I have spent so much of my entire career fighting obstacles in obtaining information, accountability and compensation for my clients who are harmed or have loved once’s killed by medical errors.  It is a fight I am more than prepared to wage.  But it is not a fight I should have to wage.  When errors occur and cause harm, attorneys should not always have to be adversarial to the health care providers.  We should be facilitators of information and communication to help our clients get to the truth of what happened.   We should be able to assist in early resolution of cases that are not dragged out through the tired “deny and defend” approach.

That’s why it’s a breath of fresh air to see that Massachusetts, as in so many other areas, is taking the lead on change.  The Massachusetts Alliance for Communication and Resolution Following Medical Injury (MACRMI) is an organization that is dedicated to transparency and, simply, doing the right thing.  I have been the Massachusetts Bar Assocation’s representative on MACRMI for 5 years and, as a passionate medical malpractice attorney, can vouch for its noble intentions and progress in recruiting many major hospitals to its mission with specific guidelines for achieving its goals.

Impressively, MACRMI maintains a list of attorneys dedicated to this mission.  This list is provided to patients when unintended but preventable harm occurs so that they can have representation through the disclosure and resolution process.  Their website specifically states that they “encourage” patients to get a lawyer. Imagine that – doctors encouraging patients to get lawyers!  (It’s dogs and cats living together.) Why do they do it?  Because they know its the right thing to do.

We need more attorneys on this list. There is more medical negligence occurring than there are experienced and qualified lawyers to handle it.  So how do you get on the list?  Well, first view the video of its recent Forum which will give you a better idea of MACRMI and how it works.  Then call me or go to the website to learn more about how to get on the list.

I hope some of you fellow dogs will join me.

 

 

 

 

 

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The nationwide E. coli outbreak caused by contaminated romaine lettuce grown in Arizona demonstrates that consumers are constantly at risk of suffering from food poisoning.  We feel that transparency about food poisoning and one’s legal rights is essential to protect everyone’s health and to prevent future outbreaks.

The aggressive strain of the E. coli 0157:H7 bacteria found in romaine lettuce is frightening.  To date it has struck at least 172 individuals in 32 states, including three reported cases in Massachusetts, according to the Centers for Disease Control and Prevention.  The outbreak has caused one death and 20 instances of reported hemolytic uremic syndrome, a type of kidney failure, as well as hospitalization in 75 cases.  Because food poisoning symptoms are typically delayed, more reported cases are expected in what has become the largest multistate E. coli outbreak since 2006.

Symptoms of E. coli usually emerge in three to 10 days, and include severe stomach cramps, diarrhea, and vomiting.  In up to 10 percent of cases, afflicted individuals may develop hemolytic uremic syndrome, which can lead to kidney failure and death.

The CDC has urged consumers to avoid eating any type of romaine lettuce, including pre-packaged chopped lettuce and whole heads.  Leafy vegetables are particularly susceptible to E. coli, especially those sold pre-washed and packaged.

Consumers must be able to trust that restaurants and grocery stores are providing uncontaminated food in a safe and sanitary environment that does not jeopardize their health or lives.

What are your legal rights if you become sick due to food poisoning?

Massachusetts law protects individuals who become sick due to food poisoning, including compensation for their injuries. A restaurant or food supplier is strictly liable for food poisoning, which means that a restaurant or supplier of tainted food is responsible to those affected by the food, regardless of whether the restaurant or supplier knew it was tainted, and regardless of the measures they took to ensure food safety.

This stringent legal responsibility is justified because: “[T]he public has the right to and does expect . . . that reputable sellers will stand behind their goods; . . .  and that the consumer of such products is entitled to the maximum of protection at the hands of  . . . those who market them. . . .”  Haglund v. Philip Morris, Inc., 446 Mass. 741, 746 (2006) (emphasis added).

In other words, restaurants and food suppliers have a responsibility to their customers to sell food that is fit and safe for human consumption.  Todd & Weld represents individuals harmed by food-borne illnesses, obtaining, for example, a $1.13 million settlement for a woman who contracted E. coli from salmon served at a restaurant.  So, when food suppliers don’t live up to their responsibility, we at Todd & Weld feel it is our responsibility to prevent this from happening to others.

