84% Of Anesthesiologists Involved In Surgical Catastrophes

According to results from a survey published in the March issue of Anesthesia & Analgesia, the official journal of the International Anesthesia Research Society (IARS), over 80% of anesthesiologists have been involved in a fatal or serious incident to a patient during a surgical procedure.

New research indicates that these catastrophic events can have considerable and lasting effects on anesthesiologists and other professionals, who could benefit from time and support in order to recover from the incident.

Dr. Farnaz M. Gazoni of the University of Virginia Health System, Charlotte, who led the study, explained:

“These emotional and potentially cognitive effects can have repercussions not only for the physician involved but also, conceivably, for patients subsequently cared for.”

To a nationwide sample of anesthesiologists, the team sent a survey about surgical catastrophes – events resulting in death or injury of a patient. The researchers found that 84% of the 659 respondents have been involved in a surgical catastrophe. Over an entire career this works out as an average of 4.4 incidents.

Over 70% of respondents said they experienced:

• Guilt
• Reliving of the event
• anxiety
• and the majority reported that they felt personally responsible for the injury or death of the patient, even if they believed the event was unpreventable

The researchers found that 12% of respondents considered changing careers after the catastrophic event, 20% reported that they never fully recovered, and almost 90% said it took quite a long time to recover emotionally.

Only 7% of anesthesiologists were given time of work after the catastrophic event, while the majority had to continue with their work. Two-thirds of respondents reported that the believed their ability to care for patients was compromised in the hours following the incident. In addition, the majority reported that it would have been helpful after the incident to receive some sort of formal debriefing.

Prior studies have demonstrated that the injury or death of a patient is major source of stress for doctors, however, this study is the first to focus on surgical catastrophes involving anesthesiologist in the United States.

Dr. Gazoni and colleagues conclude:

“A perioperative catastrophe may have a profound and lasting emotional impact on the anesthesiologist involved and may affect his and her ability to provide patient care in the aftermath of such events.”

A report by Drs. Timothy W. Martin of University of Arkansas for Medical Sciences, Little Rock, and Raymond C. Roy of Wake Forest University School of Medicine, Winston-Salem, N.C., reveals that surgical catastrophes may have additional victims as well.

As demonstrated in the study, these catastrophic events can make anesthesiologists the “second victim” of the event as a result of the lasting emotional impact it has on them. Furthermore, subsequent patients could become the “third victims” as many anesthesiologist are required to continue working – even though they believe their ability to care for patients is compromised.

According to Dr. Martin and Dr. Roy, the study indicates some “new imperatives” in the way health care organizations respond to catastrophic events.

Martin and Roy, feel that after being involved in a surgical catastrophe, anesthesiologists (and other professionals) should probably not be allowed to return to patient care duties immediately following the incident. In addition, they suggest anesthesiologists should be regularly monitored for signs of long-term psychological impairment, and that there should be some type of formal mental health screening following the event.

Written by Grace Rattue
Copyright: Medical News Today

NEW YORK STATE TRIAL LAWYERS INSTITUTE SEMINAR- May 17th – (6PM-9PM)

NEW YORK STATE TRIAL LAWYERS INSTITUTE SEMINAR- May 17th – (6PM-9PM)
The Trauma, Environmental, Toxic Injury, & Medical Liability Case:
Using & Understanding Medical Data.
Join Chair- Steven E. Pegalis, ESQ., and speakers: Florence Gibbons, ESQ., Josephine Wu, DDS., JD., David Y. Zhang, M.D., Ph.D. on this informative public forum.

New York State Bar Association/ Continuing Legal Education Presents: ‘Medical Malpractice’ – Register Today.

New York State Bar Association/ Continuing Legal Education Presents: ‘Medical Malpractice’ This Program will be for new and experienced attorneys. This seminar will provide an overview of key issues in Medical Malpractice Litigation through a combination of lectures and practical demonstrations.  Learn how to determine the relevant standard of care, how to prepare your case, how to avoid common pitfalls and how to examine expert witnesses.

Steven E. Pegalis of Pegalis & Erickson LLC. will be a key speaker on ‘Openings and Summations’, Friday -March 2nd at the Melville Marriott, Long Island. 

Register Now:

http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=5218

Doctor Misses Cancer, Victim Wins $15M in Malpractice Suit

The woman had a marble-sized lump that a doctor first said was not malignant.

By Greg Cergol

|  Friday, Feb 10, 2012  |  Updated 6:28 PM EST

A Long Island breast cancer victim has been awarded $15 million in a malpractice suit against her doctor after her cancer was initially missed, despite a lump in her breast.

