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The CMG Voice

Gene Moen and Paul Chemnick Named to 2013 Super Lawyers

Posted Tuesday, July 16, 2013 by Chemnick | Moen | Greenstreet

Gene Moen and Paul Chemnick were once again named to the 2013 Super Lawyers list as among the top attorneys in Washington State. No more than 5 percent of the state’s attorneys are selected by Super Lawyers. Both were named in the “Personal Injury Plaintiff: Medical Malpractice” category. Super Lawyers rates outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The annual selection process includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. Gene and Paul have been named to Washington Super Lawyers for over 10 years.

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Use of Experts In Medical Malpractice Cases

Posted Wednesday, May 29, 2013 by Gene Moen

One thing that is constant in medical malpractice cases of all kinds is the need for expert testimony. Experts are required by the court rules when there is an issue that ordinary jurors do not have the experience or knowledge to judge.

Most medical malpractice cases involve a determination by the jury as to whether the “standard of care” was violated, and the standard is what a reasonable and prudent health care provider would do in the same or similar circumstances. This almost always requires testimony by a medical expert as to what is reasonable and prudent under the circumstances of the case.

Most often an expert testifying about the standard of care in a case must be from the same specialty as the defendant. In fact, in some states that is required. In Washington, however, there are a few instances in which a doctor from a different specialty can testify about the standard of care of the defendant health care provider.

Examples are when different specialists perform the same procedure, such as podiatrists and M.D. foot surgeons, or orthopedics and neurosurgeons who both perform spine surgeries. A Washington case also allows a doctor to testify about the nursing standard of care if he/she works with nurses in a particular field and is knowledgeable about the nursing standards.

In addition, almost all medical malpractice cases involve issues of causation: was the injury or death caused by the negligent medical care? This is also an area where expert medical testimony is almost always required, since jurors do not have the background to make that decision on their own.

There are a few exceptions to the requirement for expert testimony: usually these involve medical care that is so clearly outside the ordinary that a lay jury can decide without expert help. Examples are surgery on the wrong limb or wrong site of the body, or objects that are inadvertently left in the body after surgery. But even in those cases, the causation link between the event and the harm will usually require expert medical testimony.

Finding an expert can be a challenge for a lawyer representing an injured patient. Generally speaking, it can be difficult because many doctors do not want to testify against another doctor. And for many specialties, such as neurovascular surgeons who do brain surgery, the number of potential experts is not large, and most of them know the defendant doctor or his colleagues through meetings or conferences.

The pool of potential experts is therefore small, so finding and retaining a qualified expert takes time and money. There are many “services” that provide expert referrals, ranging from national firms who sign up doctors for their expert group to nurses who specialize in finding experts.

Many firms, such as ours, rarely will use services such as these, in part because of concern that the expert’s work with an expert service will come out at trial and influence a jury’s perception of the expert as a “hired gun.” Similarly, some experts advertise in legal publications and this raises the same concern for lawyers who might use them.

In most cases, our firm uses our existing contacts in the medical field to locate experts. For example, if we have worked with a pharmacologist at a medical school, we might ask her/him to suggest colleagues in a different specialty at that medical school.

We also rely on suggestions by other lawyers whom we know personally or with whom we exchange e-mails on one of the “listserves” used by attorneys. Occasionally, we will search the medical literature for articles that are specific to our medical issues, and contact the authors to see if they would be willing to serve as a consultant or expert in a case.

Not only is finding an expert sometimes challenging, it can be quite expensive to hire one. This can be particularly true finding a doctor in a specialty field, such as neurosurgery, who is willing to testify in a case against another neurosurgeon. The charges can be quite high: it is not uncommon for specialty experts to charge as much as $600-1,000 an hour or more to review records and discuss the case with an attorney.

In most cases, the strength of a plaintiff’s case depends on the “quality” of the expert, both in terms of experience and knowledge and ability to explain complex medical issues. Without an articulate and personable expert, a jury often won’t understand or accept the opinions being offered.

But when both sides have good experts, which is often the case, research has indicated that juries tend to “tune out” the experts and view both sides’ experts simply as hired consultants. As one juror told me: “obviously the expert will support the lawyer’s case or he wouldn’t have hired him.” Juries often rely on their own experiences, knowledge, and common sense in filtering the experts’ opinions and reaching a decision. But as all medical malpractice attorneys know, you don’t even get to the point where the jury will consider your side of the case unless you have qualified and articulate experts presenting the medicine to the jury.

