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Detroit Medical Malpractice Law Blog

Health care system needs better monitoring, prevention of diagnostic errors

According to a recent report by the Institute of Medicine, most Americans receive a wrong diagnosis at some point in their lives. Not every case of wrong diagnosis has serious consequences, of course, but in some cases diagnostic errors can have a significant impact. This is especially the case when diagnostic errors occur in connection with cancer and other potentially life-threatening illnesses.

The situation is likely to become worse, too, given the complexity of the health care system around diagnosis. Unfortunately, it is not easy to gather information on diagnostic errors, since they are typically noticed after the fact, whether in medical malpractice litigation or by means of an autopsy. Also, oftentimes diagnostic errors occur due to errors in the health care system, so it isn’t always possible to lay blame on one physician.

Suing a physician for errors in provision of free medical care, P.2

In our last post, we began speaking about protections at both the state and federal level which shield volunteer physicians from liability in the event of a mistake that injures a patient. We’ve already mentioned the Federal Volunteer Protection Act, the Federal Tort Claims Act, and Michigan’s Good Samaritan Law.

In addition, Michigan has a statute which protects licensed health care providers providing free serves at nonprofit clinics, and another statute specific to retired physicians and dentists. The latter protections are dependent on obtaining a special license. 

Suing a physician for errors in provision of free medical care, P.1

A recent article in the online journal, Medical Economics, focused on an issue that doesn’t come up too often in discussions of medical malpractice. That issue is the liability of physicians for errors in the course of volunteer work. What kind of liability do physicians open themselves up to when they engage in volunteer work, and what options for recovery are available to patients who are harmed by a negligent volunteer physicians?

In reality, medical malpractice suits against a volunteer physician or other health care professional are actually rather rare because of protections at the state and federal level. First of all, the Federal Volunteer Protection Act protects non-profit and government volunteers, including physicians and other health care workers, as long as the services provided were within the scope of the provider’s responsibility, the health care workers was authorized to engage in the services or care at issue, and he or she was properly licensed. As can be seen, there are some limitations on liability protection.

Pursuing damages for medical error as a VA patient, P.2

Last time, we began speaking about the Federal Tort Claims Act and the general elements that must be proven in order to successfully pursue such a claim. One important point that needs to be mentioned about the FTCA is that before a claimant actually pursues litigation under the FTCA, he or she must first file a claim with the federal agency believed to be responsible for the injuries and wait for the agency to deny the claim, take no action, or offer an unsatisfactory settlement.

It is also important to mention that whether or not pursuing a FTCA medical negligence claim is worthwhile depends in large part on the likely outcome of the case in terms of damages. This is also true, of course, of ordinary medical negligence claims. As we mentioned, state law plays an important part in determining liability under FTCA medical negligence claims, and state law affects damages as well. 

Pursuing damages for medical error as a VA patient, P.1

As we mentioned in our last post, VA patients do not have the same ability to pursue damages for medical errors as civilian patients. This does not mean it is impossible, only that the means of obtaining compensation is slightly different and a bit more circumscribed.

The established means of pursuing compensation for VA medical malpractice is the Federal Tort Claims Act. The Federal Tort Claims Act allows individuals harmed by government-employed health care providers to sue the federal government directly, while individual providers may not be sued under the law because of immunity.

Report shows VA investigating fewer medical errors even as errors increase

Veterans’ Administration hospitals, as readers may have heard, do not have the greatest track record in terms of preventing medical errors. To be sure, medical errors can and do occur from time to time at every hospital, even in the absence of negligence. However, hospitals should continually be working on reducing preventable errors, since these can have a significant impact on the quality of care for patients and shouldn't be occurring in the first place.

For its part, the Department of Veterans Affairs, despite pressure to prevent medical errors, is actually getting worse in this area. A recent report by the Government Accountability Office related that the number of investigations for medical errors decreased 18 percent between 2010 to 2014, during which time medical errors increased seven percent.

Work with experienced counsel after serious surgical error

In our last post, we mentioned a recent study which highlighted the benefit of returning to the facility that performed a surgical operation when post-op complications arise. As we mentioned, it is important for any patient who experiences serious complications after an operation to consider whether the providers who performed the operation did so in accordance with accepted standards of care.

When a patient suffers life-threatening complications following a surgery, the costs can be significant, depending on the nature of the complication, how it must be addressed, and any long-term consequences, such as lost earning capacity and pain and suffering. In cases where a surgical complication is fatal, of course, there are not only these costs, but lost earnings from the deceased family member, as well as funeral expenses and emotional damages. 

Surgical operation complications: study says return to original provider/facility

According to a recent study led by a researcher from the University of Utah School of Medicine, patients who suffer from complications after a surgery do best to return to the hospital where the surgery occurred rather than having the problem addressed somewhere else. The study said that returning to the facility where the surgery occurred reduced the risk of death over the following two months.

The basis for the finding makes sense: the providers who performed the surgery are going to have more familiarity with the area operated on and how the procedure turned out, specifically whether there were any complications, and how to best address these when they arise. Physicians who don’t understand the factors connected to a surgical complication are not always going to be able to address the issue as well, which can affect patient’s outcome. 

Doctors have responsibilities in prescribing risky drugs, P.2

In our last post, we began speaking about the risks associated with the Fentanyl spray Subsys and the fact that it is often prescribed for off-label uses, some of which are actually contraindicated by the manufacturer. Because of the toxicity of the drug, as well as the risk of addiction and overdose, there is a very tight system of control around the drug.

But, at the same time that Subsys is highly regulated, doctors are compensated handsomely for prescribing the drug. As with other prescription drugs, pharmaceutical companies compensate physicians for disseminating information about Subsys and attending seminars for the promotion of the drug.  All of this brings up ethical and legal issues concerning how much physicians are allowed to benefit from promotion of prescription drugs. 

Doctors have responsibilities in prescribing risky drugs, P.1

Physicians have a big responsibility when it comes to the promotion and prescription of medications for the benefit of their patients. Because of the way medical care is delivered, patients rely on their doctors to recommend the most beneficial course of treatment, without reference to personal gain. Unfortunately, the system doesn’t always work that way.

A good example of this can be seen with Subsys, a commonly used medical spray containing the pain killer Fentanyl. The drug is manufactured by Insys Therapeutics Inc., and is the only spray version of Fentanyl available on the market. Subsys is indicated only for cancer pain, but is often prescribed to manage other forms of pain, such as back pain. This is problematic, given the risks associated with the drug and its intended use. 

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