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The CMG Voice

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.

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Cancer Patients Can Suffer From PTSD

Posted Thursday, December 21, 2017 by Gene Moen

A recent article in Cancer reported that more than 20% of patients with cancer also had symptoms of PTSD (post-traumatic stress disorder) a month after diagnosis, and that symptoms often persisted for years. It was also found that, even if PTSD was not present (as defined in the DSM-IV), many cancer survivors had a persistent fear of disease recurrence, which had a psychological impact on their lives.

Many patients who had sub-clinical signs of PTSD developed full-scale PTSD at a four-year follow up. Apart from the separate health impact of these psychological factors, many of the symptoms of PTSD, such as avoidance and cognitive difficulties, interfered with adherence to treatment of the cancers.

The underlying study reported in Cancer involved 469 patients with cancer diagnoses in the prior month. A PTSD diagnosis was made when a patient met criteria specified by the manual for psychiatric disorders (DSM-IV): traumatic exposure (cancer diagnosis), and response associated with at least one recurring symptom, three avoidance/numbing symptoms, and two arousal symptoms, all persisting for more than a month and resulting in significant distress or functional impairment.

One interesting conclusion was that patients with breast cancer were significantly less likely to develop PTSD. The reasons were not clear, but it may be a factor of the number of women with that diagnosis and the fact most patients had a family member or knew someone who also had breast cancer. Although the breast cancer diagnosis was traumatic, it seemed less so if he patient knew others with the same diagnosis.

The study had limitations, including the fact the patient population was from one academic medical center, and involved a relatively small number of patients, but it may lead to further research that will allow for earlier recognition and treatment of this less-known outcome of a cancer diagnosis.

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Can Washington Juries Award Punitive Damages?

Posted Monday, December 18, 2017 by Gene Moen

Sometimes potential clients tell me they want to file a lawsuit in order to punish a health care provider. I usually explain to them that, under Washington law, we do not have what are called “punitive damages,” which means that juries can only award “compensatory damages.” Washington is one of only six states that do not allow punitive damage awards.

With compensatory damages, no matter how bad or egregious the medical negligence, theoretically it doesn’t change the nature and amount of the damages that can be awarded. I use the word “theoretically” because, to some extent, the nature and severity of the negligent care can impact a jury’s calculation of the damages caused by that conduct.

Compensatory damages are intended solely to compensate the claimant. Included are both economic and non-economic damages (the old terms were “special” and “general” damages). Economic damages can include medical expenses, lost wages or lost earning capacity, and other similar measurable economic impact on the claimant. Non-Economic damages can include pain and suffering, emotional distress, and non-economic impact on the life of the claimant. Again, those damages are to be awarded if such damages were the result of the negligence, regardless of how serious the negligence might be.

In a few situations, however, the laws of another state may be applicable to a claim, such as when the harm is caused by a multi-state medical entity and the laws of the state where that entity is located provide for punitive damages. The Washington court may then apply that state’s specific punitive damages law to the claim being presented in Washington. Each state’s punitive damage laws are different, but in each case the claimant must prove that the conduct in question was willful and had the potential to cause substantial harm. Some states allow unlimited awards, but they are intended to reflect both the severity of the conduct and the amount of harm that might be caused. In addition, in most cases they are intended to both punish bad behavior but also to encourage a change in that behavior.

In states that allow punitive damages, they are rarely awarded in medical malpractice cases. In a famous non-medical case involving a spill of McDonald’s coffee, the jury awarded punitive damages measured by one day’s profits of McDonald’s coffee sales. This is because the jury heard testimony about the company deliberately selling coffee at an extremely unsafe temperature, and discussing how any injuries are more than made up for by increased coffee sales when patrons know they can take it home with them and it will still be hot when it is consumed.

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Your burn will heal faster if it happened during the day

Posted Friday, December 15, 2017 by Tyler Goldberg-Hoss

I recently wrote on the subject of circadian rhythms and cardiac surgery. Now new literature has come out on whether and to what extent circadian rhythms on a cellular level affect the body’s ability to heal from a burn.

The research, published in Science Translational Medicine, found that cells have circadian rhythms, and the time of day affects how the cells heal.

The researchers started with skin wounds in mice, noting that during the circadian rest period (nighttime) the cells healed less quickly than during the day. They then turned their attention at a database of human burn injuries. They found corroboration: daytime wounds healed about 60% faster than nighttime wounds.

What this means for the future of burn treatments is unclear from this research. However, better understanding how circadian rhythms affect the process should allow researchers to develop new treatments.

You can read an abstract from the research here:

Circadian actin dynamics drive rhythmic fibroblast mobilization during wound healing

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New study finds head and face pains are worse than pains from other parts of the body

Posted Monday, December 11, 2017 by Tyler Goldberg-Hoss

For some time now, researchers have known that people tend to feel more and stronger pain in their faces than in other types of the body. One theory is that the sensory neurons that carry pain signals to the brain from the head may be more sensitive than pain signals from other parts of the body. However, that does not entirely explain a tendency for people to experience greater fear and emotional suffering from face pain than other parts of the body.

A recent study sheds some light on this, finding that the sensory neurons coming from the face are wired directly into one of the brain’s main emotional signaling hubs, while sensory neurons from other parts of the body are only indirectly connected to this hub.

As people suffering from chronic painful conditions such as migraines and trigeminal neuralgia, this research holds the promise of more effective treatments for what is often debilitating suffering.

You can read an article on this research here:

Why Head and Face Pain Causes More Suffering

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