Join us in the 3rd Annual Pegalis & Erickson Lectureship

Albert Einstein College of Medicine of Yeshiva University and Montefiore Medical Center – in joint sponsorship with

The Diane Abbey Law Center for Children and families at New York Law School

Present

The 3rd Annual Pegalis & Erickson Lectureship

Date:  Tuesday, April 17, 2012

Subject: Medical and Legal Initiatives can Further Improve Patient Safety.

Learning Objectives:By attending this activity you will be able to:

Information Bulletin -
The 3rd Annual Pegalis & Erickson Lectureship

• Use Information from closed liability cases to provide additional insights about safety
• Implement a just culture of safety that promotes fairness for healthcare providers and greater safety for patients

Please Register Online:   No Registration or Attendance Fee: www.nyls.edu/pegalis

 

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.”

The Hypocrisy in Medical Malpractice Debate

Posted by Mike Bryant
Monday, October 24, 2011 9:27 AM EST

There are so many things to look at in the ridiculous claims that are often made by tort reform proponents who call for medical malpractice changes. Two areas that often come up are cost savings and the argument that doctors get sued all the time.

A couple of recent items caught my eye concerning each of these topics:

- There is so much fraud out there in the health care system. Sure there can be cost saving if you simple rewrite the Constitution and take away people’s right to sue. You would still have society having to pay for all of the damage that was left behind. But, shouldn’t we start with the Medicare fraud that is out there?

The Washington Post recently reported that :

Miami health-care executive Larry Duran orchestrated one of the largest Medicare frauds in U.S. history, submitting more than $205 million in phony claims and landing a record-breaking 50-year prison sentence for his crimes.

But another piece of Duran’s scheme also caught the eye of prosecutors. They say he extended his fraud through his lobbying efforts, all aimed at getting official Washington to make it easier for mental health centers such as his to make money.

An advocacy group he helped set up, the National Association for Behavioral Health (NABH), has spent more than $750,000 on lobbying efforts over the past five years, including staging “fly-ins” on Capitol Hill and providing advice to group members on how to get around Medicare denials, according to the Justice Department. The group also held fundraisers for lawmakers such as Sen. Mary Landrieu (D-La.) and former congressman Kendrick B. Meek (D-Fla.), records show.

There is a lot of money out there that is simply being stolen and doesn’t seem to be as important to the tort reformers. There needs to be a crack down on the real problems in the system.

- Poptorts took a look at how doctors aren’t really afraid of the courtroom as long as they are suing. Including a United States Supreme Court case where they are fighting to have the right to bring the suit. As is pointed out:

Imagine not being able to bring a lawsuit in a situation like this, when doctors have clearly been wronged, and when the poor are going to suffer for it, right?

If only the ER docs saw the same value helping poor folks get proper treatment like this as helping some of those same patients who are negligently injured. For example, last November, we wrote about Florida legislation that would give ER doctors who treat Medicaid patients “sovereign immunity,” and cap their liability for committing medical negligence against the poor at $100,000.

I wonder if they really understand the hypocrisy and simply don’t care?

Find this article at:

http://stcloud.injuryboard.com/miscellaneous/the-hypocrisy-in-medical-malpractice-debate.aspx?googleid=294972

Med-mal cap does not pass constitutional muster

ALM Properties, Inc.
Page printed from: http://www.nlj.com
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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.

What to do when you’re a Victim of Medical Negligence

 

Published date: 01 September 2011 |

Published by: Reporter

When anyone receives medical treatment the last thing they expect is to have their condition worsened due to malpractice or negligence. This is an unfortunate reality though, leaving many wondering how they can seek redress for their suffering.

We all expect any experience of medical treatment to go smoothly, but unfortunately this is not always the case. Like everyone else, doctors are capable of making mistakes but the nature of their profession means that these mistakes can often have serious consequences.

The unfortunate thing for doctors is that they work within a very complex field and whilst they receive thorough training, this will not always be perfect. This is because not all illnesses and diseases will present themselves exactly as they appear in books and there are a number of factors which can cause symptoms to be disguised or misinterpreted. Doctors, therefore, need to be constantly alert in order to make accurate diagnoses within short time frames and need to be aware of any relevant aspects of the patient’s history.

The problem is that there are times when this does not happen and a misdiagnosis can lead to further complications. During severe cases, the failure to administer appropriate treatment can lead to the death of the patient, leaving families distraught.

In any situation where medical treatment has not been administered to the appropriate level, those affected should seek professional advice. Speaking to specialists, such as medical negligence solicitors, will help establish the strength of a potential medical negligence claim. The solicitors will offer advice on the situation in order to determine the likelihood of success within a legal battle.

It is important to speak to qualified professionals from the outset as they will be able to determine the nature of your claim. All medical negligence solicitors will have received thorough training and should understand the delicate nature of such claims. They will therefore approach all situations with due sensitivity so that claimants feel more at ease discussing their personal situations.

It’s important to bear in mind that medical negligence claims can take a longer time than other claims to be finalised, meaning that you need to be fully prepared for what could be a lengthy battle.

Medical negligence solicitors will discuss all of this with you and will make sure you are fully prepared for the claim process before beginning. Many will also operate under a no-win-no-fee basis, meaning they will not charge you should your claim be unsuccessful. This means that you do not need to worry about your finances whilst pursuing your claim, something which puts off a number of prospective claimants.

PLEASE JOIN US AT A LIVE BROADCAST FEATURING THE PEGALIS AND ERICKSON LECTURE ADVOCATING THE PATIENT SAFETY PROGRAM

“The Second Annual Pegalis-Erickson Lecture” scheduled for Tuesday, April 12, 2011 at 5:30 p.m.

 

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