Stephanie Tesoriero, 50, had claimed the doctor misdiagnosed her cancer, costing her precious time in fighting the disease.

“This could have all been avoided,” Tesoriero said.

The mother of three first discovered a marble-sized lump in her breast in 2002.

After reviewing her mammogram, Dr. Paul Fisher of the Carol M. Baldwin Breast Care Center in Stony Brook concluded there was “no evidence of malignancy.”  He ordered no further tests, according to Tesoriero.

The doctor instructed her to return for a normal exam in about a year, Tesoriero said. But the lump didn’t go away.

And when she received more tests 16 months later, Tesoriero said, another doctor found that the lump was as big as a golf ball. He determined it was, in fact, breast cancer.

“Why didn’t they find it the first time?” Tesoriero asked. “Why didn’t they go the extra step and do a sonogram?”

A mastectomy, chemotherapy and radiation treatments all followed and, for a time, the cancer went into remission. That’s when Tesoriero decided to sue her doctor.

The two-week trial ended Wednesday with a jury of six women approving the multimillion-dollar award.

Two calls to Fisher’s lawyer were not returned. He remains on staff at the Baldwin Breast Care Center, but since the center itself was not named in the lawsuit and oversaw Tesoriero’s later treatment, a spokeswoman offered no comment.

“They found him negligent because he was,” said her lawyer Robert Fallarino. “There was something there, something she felt, and it needed to be evaluated and if it had been, we would not be here now.”

“I just wanted him to admit he made a mistake,” Tesoriero said of her doctor. “Doctors do make mistakes.”

Tesoriero’s cancer fight is far from over. The cancer has returned and has spread to her bones.

The prognosis is uncertain, her lawyer said. Tesoriero must now undergo chemotherapy treatments nearly every week for the rest of her life.

“I don’t want to see anybody else go through this,” Tesoriero said.  “It’s a tough fight.”

Tesoriero has spoken out, she said, to sound a warning for other women.

“If you have any suspicions, any doubts,” she said, “speak to the doctor and ask for another test.”

How does the court in a medical malpractice case decide how much money to allocate for my child’s future care-related needs?

Filed under: Lifetime Financial Benefits, Medical Malpractice Lawsuits

If the development of an individual’s cerebral palsy is related to the negligent care of a doctor, hospital or midwife, most jurisdictions allow for the parents or guardian pursue a case on their child’s behalf.   While some jurisdictions limit the compensation that an injured party may seek for intangible damages such as pain and suffering or disfigurement, most jurisdictions allow for parents to recover money for economic damages that their child has incurred as a result of his birth injury.

While uncertainty is an element in every person’s life, in the context of medical malpractice litigation— and cerebral palsy cases in particular— the future care-related expenses can be so significant that there is little room for error.  Consequently, many cerebral palsy lawyers utilize the services life-care planners to help educate decision makers in the case who are responsible for making determinations as to financial awards.

In the case of most cerebral palsy lawsuits, damages may be sought for both past and future care.  The use of a physician or other medical professional with who is trained in life care planning is an important component in both ascertaining an individual’s life expectancy— and specifically what the needs will likely be— and what they will likely cost.

Most life-care planners go about their work after evaluating the individual, the patient’s medical records, and reports from the individual’s treating physicians.  After analyzing the related data, a life care planner can make predictions– within a reasonable degree of medical certainty— as to the person’s realistic life expectancy as well as the type of care that they will likely require throughout their life– from the number of hours of skilled nursing care they will likely require on a daily basis, they type of wheelchair they need, to how frequently a handicapped vehicle likely needs to be replaced.

Frequently, the services of an economist are engaged to help explain the life care planners recommendations in a dollars-and-sense fashion.  Working in tandem with a life care planner, an economist looks at the recommendations made in the life-care plan and calculates a monetary figure necessary to pay for the care–  throughout the course of the person’s life.  Most economists incorporate a rate of return for conservative investments to devise a present cash value for a cerebral palsy patient’s life plan.  Put simply, a sum of money needed today to provide for the suggested care of the individual over the course of the individual’s life.

How Complaints From a Single Doctor Caused the Gov’t to Take Down a Public Database

by Marian Wang
ProPublica, Nov. 10, 2011, 12:20 p.m.

An agency within the U.S. Department of Health and Human Services that maintains a discipline and medical-malpractice database reopened it for public access yesterday, two months after the agency had first taken the database offline.

The National Practitioner Data Bank contains information used by hospitals, insurers, and licensing boards to track doctors’ records, check prospective hires, and make other decisions. A publicly available version of the database — which removed confidential identifiers such as doctors’ names and addresses — had long been used by reporters and others interested in patient safety. In the years it was online, journalists could reference the database and, with additional reporting, could at times identify doctors with uniquely long histories of being sued or disciplined for medical malpractice.

