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Detroit Medical Malpractice Law Blog

Limitation on birth injury claims lifted by Court of Appeals

  • 26
  • June
    2015

Birth injuries are devastating for parents, as anybody who has been through such an experience can tell you. The frustration can be particularly great in cases where birth injury is caused by medical malpractice. For those who have a strong enough case, there may be the ability to sue for medical malpractice and obtain damages to help ease the financial burden that can follow a birth injury. Victims of medical malpractice leading to birth injury do not always have the ability or opportunity to sue, though.

For example, up until recently, Michigan did not allow medical malpractice lawsuits for injuries that occurred during a pregnancy that had not yet reached 24 weeks, the age of viability. That rule was recently changed when the Michigan Court of Appeals ruled in favor of a woman whose baby was born at 18 weeks because of her doctor’s alleged medical malpractice. 

Patient engagement doesn’t negate physicians’ responsibility

  • 16
  • June
    2015

Increasingly, health systems across the United States are moving toward an approach which aims to increase patients’ involvement in their own care. The idea is that patients who take ownership of their treatment through deeper engagement can help improve their own quality of care and achieve better outcomes.

One program that is allowing patients to do this is Open Notes, a program aimed at encouraging providers to allow patients to have access to doctors’ office notes. The impetus behind the initiative is partly the fact that, under federal law, more Medicare money is available to hospitals and doctors who get better outcomes for patients. It’s also partly about avoiding potential errors. 

Veterans and medical malpractice liability under the FTCA

  • 08
  • June
    2015

Last time, we began looking at birth injury case recently appealed up to the U.S. Supreme Court, and the Feres doctrine which is at stake in the case. As we noted, the Feres doctrine holds that active-duty military members are not able to sue the government for tort relief, as in cases of medical malpractice. What is at stake in the Supreme Court appeal, though, is whether tort relief is available to cover damages for a child who sustains a birth injury.                                    

What is really at stake in the case is whether active military members are able to receive compensation when a government doctor acts negligently in delivering care. For non-active veterans, the Feres doctrine is inapplicable, and litigation under the Federal Tort Claims Act is a possibility. 

Active duty mother appeals for damages from government for birth injury

  • 01
  • June
    2015

All of us depend on medical care at some point, and all of us expect that our providers will exercise an appropriate degree of care in treating us. When providers fail to do this, we know that we have the ability to seek compensation for our injuries, even if we ultimately choose not to do so for one reason or another.

Veterans also have these expectations, but pursuing damages for medical injuries is a little different for vets than it is for civilians. This is especially the case when it comes to active-duty veterans, who are generally unable to pursue the federal government for any damages related to medical injuries. This rule, which comes from a case decided in 1950, is known as the Feres doctrine.

When doctors fail to recommend cancer screening

  • 27
  • May
    2015

We’ve been talking about cancer screening in our last couple posts—the risks, the benefits, and the potential for doctors to make the mistake of failing to recommend cancer screening. The latter issue is an important one, of course, because doctors have a huge responsibility in ensuring that their patients receive a timely diagnosis and proper treatment.

Interestingly, a recent study out of California demonstrates that certain populations may be more at risk when it comes to certain types of cancer, not because of genetic propensities, but because of the health care they have available. According to the study, racial minorities are more likely to go without colon cancer screening than Caucasians because their providers are more likely not to recommend that they receive screening. This, of course, means that racial minorities could be more at risk of developing colon cancer. 

Screening for cervical cancer: guidelines are only guidelines, P.2

  • 18
  • May
    2015

In our last post, we spoke briefly about new guidelines released by the American College of Physicians that govern when health care providers should order screening for cervical cancer. The guidelines are an attempt to balance the risks associated with cancer screening with the obvious benefits of detecting cancer early on.

One thing that needs to be kept in mind is that guidelines are only guidelines, and that physicians have a duty to use their best judgment when caring for a patient. A physician who follows established guidelines concerning cancer screening isn’t immune from making mistakes in judgment. What matters are the particulars of the patient’s situation and the applicable standard of care. 

Screening for cervical cancer: guidelines are only guidelines, P.1

  • 13
  • May
    2015

Cervical cancer, like other forms of cancer, is best treated when physicians are able to identify it early on and begin appropriate treatment as soon as possible. The presence of cervical cancer, according to the American Cancer Society, is typically first determined by a test called a colposcopy.

If something abnormal is seen in this test, a biopsy is then taken to determine the type of tissue at hand. If a biopsy shows that the tissue is pre-cancerous or cancerous, a patient is then given other testing to determine how much tissue is affected.

Electronic records no guarantee against error

  • 04
  • May
    2015

More and more businesses and industries, in an effort to cut costs and streamline operations have been turning to electronic record-keeping in recent years. In the field of health care, the use of electronic health records is becoming a widespread trend, with many in the health care industry expecting that an electronic record system could help cut down on errors and the patient harm—and provider liability—that stems from these errors.

Not surprisingly, it is becoming increasingly clear that the use of electronic records in health care is not a safeguard against all error. More and more medical malpractice lawsuits are involving mistakes in the use of these records, such as misinterpretation of drop-down menus, errors in patient status, typos leading to medication errors, faulty voice-recognition software, and at times plainly inaccurate record-keeping.

Standards for antibiotic use would help patients hold medical professionals accountable

  • 04
  • May
    2015

Antibiotics are obviously very useful in the world of medicine, helping keep infections at bay and allowing patients to recover more quickly. In some cases, they are necessary to save a patient’s life. As with other good things, though, there comes a point where overuse of antibiotics can have potentially negative consequences. This, at least, is the concern among some medical professionals and medical researchers.

A recent study reported in Pediatrics looked at the issue of antibiotic use in neonatal intensive care units in the state of California. What was found was that the rate of antibiotic use varied significantly, with the majority of facilities demonstrating a 40-fold difference in the rate of use. This variability was seen to be independent of infection rates, suggesting that antibiotics may often be used out of habit rather than necessity. 

Off-label drug prescriptions and medical malpractice liability

  • 23
  • April
    2015

We began speaking in our last post about litigation that has been initiated against GlaxoSmithKline in connection with Zofran. As we noted, the lawsuits accuse the manufacturer of failing to warn patients about the risks the drug presents for pregnant women, which include the possibility of birth defects. The issue we raised last time was what liability may attach to doctors who choose to prescribe medications for an off-label use, as is the case with Zofran as used by pregnant women.

One important point is that prescribing medications for an off-label use is not all that uncommon, and physicians are allowed to do so as long as these prescriptions do not veer into the realm of “research.” The distinction, generally speaking, is that research is characterized by interventions aimed at testing of a hypothesis and ultimately contributing to increased knowledge. In cases where research is being conduct with the off-label use of a drug, physicians must take steps to follow established safety protocol and supervision to ensure safety and effectiveness. Patients must also be fully informed of the risks. Failure to do so opens a physician up to liability.  

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