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Nerve Injuries From Surgical Positioning

Posted Friday, May 24, 2013 by Gene Moen

When a patient undergoes a surgical procedure, an unexpected outcome can be a nerve or skin injury caused by improper positioning. The surgical team is responsible for ensuring that the patient is positioned in such a way that there is not excessive pressure on any particular part of the body and a nerve is not stretched to the point of injury. There are cushions and other devices that are often used to avoid pressure on muscles, nerves, and bony parts of the body that can result in skin breakdown (decubitus ulcer or pressure sore).

Some positioning carries special risks to key nerves. The lithotomy position, often used in urological surgeries, requires the use of leg holders. Peroneal nerve injury, which can cause a foot drop or lower leg numbness, can result from prolonged stretching of that nerve. The surgical team must ensure that the patient is in the lithotomy position for the shortest amount of time possible. Other surgical positions have special risks for different nerves.

A dreaded complication is blindness caused by direct pressure on the optic nerve or on vessels carrying blood to that nerve. Such injuries can occur during lengthy spine surgeries. The proper padding and positioning of the head and face can avoid such an injury. As surprising as it may sound, nerve injuries have also occurred when a member of the surgery team leans on a portion of the body to perform a surgical task. Nerve injuries have also occurred from the use of retractors or other instruments that assist in exposing a surgical site.

It is often difficult to determine exactly how a positioning injury occurred or which members of the surgical team were responsible for it. An attorney representing an injured patient in this situation may have to rely on the legal doctrine of res ipsa loquitur (“the thing speaks for itself”), that allows a claimant to shift the burden to the health care providers to explain how an injury occurred. The doctrine applies when the means by which an injury occurs are entirely within the control of the health care providers and the injury would not ordinarily occur in the absence of negligence. A medical expert is usually needed, however, to testify to those matters.

Unfortunately, in surgical positioning injury cases it is usually necessary to name all of the members of the surgical team who had some responsibility for positioning the patient: the surgeon, assistant surgeon, anesthesiologist, and circulating nurse. Since each of them may have different employer and liability insurance, such cases can become very complicated and expensive to pursue.

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Medical Malpractice Litigation Makes Patients Safer

Posted Thursday, May 23, 2013 by Tyler Goldberg-Hoss

Many, particularly those in the health industry, believe a major barrier to the openness and transparency necessary to reduce medical errors is malpractice litigation. However, it seems the opposite is true: malpractice claims are seemingly improving hospital transparency and reducing medical errors.

So says Joanna C. Schwarz at the NY Times. She concludes, after surveying more than 400 hospital risk management, claims management and quality improvement personnel throughout the country, that limiting this litigation may “actually impede patient safety efforts.”

Read the full article here:

Learning from Litigation

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Operative and Post-Operative Infections

Posted Monday, May 20, 2013 by Gene Moen

It is not uncommon for a patient who undergoes surgery or any invasive procedure to develop an infection. Although operating rooms are meant to provide a sterile field for a surgery, there are many ways in which a bacterial organism can invade the body through an opening.

A staph infection (staphylococcus aureus) is the most common, because this organism is present on everyone’s skin and no surgery prepping can completely eliminate it. In general, a staph infection that develops immediately after a surgery is not sufficient evidence of negligence on the part of the OR personnel or the hospital. Unless a specific negligent act or failure can be identified as the source of the infection, it is rare that a medical malpractice action is viable. This is also true for a MRSA infection, which can be much more serious and usually occurs in a hospital and not in the community.

In some cases, there may be several patients who suffer a similar infection during the same time period in the same OR, and this could indicate some breakdown in sterile procedures on the part of the hospital. Most often, however, the patient who develops an infection won’t know of other patients who had a similar infection. If that knowledge does exist, an investigation may find that there were problems with sterile procedures in that particular OR, or problems with the ventilation system.

A strep infection (group A streptococcal) may be different, since that organism usually comes from an infected person in the OR. If a patient develops a strep infection that appears to come from the OR, hospitals will usually investigate to determine if a carrier of that organism was present in the OR. Sometimes there will be a cluster of such infections and they can be traced to a surgeon or nurse who has the organism in his/her nasal cavity.

Fungal infections can also be different, because they are relatively rare (and can be quite serious because they are typically more difficult to treat). If it appears that an unusual fungal organism invaded an operative incision, it may come from the uncovered shoes of OR personnel who tracked in dirt with that particular fungus, or a faulty ventilation system that may be drawing in dust from, for example, a construction site at the hospital.

Most operative and post-operative infection cases are based not on the fact an infection occurred, but rather on a delay in diagnosing and treating the infection. A patient may call the surgeon to complain about a surgery site that is painful, swollen, or red, all of which are potential signs of an infection. If the doctor fails to see the patient promptly, or antibiotics are not prescribed, the infection may spread and cause a surgery to fail or result in other serious medical problems.

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