Chemnick | Moen | Greenstreet

Medical Malpractice. It's All We Do. 206-443-8600

The CMG Voice

Alright, Once Again: Is Coffee Good Or Bad For You?

Posted Tuesday, January 16, 2018 by Gene Moen

Not a week goes by when we don’t hear information about certain foods or other substances hurt or help our health. Coffee and alcohol are the big ones, with some articles warning us about too much or too little of either. The latest research, from England, was reported in November, 2017 in MedPage Today. The overall conclusion was that daily consumption of coffee is not only safe, but likely to benefit health.

The research analyzed more than 200 studies, and the researchers concluded that drinking three or four cups of coffee a day reduces overall mortality, cardiovascular mortality, and cardiovascular disease. In addition, the studies showed a reduced incidence of cancer, and a lower risk for non-alcoholic fatty liver disease, liver fibrosis, and liver cirrhosis as well as type 2 diabetes and Alzheimer’s disease.

The numerous studies that were analyzed found no consistent evidence of harmful effects from coffee consumption, except for some related to pregnancy and fracture risk in women. Coffee consumption was associated with low birth weight, preterm birth, and pregnancy loss. In women there was an association between age and coffee consumption in terms of risk of fracture.

The authors of the meta-analysis cautioned that much of the evidence cited in the studies was low quality. Randomized trials may be needed to be more certain about the health impact of caffeine consumption, but the high cost of such studies coupled with the large sample size required may complicate the possibility of doing such studies. Nonetheless, the analysis seemed to support that coffee consumption, possibly optimized at 3-4 cups a day, is unlikely to result in significant harm to those who indulge. Good news for Starbucks!

Permalink to this entry

Wisconsin bill would allow cameras into operating rooms

Posted Thursday, January 11, 2018 by Tyler Goldberg-Hoss

Often our office gets calls regarding claims that an error occurred during surgery, causing the patient harm. Because the patient, obviously, has no memory of events occurring during surgery, the only evidence available to us of what went on is in the patient’s medical records.

It is often the case that such records fail to shed light on precisely what occurred, and why. As a result, it is often difficult or impossible to prove that the injury was caused by an error by a medical provider, versus some other, non-negligent reason.

Now, at least in Wisconsin, lawmakers are considering a bill to allow patients to decide to audio and/or video record their surgeries.

Proponents of the bill believe that the opportunity to record surgical procedures can not only identify possible human error, but also offer protection to surgeons and other medical professionals who have done nothing wrong in a surgery, and still there was a bad outcome.

Identifying human error is meaningful in keeping patients safe. Without doing so, there is no accountability for wrongful actions, and no incentive to change or improve to make future patients safer.

Protecting doctors and other health care providers in surgeries is also a laudable goal. If video in particular were available, it would likely reduce the amount of lawsuits filed in situations where the patient or the patient’s attorney gain a fuller understanding of what went on in the surgery, allowing reasonable people to conclude whatever injury occurred was not the result of a wrongful action.

You can read an article on the bill here:

Proposed law would put cameras in operating rooms

Permalink to this entry

Do NSAIDs Effectively Treat Back Pain?

Posted Monday, January 8, 2018 by Gene Moen

Back pain is one of the most pervasive, persistent, and difficult medical conditions to treat. Patients spend huge amounts of money on chiropractors and massage therapists to deal with the pain. There is a small army of surgeons, both orthopedic and neurosurgeons, who do surgical procedures to try to alleviate chronic back pain.

Hospitals often have special departments that specialize in spine surgery, most of which is related to the lumbar spine. And, of course, government agencies dealing with workers compensation devote much of their resources to evaluating and approving treatment for back problems, and spend large resources to make up for the workers’ missed pay. Finally, there is the human cost involved in people being in chronic pain that severely impacts their lives and that of their families. Economists have come up with estimates of billions of dollars lost in worker productivity.

It is not surprising that many people have looked for simple medical solutions to the problem. And that primarily consists of nonsteroidal anti-inflammatory drugs (NSAIDs). A recent study, however, found that such drugs really do not help much, if at all. Compared with placebos, the study found little clinical evidence that NSAIDS were effective.

Dr. Charles Kim at the NYU Langone Medical Center in New York believes this is true because there are so many diverse causes for back pain. “Every few years a study like this pops up saying that there’s little or no help for back pain with NSAIDs, acetaminophen, surgery, injections, physical therapy, or yoga.”

Dr. Kim believes that pain is probably the most complex problem encountered in medicine: “it can be due to a whole slew of things, whether it’s inflammatory, a muscle pull, a mechanical problem, or arthritis in the spine.” He went on to say “there are whole textbooks on the diagnosis of back pain — it’s a very nebulous diagnosis.”

