Medical Malpractice Bulletin for March, 2009

CONTENTS:

Perspective: Money doesn’t buy health

A recent report indicates that the cost-benefit of healthcare in the US falls behind leading economic competitors. The Business Roundtable concludes that “America’s healthcare system has become a liability in a global economy.” Spending on healthcare per person is about 2 ½ times more than any other advanced country such as Canada, Japan, Germany, the United Kingdom and France, where government involvement in health care is greater than in the US. Somewhat surprisingly, what we get in benefits for what we pay reveals an even greater discrepancy when the US is compared with developing countries like China, India and Brazil. Bottom line: “other countries spend less on healthcare and their workers are relatively healthier.” Next ->

Wyeth v. Levine: FDA approval does not protect against lawsuits.

When Diana Levine lost an arm due to an intra-arterial injection of Wyeth’s drug Phenergan (promethazine), she sued the manufacturer. Wyeth claimed immunity from suit in state court because the feds, through the FDA, approved the labeling of the drug. Unlike the court’s prior ruling regarding medical devices, Riegel v. Medtronic,   the labeling of a drug was deemed not to protect the manufacturer. The Supreme Court ruled that Wyeth could not hide behind FDA approval in defending itself against misuse of the drug. FDA approved labeling was deemed to be the “minimum” warning required to be published. (if the link fails, paste this URL into your browser http://www.supremecourtus.gov/opinions/08pdf/06-1249.pdf ) The Wall Street Journal argues that this ruling will significantly reduce the availability of new, and possibly even older, drugs with serious potential side effects. The Supreme Court felt that a stronger label urging an IV drip route rather than IV push could have prevented the damages caused by the intra-arterial injection.

Perhaps.

[Editor’s note: Was the problem not the result of improper administration (into an artery instead of a vein)? Is this really the drug’s fault?]

A news summary of the matter is available at MedpageToday.com.

Arizona Supreme Court allows legislature to define an “expert witness”

The Arizona Supreme Court ruled 4-1 last week that the legislature does indeed have the power to further qualify the definition of an “expert witness,” as it did when it enacted a law doing just that in 2005. The law, supported by physicians, was meant to curb testimony by so-called “hired gun” experts. The issue before the Court was whether only the judicial branch of government had authority over such courtroom procedures and the qualification of witnesses. A news article succinctly summarizes the issue. For a copy of the decision, click here.

“This is no more an expert report than my son’s tricycle is a Harley”
That was the way Justice Don Willett described a plaintiff’s narrative prepared by an expert witness for a Texas court. Texas enacted malpractice reform in 2003. Part of the reform requires, in effect, a statement of merit as to the violations of the standard of care for each case. Obviously, Justice Willett was not impressed.

Questions to ask. Questions you might be asked. Depends on which side you’re on.
Most plaintiff attorneys know how to ask questions. Most defense attorneys know how to prepare their clients to answer them. New York plaintiff attorney Gerry Oginski’s refreshingly rational blog posts include one with several examples here.  I also recommend his surprisingly objective video tutorials directed at patients who feel they may have been the victim of malpractice. They strike this viewer as doing more do discourage frivolous lawsuits than the AMA.

More on stroke

LATimes urges lawmakers to expand Good Samaritan law.
Does a Good Samaritan law protect only “medical” care rendered? A recent California Supreme Court case ruled  that a volunteer rescuer was not protected by the law because she was not rendering “medical care,” but merely removing a victim from a wrecked vehicle. The Los Angeles Times editorializes that such a law gives people who are inclined to help “reason for pause.” The Times urges the Legislature to “expand the law so that it protects all well-intentioned amateur rescuers.”

A comedy of (not funny) errors…
•    Doctor writes order for very dangerous, paralyzing, ICU-only drug… on the wrong patient and one who is on a medical unit.
•    Inexperienced resident pharmacist prepares drug infusion, correctly labeling the drug as highly dangerous and sends it to medical unit.
•    Pharmacy tech delivers drug to medical unit.
•    Per protocol, two medical unit nurses verify the correct drug, dosage, patient, and infusion rate… not noting that it is only for ICU use.
•    Infusion begun on wrong patient.
•    Patient goes to the bathroom and collapses, being able to yell out for help as he goes down. Is resuscitated, fortunately with no apparent ill effects.
Hard to believe at least 5 clinicians missed this error. Click here for details and lessons to be learned from this case.

Proposed Arizona law makes it harder to sue an ER doc
The Arizona Republic recently reported  that proposed legislation in that State would require plaintiffs suing emergency department physicians to prove malpractice by “clear and convincing evidence” in order to win a lawsuit. The bill’s author says that “the need for the change is supported by a recent study by the American College of Emergency Physicians,” which gave “Arizona an ‘F’ in access to emergency care.”