Then, two months ago, the government cut off public access — a decision that was sharply criticized by a number of journalism organizations and consumer groups.

What was behind that decision? Apparently, one Kansas doctor with a trail of malpractice suits.

A public records request by Sen. Charles Grassley and the New York Times turned up documents about the decision that shows that the agency closed the database days after the doctor, Robert Tenny, complained to the government. Thanks to the database, he told the Health Resources and Services Administration, or HRSA, he was about to get unwanted attention in his local paper.

We culled through the documents and pulled out some interesting snippets that give a glimpse into the backstory behind why the public database was temporarily shut down and why — even now — the restored database has some new restrictions.

A brief timeline:

Aug. 16 – A local newspaper reporter requested a comment from a neurosurgeon, Robert Tenny, through Tenny’s attorney. The reporter, Alan Bavley of the Kansas City Star, was working on a story about doctors who have went undisciplined despite histories of malpractice allegations. He had used both the public database coupled with publicly available court records to do his reporting.

Reporter requests comment for his story from the doctor and his attorney. (p. 6)

Aug. 24 – The doctor sent a fax to Cynthia Grubbs at HRSA. Tenny asked for help, alarmed that the reporter had identified him and was poised to report on his malpractice settlements. The fax looked like this:

Alarmed doctor asks HRSA to ‘PLEASE HELP!’ after reporter contacts him. (p. 5)

Aug. 26 – The HRSA wrote to the reporter, warning that he could face at least $11,000 in fines for each violation of confidentiality. The doctor was copied on the letter.

HRSA warns reporter of penalties associated with disclosure of confidential information. (p. 2)

Sept. 1 – The agency cut off public access to the database.

Sept. 4 – An article ran on the front page of the Kansas City Star, telling the story of a woman who died in 2007 after undergoing a brain surgery with Dr. Tenny. It noted that Tenny had been sued at least 16 times for medical malpractice but had never been disciplined by the state’s licensing boards. (Update: Worth noting that according to the report, Dr. Tenny settled at least six of the 16 lawsuits; the others were either dismissed or the outcomes either weren’t clear. “In at least one case, the verdict was in Tenny’s favor,” the Star reported.)

On the same day, the doctor wrote to HRSA again, this time with a copy of the article, and he expressed a desire that this “will change the way public data is presented.”

The doctor urges HRSA to “change the way the public data is presented.” (p. 7)

Sept. 5, 7, 11, 14, 15, and 20 – Dr. Tenny wrote five more letters to HRSA, complaining that the newspaper was making “a concerted effort” to end his career and that the article “significantly questioned the security of your data.” He also speculated that the reporter had gotten improper access to information from the full data bank either from a local medical center or from a disgruntled former Data Bank employee.

Sept. 22 – The Kansas City Star wrote a story about how groups were urging that the database be reopened. Dr. Tenny wrote to HRSA again: “Stay strong and keep up the good work!” (The American Medical Association, around this time, also wrote a letter supporting the agency’s decision to remove the file.)

More encouragement from Dr. Tenny. (p. 45)

Sept. 26 – HRSA responded to Dr. Tenny’s six letters, telling him that the publicly accessible database had been removed, and that the agency had contacted hospitals to remind them of confidentiality requirements and sanctions for breaches of confidentiality.

HRSA responds to Dr. Tenny’s letters, telling him that it cut off public access to the data. (p. 50)

Nov. 9 - HRSA restored public access to the database, but as many reports have noted, it comes with a major caveat. According to the website, users of the new database are no longer allowed to combine information gleaned from the public database with any other publicly available information in a way that would identify doctors. Or in other words, the government is now trying to tell the public — including the press — what it’s allowed to do with publicly available information. (The agency told the Kansas City Star that it has a duty “to make certain that information about individual practitioners remains confidential.”)

Sen. Grassley and others have pledged to keep fighting the agency’s interpretation of the law, questioning whether the database is ultimately meant to protect the public or to protect physicians.

“The interpretation of the law ought to be for public benefit,” Grassley said. “A single physician complained that a reporter identified him through shoe leather reporting, not the public data file. One complaint shouldn’t dictate public access to federally collected data for 300 million people.”

We’ve called Dr. Tenny’s office for comment but have not received a response.

Med-mal cap does not pass constitutional muster

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Robert Peck of the Center for Constitutional Litigation responds to James Ho’s op-ed about medical malpractice reform.