Posted by: justransparency | April 30, 2018

A Must Attend for Those who Care about Safer Health Care!

Many of us dedicate our lives to efforts to improve health care safety and to resolve cases involving medical error sooner and with more transparency.  But our experience is like driving in Boston, only amplified beyond estimation.  It is an uphill road, full of potholes and frustrating delays, with unexpected frustrating detours or dead-ends.

However, one group continues to pave the way to a better future for all of us.

On Tuesday, May 15th at the Mass Medical Society, MACRMI will be hosting our 6th Annual Forum on Communication, Resolution and Transparency following medical errors.  This is an incredible opportunity for plaintiff and defense med mal attorneys (and health care safety experts) to learn about a means of resolving cases in a more productive 21st Century manner.

Simulation of the how the CARe process works “behind the scenes”

 

  • Moderated simulation discussion panels
  • Keynote by Richard C. Boothman, JD of the University of Michigan
  • Implementation background and guidance
  • Release and discussion of data on claim rates and costs from pilot study
  • Opportunity to talk with current MACRMI members about implementation.

It takes place from 10:00 am to 12:30 pm and includes lunch.

For those of us who are medical negligence attorneys, our input is essential to improving a noble, if imperfect, method of improving transparency and resolution.

Please be sure to register.  I hope to see many of you there!

Jeff

 

 

Posted by: justransparency | January 19, 2018

An Important Reminder After a Tough Loss.

While suffering from a recent loss of a medical malpractice trial and struggling to make sense of the verdict, I accidentally came across an article I wrote for the Massachusetts Bar Association two years ago.  It is a reflective piece about my experience volunteering at an orphanage in Romania with my family.  I reminds me, as a lawyer, to choose happiness whenever possible.  While we cannot forget that it is those clients who do not receive justice that suffer the most, we must keep the faith and inspiration needed to continue the fight for others, so that their own justice can be achieved.

I hope many of you receive the same inspiration I received from this rather unexpected source – a 10 year old orphan in one of the remotest places on earth.

https://www.massbar.org/publications/lawyers-journal/lawyers-journal-article/lawyers-journal-2015-november/outside-counsel-choosing-happiness-day-by-day

Posted by: justransparency | December 26, 2017

Double-booked surgeries. Are doctors overlooking patient safety?

A recently published study showed that hip surgery patients were about twice as likely to suffer complications when their surgeon was overseeing concurrent operations, compared to patients whose surgeons were not double-booked.

The Canadian study examined over 90,000 hip operations at 75 hospitals in Ontario, and found that the longer the duration of simultaneous surgeries the more likely patients were to suffer complications within a year, such as infections and follow-up surgery.

Double-booked surgeries are generating considerable controversy in the medical industry, especially here in Massachusetts where they are  the crux of a whistleblower lawsuit filed by a former Mass. General anesthesiologist, who claims that surgeons at the hospital conduct double-booked surgeries to boost their income while putting patients at risk, according to the Globe.

The Canadian study is the broadest to date of the risks of simultaneous surgeries, giving it significant credence as a powerful counter to previous peer-review studies in the U.S. finding no significant difference in complications from concurrent operations.

Given the primacy of patient safety, doctors, at a minimum, must inform patients before a surgery that they intend to overlap surgeries. Obtaining informed consent is both an ethical and legal requirement that can lead to a lawsuit even if the surgeries do not result in any serious complications.  If surgeons are concerned that patients will not grant them permission to perform two operations at once, then that probably tells you all you need to know about whether they should do it.

While proponents of overlapping surgeries point to greater access to specialists and increased efficiency, common sense suggests that divided attention between simultaneous procedures can increase the likelihood of mistakes.  This is especially true of doctors in training who need careful supervision.

What if the primary surgeon is not in the operating room when an urgent need arises? What if a patient is under anesthesia longer than necessary waiting for a doctor to arrive or return?

“If your surgeon is in multiple places, there’s an increased risk of having a complication,” Dr. Bheeshma Ravi, a hip surgeon at Sunnybrook Health Sciences Centre in Toronto and lead author of the Canadian study told The Boston Globe.

The obvious conclusion is that physicians should never place a desire for a fuller schedule and more income ahead of patient safety.

Posted by: justransparency | October 13, 2017

JURY VERDICT EXPOSES MAJOR CAUSE OF INCREASING MATERNAL DEATHS.

