.  The first article to catch my eye was a tragic story about a boating trip during the holiday weekend, gone terribly wrong:

Cyril Holley, 46, and his daughter, Madison Holley, 19, were riding in a boat when they were struck and killed by another vessel, which was carrying other family and friends near Disappearing Island.

Two other people were taken to nearby hospitals.

Witnesses told Local 6 that one of the boats appeared to jump over and crash on top of the victims’ watercraft.

I will tell you from first-hand experience that the waterways and ocean along the east coast of Florida are packed with boats of varying sizes on any given Memorial Day Weekend.  Ponce Inlet (where this horrible incident occurred), an area on Florida’s east coast just south of Daytona Beach, is an area known for its significant boat population.  What makes this story even more tragic, is that Ms. Holley was due to give birth in two weeks, and the unborn child’s father was also on one of the two boats involved in the collision.

An eyewitness briefly describes what he saw as the tragedy unfolded before his eyes:

“The larger boat was just jumping off waves,” said Ryan Yadav, who watched the collision from a nearby beach. “I think it just took too much speed on and went right over. Cut the awning right off.”

Our thoughts are with the families who lost their loved ones.

Brian Nash’s comment: For those of you who have been on our wonderful waterways of D.C. and Maryland, I would imagine you have your own tales of accidents and numerous near-misses. A year ago, I saw a father flying around the Bay in a speed boat in the shipping lane with his kids screaming for joy as they hung on for dear life in a plastic raft being towed behind. Jet skiers, drunks at the helm – they’re all out there. Enjoy the water, but for goodness sake, use some common sense. If you are a boater, you know how fast it can all go so wrong.