Ben Rubinowitz, a partner at our firm, has been asked by the Mount Sinai School of Medicine to deliver a Grand Rounds lecture to its radiologists. This talk will specifically focus on medical malpractice and communication issues that lead to medical negligence. Throughout his 30 years as a trial lawyer, Ben has been lecturing to doctors, lawyers and patients concerning all areas of medical malpractice and personal injury. Ben’s lecture will take place on February 8, 2017.
As healthcare evolves so does medical malpractice. The ECRI Institute just published its 2017 Top 10 Hospital C-suite Watch List. Here are the top 10 issues and technical challenges faced by hospitals in 2017.
- LIQUID BIOPSIES
Liquid biopsies are tests using patients liquids such as patients’ blood, urine or plasma rather than tissues. They are easier, cheaper and less risky than needle or surgical biopsy of tissues. Mostly used for patients with cancer, these types of biopsies are the new trend but they are so new that their reliability is still questionable.Hospitals using these tests need to set up a solid genetic test clinical utilization process to mitigate diagnosis error.
Failure to provide adequate cyber security in a healthcare facility can be medical malpractice. Last year, healthcare became the most frequently hacked industry in the US. According to a recent ECRI analysis, 90% of healthcare providers suffered security breaches in the past. With attackers spending an average of 200 days in a network it is estimated that 1 in 3 Americans will have his or her health records compromised by hackers in 2016. Every patient breached record costs an average of $363. Cyber attacks cost the healthcare industry yearly an average $6 billion. Last year hackers stole $88.4 million by hacking health records.
Quest Diagnostic, a medical laboratory based in New Jersey but handling tests for many New York City Healthcare facilities just announced that it was hacked. 34’000 patients had their data exposed according to the New York Times.
Health records are the main targets of cyber attacks but medial devices are also being hijacked putting patients at risk of dangerous health incidents. To make sure patients are safe and to avoid negligence lawsuits the healthcare industry has to fight back. Equipment needs to be proprely managed and security patches need to be timely implemented. Network security needs to be reviewed on a regular basis. Vulnerable medical devices must be identified. When reusing an electronic medical device on a new patient, the medical staff must make sure that all previous data are erased. Requests for Proposals to manufacturers or consultants must be exchanged in a cyber safe manner. New devices or patches that are added to the network must be tested before being released.
Medical Malpractice cases in New York are often very complex. Because the cases are too complex for a non-doctor to determine if the patients was the victim of a medical malpractice, the testimony of a medical expert is required for almost every medical malpractice case to go to the jury. However in some very rare cases in which the medical malpractice is “obvious” medical expert testimony may not be necessary.
In a recent NYC medical malpractice case, a patient won his medical malpractice case without presenting medical expert testimony. The patient sustained burns after his orthopedic surgeon inadvertently left a hot mallet on his left thigh and abdomen during an arthroscopic surgery. The patient sued the surgeon and his practice group for medical malpractice. After the surgeon admitted in his deposition that he had committed an error, the patient moved for partial summary judgment on the issue of liability. The surgeon submitted an affidavit that attempted to explain that despite his deposition, the operating room staff was ultimately responsible for the error. The court found the surgeon’s argument unavailing and partial summary judgement was granted to the plaintiff by the Bronx Supreme Court as to the surgeon only.
In Legakis v. New York Westchester Square Medical Center,et.el., 2016 NY Slip Op 07843, the Appellate Division, First Department, modified by also granting partial summary judgment on the issue of liability against the orthopedic surgeon’s practice group, and affirmed. The court held that the trial court did not err in granting partial summary judgment on the issue of liability against the orthopedic surgeon and partial summary judgment on the issue of liability should also be granted against the orthopedic surgeon’s practice group. The plaintiffs did not rely on res ipsa loquitur relying on the defendant’s deposition testimony and medical records. The Court held “…this is the rare case in which the ‘prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable and unrebutted,’ so that summary judgment on liability is proper (Thomas v New York Univ. Med. Ctr., 283 AD2d 316, 317 [1st Dept 2001] [internal quotation marks omitted]).”
Our firm is proud to announce that New York Medical Malpractice Lawyer Marijo C. Adimey obtained a $1.27 million verdict in a colonoscopy case in Brooklyn, New York City.
The plaintiff, Lola Heifetz (63), went to Dr. Robin Baradarian and The Brooklyn Gastroenterology and Endoscopy, PLLC on September 26, 2010 for a routine screening colonoscopy. Ms. Heifetz, of Ukraine descent, emigrated to the United States over thirty (30) years ago. She learned English, became a U.S. citizen, obtained her lab technician certificate, and started working as a lab technician at Maimonidies Medical Center. She worked at Maimonidies Medical Center for almost thirty (30) years until the day of the colonoscopy.