This recent article in the Boston Globe published on July 29, 2017 highlights what has been a major problem in recent years in the United States – increasing deaths of mothers following the birth of their child. While much of the rest of the world has decreasing maternal death rates, the US rates have been increasing at an alarming rate as the Globe chart reveals.

According to a New York Times article entitled “If Americans Love Moms, Why Do We Let Them Die?”(coincidentally published the same day as the Globe article), “motherhood is far more deadly in the United States than in other advanced countries.” They are far more likely to die in the U.S. than in Canada, France, Germany, Great Britain, Italy, Greece, Ireland, and Spain, where death rates have plunged.

What these frightening facts demonstrate is that part of the problem is that we are not paying enough attention to the mother after delivery. Following delivery, the mother is not out of the woods.  Most concerning, she is still susceptible to severe internal bleeding (hemorrhaging) and death.  However, all too often health care providers fail to detect hemorrhaging until its too late.  Part of the reason is that once the baby is born the mother gets neglected by the health care providers who are not monitoring her carefully enough.  This results in unvalidated assumptions that the mother is doing fine when she is not.  Then, when tragedy strikes and the mother bleeds to death, they deem her death “unpreventable” thereby foreclosing any opportunity to learn from mistakes to prevent more deaths.unva

The number one cause of maternal hemorrhaging and death is a common condition called uterine atony, where her uterus fails to contract after delivery. This prevents the uterus from constricting the blood vessels and results in severe bleeding that pools in the uterus.  This can be treated with medication and, importantly, a simple blood transfusion.  However, the danger is that it can go undetected because the mother does not notice it.  In addition, health care providers may assume that she looks fine (or just sleepy) when she is actually in the early stages of hemorrhagic shock.  Therefore, the mother’s vital signs, including her blood pressure, heart rate, and oxygen saturation rate, are critical and must be monitored consistently and carefully to give an accurate picture of how the mother is doing.  Failure to do so can lead irreversibly toward death.

A medical malpractice trial I had in September is a sad case study of this problem. Our client had a C-section to deliver her fourth child.  The child was born healthy but during the delivery complications arose when she suffered uterine atony and when the doctor accidentally cut a hole in her small bowel.  The hole was repaired and she was given medication to treat her atony, but she lost one-fourth of her total blood volume as a result, which qualified as a postpartum hemorrhage under established guidelines.

Due to the hemorrhage and that she was severely anemic during her entire pregnancy up to delivery, the standard of care required an immediate blood transfusion. Post-delivery the OB/Gyn who did the C-section ordered that blood products be available should she need it “in the future.”  He testified that if she lost any more blood, it could be life-threatening.  The cross-matched blood was then available at the blood bank and could be transfused in 15 minutes, but was not.

After the delivery, he left the hospital and signed her out to another OB/Gyn to take over her care. An hour after this defendant took over, the mother started bleeding profusely from her vagina, which the defendant described as “gushes” of blood in the medical record.  The cause of this was that her uterine atony returned once the medications wore off.  However, although the bleeding continued, the doctor consistently failed to order a blood transfusion although she was aware that life-saving blood was immediately available.  Instead, she relied on invalidated assumptions that the mother was doing just fine, despite the fact that her vital signs had not been recorded for over an hour.

Eventually, she lost so much blood that she could not hold out any longer and she went into cardiac arrest. The blood transfusion she desperately needed did not happen until about 10 minutes after she arrested.  Then, it was literally too little, too late.  After hours of CPR, transfusions, and hysterectomy she died.  She left behind her brand new baby and three other young children.

At trial, the defendants relied on an autopsy report which concluded that the cause of death was amniotic fluid embolism (AFE) to avoid liability.  AFE is extremely rare, causing death in 1 out of 100,000 new mothers.  It is considered unpredictable, unpreventable, and untreatable for which doctors cannot be held liable.  However, the autopsy was conducted by a medical examiner who was not given critical medical records by the hospital which would have confirmed that she bled to death due to uterine atony.  We demonstrated that the autopsy was completely flawed and that her death did not fit the criteria for AFE.  We also argued that it was suspicious that the Ob/Gyn called the medical examiner’s office an hour after she died to suggest that the death may have been from AFE, which may have biased the medical examiner’s conclusions.