September 12, 2011

In “Federalism and medical malpractice reform” [NLJ, Aug. 29], Gibson, Dunn & Crutcher partner James Ho defended H.R. 5, the congressional medical-malpractice damages cap bill against some carefully selected constitutional attacks. Missing from his attempt to justify congressional authority to amend state tort law was any willingness to grapple with fundamental constitutional principles that stand as insuperable obstacles to what H.R. 5 would do.

A federal law capping compensatory damages in state tort actions brought by the most catastrophically injured victims of substandard medical treatment cannot comport with the Seventh Amendment, which guarantees the right to trial by jury. The courts apply a historical test to determine whether constitutional jury-trial rights are infringed. The most recent review of that historical record by the U.S. Supreme Court occurred in a 1998 unanimous opinion written by Justice Clarence Thomas, which found that, under the English common law that predated our Bill of Rights, jurors are “the judges of damages.” The Court then explained that any deviation from that venerable practice, which treats damages as part of the jury’s determination of the facts, fails to satisfy the “substance of the common law right” that the Seventh Amendment enshrined. Feltner v. Columbia Pictures Television Inc., 523 U.S. 340 (1998). It is worth mentioning that the winning advocate behind this argument was a lawyer named John Roberts Jr., now chief justice of the United States.

The Court reiterated the jury’s unimpeachable authority over any determination of noneconomic damages, the type of compensatory damages that H.R. 5 specifically attempts to limit, in Cooper Industries Inc. v. Leatherman Tool Group Inc., 532 U.S. 424 (2001). There, the Court held that punitive damages were no longer a fact to be found by the jury under the Seventh Amendment but instead an expression of the community’s moral outrage at the misconduct and subject to judicial revision in accordance with due-process principles. The Court took pains to contrast the “evolved” status of punitive damages, which were jury-determined facts as long as they compensated for intangible injuries, with noneconomic damages, which remain “a question of historical or predictive fact,” within the exclusive province of the jury. For that reason, numerous state courts have struck damages caps for violating the cognate protection of jury rights found in their state constitution.

Mr. Ho also picked a single federal constitutional argument among many made in the course of still-pending Texas litigation to deride — that the Texas cap constitutes a taking, a position that former Justice Sandra Day O’Connor has suggested is correct.

A cap reduces compensation for proven invasions of bodily integrity supposedly to promote the public availability and affordability of health care. When full compensation for surgically removing the wrong ovary is denied through a cap, as in a case now pending before the Kansas Supreme Court, it becomes the obligation of the state to make up the difference between the jury’s verdict and the limitation. The argument thus has far more traction than Mr. Ho concedes.

CONFUSING CLIENTS WITH LAWYERS

In addition, Mr. Ho’s assertion that one of my law firm’s clients, the American Association for Justice (AAJ), ought to be consistent in its opposition to H.R. 5 with the arguments we make in court, fails to appreciate the difference between clients and their lawyers. AAJ does nothing hypocritical in emphasizing the fact that the federal government has no authority to amend state tort law, even as I argue in court that state constitutions generally prohibit such caps. After all, in the seminal case of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), the Court made plain that “Congress has no power to declare substantive rules of common law applicable in a state,” even if the subject is “commercial law or a part of the law of torts.” That Congress could have the authority to alter state law directly was specifically considered and rejected by the framers of the Constitution. Plainly, H.R. 5′s proposed damage cap is unconstitutional any way one looks at it.

My firm, the Center for Constitutional Litigation (CCL), which does no lobbying, need not limit its in-court legal arguments to those made by AAJ, a client, in a different venue, even though our interests in assuring full and fair remedies to those injured through the fault of others coincide. And AAJ need not limit its arguments in Congress against H.R. 5 to those CCL makes in court. If that were so, members of Mr. Ho’s firm could be accused of being “funded” and limited to the arguments of its clients. In two of the most recent cases in which CCL and Gibson Dunn were opposing counsel, Gibson Dunn represented Philip Morris and a collection of tort reform groups (in neither case was CCL representing AAJ). Yet to suggest that those clients limit their arguments in lobbying forums to those that Gibson Dunn has used on similar issues in court is to deny the independence of the bar — and the separate existence of the client. Requiring such unity of voice of lawyers and clients regardless of the forum is the veritable bridge too far.

Robert S. Peck
Washington
The writer is president of the Center for Constitutional Litigation.

Cerebral Palsy Malpractice Lawsuit Verdict of $29M Against U.S. Upheld – AboutLawsuits.com

Cerebral Palsy Malpractice Lawsuit Verdict of $29M Against U.S. Upheld – AboutLawsuits.com.

Doctors with histories of alleged malpractice often go undisciplined – KansasCity.com

Doctors with histories of alleged malpractice often go undisciplined – KansasCity.com.