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The CMG Voice

Medical Negligence and the Need for Specialized Advocacy at Trial

Posted Monday, December 3, 2018 by Morgan Cartwright

Medical negligence law requires attorneys with the expertise of this area of the law in order to overcome the specific obstacles and challenges that these cases face if they go to trial. One of the most important words in the law of medical malpractice is the word “negligence”.

When you ask individuals to define the term, their definitions and understanding may be far different from the real legal applicable standard. This means that lawyers representing injured claimants have the challenging task of convincing members of society what negligence is in medicine.

Negligence is defined generally as the “failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.” There are two major obstacles that must be overcome with this definition and how it is preconceived in our society.

First, there is a major difference between medical negligence and general negligence. I’ve asked people to tell me what they think “negligence” means and they often refer to doing something consciously, knowingly, or intentionally.

For example, negligent driving is when someone is driving in a manner that’s dangerous. Oftentimes this is due to some conscious, intentional choice made by the driver. However, medical negligence does not mean intentional. This difference creates a very tough hurdle for medical malpractice claimants because it requires lawyers to change some juror’s preconceived notions that negligence equates to a willful or intentional act.

Second, medical negligence creates a special dilemma because the “reasonable person” is actually a “reasonable doctor”. When a lawyer faces a jury of twelve with no medical professionals, few will know what is required of a reasonable doctor.

Expert witnesses tell the jury about the “standard of care”, which is what a reasonable doctor in the same circumstances would do.

The defendant will present doctors who tell the jury that the defendant met or exceeded the standard of care, while the claimant will present doctors who tell the jury the defendant’s actions fell below the standard of care. This presents a difficult hurdle for the claimant’s attorney, since the claimant has the burden of proof. If he or she cannot convince the jury the plaintiff’s side is right, the plaintiff will lose.

Definition of Negligence

Definition of Medical Negligence in Washington State

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Probability, False-Positives, and What Your Lab Test Result Really Means

Posted Friday, November 30, 2018 by Tyler Goldberg-Hoss

Nearly everyone with experience as a patient in the health care system in the United States is familiar with the concept that doctors (and ARNPs and PAs) will order tests to help them understand what is going on with you and how you can be treated. These often include both lab tests (testing your urine, or your blood) and imaging studies (x-rays, CTs, MRIs).

On its face, this sounds like a good thing – a health care provider gathering data to support his or her decision-making. However, a recent article argues that often times those health care providers don’t correctly interpret the results of tests they order, sometimes leading to patient harm.

The problem involves probability, and the notion of false positives. A false positive test result is one in which the test says you have something you don’t. Given the current state of accuracy in our medical tests, false positives may be more common than you think.

However, it appears health care providers do not account for false positive results as much as they should. So, when a patient tests positive for a particular disease, often times they are treated for it even though they don’t have it. Sometimes this results in no or little harm, but sometimes it results in serious consequences.

Imagine a false-positive test result is acted upon, and surgery is indicated, or chemotherapy is initiated. Or the false-positive test result turns into more tests, including invasive ones, and injury occurs.

Although the author of the article notes there is no simple solution to this problem, one thought is to include on the lab results the percentage of false positives for a particular test, and the probability of a particular patient having the disease tested for.

So, for example, if you are testing for Disease X, and there is generally a 1 in 1000 chance of a person having it, that number could be included in the lab test results, next to the false positive rate for the test (say that is 5%, or 50 out of 1000). An algorithm could even better tailor the chances this particular patient has Disease X by weighing it for factors such as age or weight that may make the chances bigger or smaller.

Even further, simple math with those numbers can show the true chance of having Disease X:

if 1 out of 1000 people have it, that means 50 of the rest (999) don’t have it but test positive for it anyway. That means, of the 1000 people, 51 test positive for it but only 1 person really has it. That means the chances the patient actually has the disease when the test comes back positive is really only 2%.

Instead of a health care provider getting the positive test result back and presuming the patient has Disease X, he or she can then appropriately consider the false positive rate. This would likely lead to less unnecessary testing and treatment, and less patient harm.

Read more here:

What the tests don’t show: Doctors are surprisingly bad at reading lab results. It’s putting us all at risk.

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Doctors Improperly Prescribing Opioids Leads to Deaths

Posted Tuesday, November 20, 2018 by Morgan Cartwright

The opioid epidemic that has emerged in many areas throughout our nation often brings grief and sorrow. Many of the opioids are legally prescribed by doctors. This means that doctors need to have the utmost care in understanding the patient’s needs and medical history. Unfortunately, there have been cases in the news in which doctors have failed their patients, resulting in over prescriptions and a lethal combination of prescribed medications.