Following a three week trial and a week of deliberations, the jury found against the second Ob/Gyn in favor of the family in the amount of $4 million for the mother’s conscious pain and suffering.

Nevertheless, this case illustrates another obstacle to saving mother’s lives. Doctors sometimes make invalid assumptions about the new mother’s condition without the clinical evidence needed to substantiate that she is doing fine.  Then, based on that same lack of evidence, they leap to a self-serving conclusion that her death was unpreventable.  Although justice ultimately prevailed, this case illustrates why improvements in preventing maternal death have been ineffective in the U.S.  If we continue to fail to confront this problem with honesty, transparency, and accountability, we will not learn from our mistakes and more deaths and motherless children will result.

 

 

Posted by: justransparency | August 18, 2017

Study Shows Room for Improvement.

While the recently released 2017-2018 rankings of hospitals by U.S. News & World Report celebrate top performing medical facilities across the country, the study also shows that too many hospitals are falling short in consistently providing quality care.

The sobering finding that many hospitals have significant room for improvement to meet best practices makes all the more paramount the need for regulators, patient safety advocates, and the legal system to hold medical providers accountable for the critical health services they provide to patients.

The U.S. News rankings of hospitals are an invaluable resource to patients and their families, and help to maintain the spotlight on patient safety. Hospitals have to remain diligent at all times in ensuring the quality of care they provide consistently meets or exceeds what is expected.

For relatively common procedures such as knee or hip replacements, removal of part of the colon, or heart bypass surgery, “[a]ny hospital should be able to treat … patients successfully, and many do – but not all [do],” according to U.S. News.

In rating overall quality of inpatient care, the publication used numerous measures of care to evaluate more than 4,500 U.S. hospitals for nine common procedures and conditions. While more than 1,200 hospitals were rated “high performing” in at least one procedure or condition, only 48 were rated high performing in all nine procedures and conditions.

Medical centers were also rated across 16 areas of complex specialty care, such as cancer, endocrinology, and neurosurgery. Of the nearly 4,700 hospitals reviewed for specialty areas, “only 152 U.S. hospitals performed well enough to be nationally ranked in one or more specialties,” U.S. News writes.

No one would dispute that we cannot expect perfection in all situations and cases. However, it is equally indisputable that we all have a right to expect that all hospitals will have “high performance” in as many categories as possible. Otherwise, if we accept lower standards of care, then lower standards of care is what we will receive.
For more information, please contact Jeffrey Catalano at (jcatalano@toddweld.com) or 617.720.2626.
Jeff has been selected to the Best Lawyers in America directory for personal injury and product liability litigation (plaintiffs) for three consecutive years (2015-17), and has been designated as one of Top Rated Lawyers in Medical Malpractice by The Boston Globe and Wall Street Journal. He has been chosen as a New England Super Lawyer each year since 2009.

Posted by: justransparency | March 14, 2017

Continuing the March Toward Medical Transparency.

At at time in our society when public marches bring to the forefront progress we need to make on a variety of important issues, one march is of the more the silent type.  That is the march toward increasing transparency following medical injuries, which are the third leading cause of death in the U.S.  More and more hospitals are signing up for disclosure programs such as those created by the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI).  I have been proud to be the Massachusetts Bar Association’s representative on this Alliance for several years.  I have been pleased with how receptive this Alliance and its associated hospitals have been to the concept of involving an attorney on behalf of the patient early on.  They recognize it is an imperative that is both moral and efficient.  The patient has the security of an advocate and counselor in her corner in achieving appropriate compensation.  The hospital and insurer see the attorney as someone who can facilitate a productive resolution by advising his client of the risks of rejecting a reasonable offer and choosing protracted litigation.

Nevertheless, many remain skeptical, which is unfortunate.  Still too many doctors and insurers fall back on the old “deny and defend” mentality to avoid accountability.  Still too many lawyers think that suing first, asking questions later, is the best approach.  Neither tactic is beneficial to the person who matters most in these circumstances, the patient.

Recently, the Washington Post wrote an article confirming the benefits and challenges of apologies and disclosures following medical errors.  As I stated in the article, attorneys provide very important roles in helping patients to move on with their lives by achieving fair compensation as soon as practicable.  But in my experience, good attorneys can help both sides navigate through the turbulent emotional waters that often impede just resolution.