A colonoscopy is a screening and diagnostic tool used by gastroenterologists to evaluate the inside of the colon and identify ulcers, colon polyps, tumors, and areas of inflammation or bleeding. Performed under a mild form of anesthesia, a thin, flexible tube is used to examine the inner lining of the large intestine, i.e. the rectum and colon. The scope is inserted into the anus, through the rectum and then passed through the entire large intestine to the cecum. Passage of the colonoscope through the intestine is incredibly important, as improper handling of the scope could cause injury to not only the bowel itself, but vital organs outside the bowel including the spleen.
Pictures of our partner Jeffrey Bloom speaking on “Cross Examination of an Expert Witness in a Medical Malpractice Case” last week in New York City at the New York State Bar Association “Bridging the Gap Winter 2016” program. Jeff stated that not only was the seminar very successful but “I found it to be particularly rewarding to share my knowledge of over 35 years with newly admitted lawyers to help them to bridge the gap between law school and the reality of practicing law in New York State. I feel it is an obligation to give back to our legal community, especially to newly admitted attorneys.”
In Raplee, Jr. V. United States The U.S. Court of Appeals for the Fourth Circuit, :Docket#14-1217, plaintiff initially filed a medical malpractice claim with Maryland’s alternative dispute resolution agency within the Federal Tort Claims Act’s (FTCA), 28 U.S.C. 2671 et seq., limitations period. However, plaintiff did not file a complaint in federal court until well after that period had passed. The district court dismissed the complaint as untimely. The court concluded that, because an “action is begun” under the FTCA only by filing a civil action in federal district court, plaintiff’s claim was untimely. The court also concluded that plaintiff failed to demonstrate that any extraordinary circumstances warranted equitable tolling. Accordingly, the court affirmed the judgment. Read Opinion here.
Medical technology can prolong life expectancy. However when not proprely handled, complex medical equipment can also increase the risk of medical malpractice.When the staff is not adequately trained or is too busy, medical errors related to technical equipment can occur. Medical malpractice related to technology hazards can seriously injure or kill patients. The ECRI Institute is closely monitoring risks and related medical errors related to new health technology. Every year the patient advocate organization publishes a report of the 10 biggest technology hazards. Here is the 2017 ranking:
- Infusion error
After a nurse or a member of the medical staff installs a new infusion pump for a patient with an IV line, it seems obvious that he or she would check if the medication drips proprely in the tube. Unfortunately, this simple step is often neglected making infusion errors the biggest technology hazard in healthcare. Physical damages to the pump or staff not making appropriate use of the roller clamp on the IV tubing can cause uncontrolled flow of medication to the patient .”IV free flow” is mostly the result of medical malpractice that is easily preventable. It can cause severe harm to patients. Some of them die.
Failure to diagnose breast cancer at an early stage or delay in treating breast cancer early can have deadly consequences. Early detection of the disease through regular screening such as mammogram is essential for every woman over 40 year old. According to Cancer.net, women who are diagnosed when the cancer is located only in the breast have an almost 100% chance to survive for at least 5 years. If the cancer is detected after it spread to the regional lymph nodes, the 5 year-survival rate is 85%. A woman diagnosed with breast cancer that spread to another part of her body has a 26% chance to survive more than 5 years.
Statistics also indicate that only 61% of breast cancers are diagnosed at an early stage. Unfortunately, despite campaigns such as the Breast Cancer Awareness Month that ended Yesterday, too many women over 40 years old are still not getting regular mammogram. 29% of women who have health insurance and should be screened are still not doing it. Among women who do not have health insurance, as many as 68% of them are not getting mammograms. Not having an insurance is not an excuse for not getting regular mammograms. In every city, charitable organizations offer free screenings for women who can’t afford to pay for them. In New York our firm is sponsoring free mammography vans through the Judges and Lawyers Breast Cancer Alert.
FAILURE TO DIAGNOSE BREAST CANCER CAN BE MEDICAL MALPRACTICE
Compartment Syndrome occurs when the pressure within a closed anatomic space (a compartment) becomes so elevated that capillary perfusion is compromised. Any closed anatomic space including the abdominal cavity is at risk of developing a compartment syndrome. Abdominal compartment syndrome is a clinical disease spectrum that results from increased intra-abdominal pressure (IAP) due to tissue edema or free fluid collecting in the abdominal cavity. Click above to read more.