In a recent case in California, nine doctors are facing legal accusations from the California state medical board. Many of the doctors are facing claims of overprescribing large amounts of opioids, which resulted in multiple overdoses. At least one of the doctors prescribed a combination of opiates despite the patient already being on methadone which resulted in the death of the patient. Most of the doctors also face issues regarding documentation errors, including failures to adequately examine the patients’ records. The California state medical board has deemed these violations an “extreme departure from the standard of care”.

These cases present incredibly important issues in the medical field, particularly the balance between the pain of the patient and the safety of the medications. Carelessness in balancing these can result in tragic consequences.

The Calif. Docs Accused of Overprescribing Opioids

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Meta-Analysis often a short cut to original work in medical literature

Posted Tuesday, October 30, 2018 by Morgan Cartwright

Often in medical negligence cases, jurors want to know where the “standard of care” comes from, or if an expert witness offers an opinion, is it consistent with what the medical literature says on the topic.

Medical literature, then, is important both in clinical practice (improving the care provided to patients in all 50 states) and in the medical-legal field (helping jurors understand key concepts at issue in cases).

Historically, literature in medical journals were based on medical research that was derived from large studies and trials that physicians conducted on a diverse patient population. However, in recent years, with the increase in massive data mining technology, the articles published in medical journals have started to change, in part. In many medical journals nowadays, you will often find a huge assortment of articles that have been created not by a person, but predominately by a computer program.

As Dr. Milton Packer explains, he has reviewed many journal articles that compile meta-analysis from other studies and get computer-generated results. He explains that in many instances, the authors of these meta-analysis articles do not do any of their own research, but have computers compare other articles and insert data from other articles to come to conclusions. However, these conclusions may not actually be warranted based on the computer-generated analysis.

Unfortunately, these articles are becoming more common. The biggest problem with such articles is that they lack the traditional level of accuracy. In some instances, doctors pay individuals to create and even write these articles. As a result, there are a large number of articles published each year that contain conclusions based on insufficient data, clinically incorrect premises, and trials that are not statistically significant.

We can only hope that providers can start to realize that this type of medical literature does not advance the field of medicine and can actually undermine the important original literature.

For more on this subject read here:

Do Medical Journals Publish Original Work Anymore?

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The Consent Form – Not A Waiver of Liability

Posted Monday, October 22, 2018 by Tyler Goldberg-Hoss

Invariably when handling a claim involving a surgical or other procedure error, folks listening to the claim want to know about the form the patient signed prior to the procedure. The form, which many of us know from signing ourselves, gives the doctor consent to perform the procedure, and alerts the patient to the possible risks to the surgery that the patient is undertaking.

In addition to the specific risks of the surgery in question, invariably there is a long list of other, more general ones. A recent example included “stroke, device failure, infection, nerve injury, blood clots, heart attack, allergic reactions, respiratory failure, kidney failure, bleeding, severe blood loss, and risks of blood transfusions.”

For some folks, once you sign the form and agree to let the surgeon perform the surgery, there’s no real recourse if something goes wrong. The question of whether the surgeon was negligent is less an issue, since the patient understood that bad things can happen. Unfortunately, a bad thing happened in this case. Tough luck. Leaving aside whether you can consent to malpractice (you can’t), the consent form is important enough to some folks to overcome a surgeon’s negligent actions.

But there are other times when the form doesn’t tell the whole story, such as when the patient has agreed to a surgery without a full, necessary understanding of what he or she is getting into. Because a surgeon must obtain a patient’s “Informed” consent, that includes more than just spelling out the risks.

In Washington, as in other jurisdictions, surgeons must not educate their patients on every possible risk that can occur, or every possible other treatment options. However, they must tell their patient about all “material facts” of the proposed surgeon, things that a reasonable patient would think is important.

And this can include not only things as risks, but also the possible alternatives to the proposed surgery, including other possible treatment options.

What if your condition can be treated by a procedure other than the one being proposed by the surgeon? What if it is similarly effective at treating your medical problem, and carries less risk? Would you want to know that before deciding on surgery?

Often times, surgeries are uneventful, no risks materialize, and outcomes are good. However there are some times when a surgery results in a very bad outcome. Looking back, the patient or her family questions whether surgery was such a good idea in the first place. In these circumstances, it may be that the consent process was inadequate, and a reasonable patient sitting in front of the surgeon would have made a different choice had she had all the necessary information.

The informed consent process, then, is not simply a form to put in front of a patient right before surgery. It is a process, including giving the patient all the necessary information to agree on the surgery. This is consistent with the doctrine of patient sovereignty: all patients of sound mind get to decide what is done to his or her own body.

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