So as time marches on, so do we.  And we hope many more will join us so that for every fight we win against something like cancer, we don’t lose another to preventable medical errors.

 

 

Recently, a Boston-based doctor underwent a hysterectomy during which a power morcellator was used, and during the procedure undetected cancer was spread throughout her abdomen, resulting in advanced cancer.  The FDA recently reported that three major Massachusetts hospitals failed to properly report patient deaths and injuries potentially caused by medical devices.  The report follows the FDA’s investigation last December of Massachusetts General, Brigham and Women’s, and UMass Memorial, as well as other hospitals around the country, concerning infections possibly linked to duodenoscopes, which examine the small intestine, and the potential spread of uterine cancer by a surgical device known as a power morcellator, which cuts up tissue. Most concerning is that the FDA discovered that the Massachusetts hospitals and others failed to timely report incidents where patients were harmed by these devices, or failed to report the incidents at all.

The FDA requires hospitals to report patient injuries and deaths suspected to be caused by medical devices.  The reason is obvious.  Reporting allows the FDA to analyze potential harm to patients, and determine whether new safety regulations are needed.  Without hospitals fulfilling this mandate, the FDA cannot ensure that devices used in medical settings are safe for patients, potentially compromising the safety of any patient exposed to such devices.  This effectively strips patients of being able to make informed decisions about their medical care, and could expose them to an increased risk of harm or death.

Todd & Weld firmly believes that transparency is a solution to rampant harm and death to patients to due to medical errors and medical devices.  I am proud to participate as the only attorney representing patients on the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI), which promotes hospital programs focused on disclosure and resolution after a medical mistake. 

I look forward to discussing these programs with attorneys of the Worcester County Bar Association on Monday, February 6th from 4 pm to 6 pm at the Worcester Registry of Deeds.  Please contact me if you would like more information about this event.

 

Posted by: justransparency | March 10, 2016

“We want to say we’re sorry. Now what?”

As a dedicated member of MACRMI, I find it very encouraging that hospitals across the country are embracing the concept of admitting medical errors to patients and apologizing for them.  This was reinforced in a recent Wall Street Journal article where it was reported that “Evidence has accumulated that the approach can improve patient safety and substantially reduce malpractice costs.”  So, now that providers know that apologizing is imperative, for many the question is “Now what?”  Lost in the discussion is how and when to apologize and admit the error.  As an attorney representing patients, I have seen many instances where the hospital intends to do the right thing, but the message is interpreted negatively by the patient.  Most of the time, the admission and apology helps to diffuse the situation and often leads to an early non-adversarial result.  However, it is sometimes the case that the apology or admission initially is seen as an acknowledgement that the provider let them down, and the reason may not be easily excusable (e.g. giving the wrong medication, failing to convey a negative imaging report or lab result).  In all cases, it is important to remember that those who have been harmed are suffering substantial physical and emotional pain after the event.  Their judgments and perceptions are not impartial or objective, especially at the early stages.  They are also overwhelmed with grief, depression, and even anger and may not be in a place to deal with speaking with doctors, risk managers, or insurance claim representatives right away.

The WSJ article goes on to state that “The programs require a commitment from hospital administrators and physicians to be transparent about risks and adverse events.  Patients can still seek legal representation at any time.”  However, for such programs to be effective, patients should be encouraged to seek legal representation early in the process, and certainly before any meeting to discuss what happened and how the provider wants to resolve it.  To accept this concept, it is important to view plaintiff’s lawyers differently than many have viewed them.  Understand them not as obstacles to resolution, but as collaborators toward it.  Many of us understand that one of the hats we wear is as “counselor”, in the broadest meaning of the term.  In that role, attorneys can help patients process information and respond appropriately to pave the path toward early resolution while also protecting their rights.

MACRMI embraces the concept of encouraging patients to seek legal representation because we realize that is it not only beneficial to the patient and the process, it is also the ethical thing to do.  Plainly stated from an objective point of view, few of us would want our elderly parent, infirm friend, or even adult child having substantive discussions about resolution without legal assistance.  Hopefully, this is the mindset all hospitals will have when they decide to embrace the noble goal of transparency.

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