The study that found little efficacy for NSAIDs in treating chronic back pain also included a systematic literature review of other trials of such drugs in treating neck pain, acute or chronic low back pain, and sciatica. The outcome: no evidence that showed a clinically important difference. The disabilities and life impact of back pain remains a major problem in our society with no clear solution, either medically or surgically.

Permalink to this entry

Smoking And Obesity Impact The Outcome Of Surgery

Posted Thursday, January 4, 2018 by Gene Moen

All attorneys who handle medical malpractice cases know that juries have negative attitudes about patients who smoke or who are obese. In focus groups, we have found many who automatically blame a poor outcome, especially in cases involving surgery, on the patient who smokes or is obese. Part of that is the tendency of juries to blame patients in general, because they don’t want to think that any encounter with a doctor involves risks of poor outcomes for themselves. Part of it is the feeling that people should be personally responsible for their bad outcomes in life and not blame others. Surprisingly, in focus groups this attitude is persistent even for those who themselves are obese or smoke.

A recent development in England shows that health care providers share the negative view of smokers and obese people, but it is based on their perception that surgical outcomes for such patients are, indeed, less favorable. According to a story on CNN, a large county in England recently announced that it would not authorize elective surgeries unless obese patients lost a specified amount of weight first, and smokers quit smoking for at least eight weeks. The idea is that this would decrease hospital stays, have better outcomes, and save money for the National Health Service. Along with the requirement for pre-surgical changes was an offer of free counseling.

Many people disagreed, saying that it won’t work, may cause more suffering, and may even be more expensive because patients might need more care while they await their procures. Other reactions were based more on social attitudes. According to an article in the New York Times, a survey indicated that people “consider terms like obese, fat, and morbidly obese to be stigmatizing and blaming language used by doctors.” The procedure used in the English county seems to run counter to a recent trend to avoid “fat-shaming” or other negative attitudes about people who are different.

Permalink to this entry

Can A Healthcare Provider Be Clearly Negligent And Still Avoid Liability?

Posted Friday, December 29, 2017 by Gene Moen

Under Washington law, in order to prevail in a medical negligence case, you must prove two things: a breach of the duty of care and that injury was caused by the breach. If you cannot prove causation, you cannot prevail, no matter how serious the potential injury or damages.

Every medical negligence attorney has reviewed cases where the negligence was clear but where it is impossible to prove that any harm was caused. Examples are a missed cancer diagnosis, but where the delay before the diagnosis occurred is only a few weeks, so that injury from the delay (as opposed to the underlying cancer) cannot be proven. In general, the law requires that any purported harm must be proven with reasonable medical probability. That has been interpreted as requiring proof of likelihood of harm being greater than 50%.

Recent case law in Washington has tried to ease this burden by allowing a lawsuit for “loss of a chance of a better outcome.” In other words, even if you can’t prove that the bad outcome was more likely than not (greater than 50%) the fault of the medical provider, you can prove that a better outcome was 25% more likely (for example) if the duty of care had not been breached.

This is an improvement over the “all or nothing” requirement of more likely than not (greater than 50%), but it leaves a large gap that can be difficult to fill. In order to have a claim for “loss of a chance of a better outcome,” one must be able to produce an expert who can provide the necessary testimony about the percentage loss of a chance. In many cases, especially those involving a negligent delay in diagnosis of a pre-existing medical condition, those figures are impossible to present because the needed evidence is not present due to the provider’s negligence.

Examples are easy to find. An ER physician misses a diagnosis of an epidural spinal abscess, leading to the patient’s later paralysis. The missed diagnosis, in turn, resulted from a failure to do a spinal MRI which likely would have found signs of the infection. But without evidence of the size or location of the abscess that would have been found in the MRI, a neurologist or neurosurgeon may not be able to state, with reasonable medical probability, that the patient lost “x percent” of a chance of avoiding paralysis. In other words, the physician, by negligently failing to do an MRI, avoided the evidence that may have made him liable for a serious injury.

Another example: a patient presents to her doctor with signs and symptoms of acute glaucoma, but the doctor fails to do a simple pressure test to diagnose the condition. A day later, the glaucoma is diagnosed and the patient has permanent vision loss. An expert is unable to provide testimony about the “loss of a chance of a better outcome” because that could only be based on comparing the pressure on the day it was missed with the pressure at the time of diagnosis. The doctor is clearly negligent, but because of his negligence the element of causation cannot be proven.

Plaintiffs’ attorneys are working to come up with a different way of approaching this problem. In some states. liability can be found if the negligence was a “substantial factor” in producing the harm. It is clearly unjust that a doctor can be negligent, but the causation burden cannot be met because of the negligence. Hopefully, case law will be developed over the coming years that allows this injustice to be avoided.

Permalink to this entry

Chemnick | Moen | Greenstreet
115 NE 100th St #220, Seattle, WA 98125 US
Phone: 206-443-8600
Fax: 206-443-6904