Reducing Medical Mistakes

We have previously noted the on this site that there are an alarming number of deaths each year due to errors in a hospital setting.  It seems that each month another article comes out that reevaluates the evidence and concludes an evening higher number than the last.  Regardless of the source, though, the number is alarmingly high. 

If everyone can agree that the number of individuals being harmed at the hands of healthcare negligence is too high, then next questions asked must be “why?” and “how do we stop it?”  The Wall Street Journal recently published an article attempting to address both of these questions.    

Based upon the percent of total amount of medical negligence payouts (a debatable metric, but sufficient for the purposes of the article), the WSJ concludes that diagnostic problems constitute the most serious source of medical negligence.  As an attorney who spends a great deal of time reviewing potential medical negligence, I would agree that a significant amount of the cases that come across my desk are failures to diagnoses, of which many of the failures have lead to devastating harm.  Even more than the number of claims and the types of harm, though, failure to diagnose claims are troublesome because so often they go to the core of what we as patients expect from our healthcare providers.  Most often patients visit a doctor’s office (or hospital) to either make sure there is no diagnosable malady (routine checkup) or find out what is causing a concerning sign or symptom.  Society can accept that there may be problems for which science hasn't found a cure, but we expect if a diagnosis is available, it be made appropriately.  

There are many factors that can contribute to failing to properly diagnose a patient, and thus there is no one solution to the problem.  We have previously written on efforts to establish systems of care akin to what has become the standard in the aviation industry.  The WSJ discusses several additional potential solutions including the mining of information in electronic medical records, changing the way physicians approach diagnostic decision making, and the use of electronic diagnostic systems.  Additionally, the article suggests several ways in which patients can help avoid reduce these errors, too.

There is enough uncertainty in medicine—sometimes described as more of an art than a science—that sprinkling in avoidable errors by healthcare providers is a recipe for chaos.   It is virtually universal that the earlier a disease is diagnosed, the better the chance a patient has for a positive outcome.  While the number of individuals harmed by medical negligence remains disturbingly high, it is important to know that there are real attempts to being made to try and reduce the frequency—and resulting harm—of such errors.    

-Ryan

Help Prevent Resident-to-Resident Abuse

There have been a lot of stories in the news about bullying, harassment and other abusive behavior directed from one individual to another—most recently in the Miami Dolphin’s locker room.  Such conduct is, of course, not isolated to schools or locker rooms.  One place it is not often thought of, though, is in nursing homes.  However, resident-to-resident abuse does occur and it is something that residents and their families should be aware of and for which nursing homes have a duty to try and prevent.    

The first thing someone will think of when the issue of “nursing home abuse” is raised is a staff member mistreating a resident.  In fact, we have written a number of posts on this blog discussing various aspects of negligence and abuse in a nursing home setting arising from the acts of nursing home operators and often over-worked and under-trained staff.  However, it is important to point out that a very real yet often overlooked source of nursing home abuse stems from resident-to-resident abuse. 

Last year a study was published in the Journal of Elder Abuse and Neglect titled Resident-to-Resident Abuse in Nursing Homes as Reported by Nurse Aides.  The authors evaluated the phenomenon of resident to resident abuse in nursing homes and found “that both the scale and scope of resident-to-resident abuse is high in nursing homes” and that it was “common enough to be considered an issue of concern impacting the quality of life and safety of many residents.”

A family confronted with a situation of resident-to-resident abuse may think there is no recourse against the nursing home if the culprit of abuse is another resident as oppose to the nursing home staff.  We believe that the law dictates otherwise.  For instance, under Missouri law nursing homes or long term facilities must “ensure” that each resident admitted to its facility “[i]s free from form mental and physical abuse . . . .”  R.S.Mo. 198.088(6)(g).  The law does not distinguish whether the abuse comes from nursing home staff, another resident, or even a complete stranger.   

Your loved one has a right to live in a nursing home free from abuse from staff and from his or her fellow residents.  If there are issues with resident-to-resident abuse we would encourage you to bring these issues to the nursing home's attention immediately and ensure that they correct the situation.

-Tom and Ryan  

Viability Is No Longer a Defense to A Wrongful Death Claim In Kansas

The Kansas legislature has recently enacted a number of widely publicized and highly controversial abortion laws.  This post does not intend to get into the appropriateness of such laws or whether the laws will be able to withstand what are likely to be a number of Constitutional challenges.  Instead, there is a small part of the new laws that directly impacts a certain type of personal injury lawsuit that we would like to shed a little light on.  Specially, how the recent abortion legislation has expanded the application of the wrongful death statute to allow wrongful death claims to be brought by the decedents of a nonviable fetus.

The issue of whether an unborn, nonviable fetus is a "person" within the meaning of the Kansas wrongful death statute (K.S.A. 60-1901, et seq.) has been previously addressed.  In 1990, the Kansas Supreme Court answered this question in Humes v. Clinton where it found that “an unborn, nonviable fetus is not a ‘person’ within the definition of the wrongful death act” and therefore the parents of a negligently injured nonviable fetus could not maintain a wrongful death action for their unborn child.  246 Kan. 590, 596 (1990).   The Court reasoned that

viability is not an illogical condition precedent when a negligently injured fetus is stillborn. A nonviable fetus is not capable of living outside its mother's womb; it cannot maintain a separate and distinct existence. Thus, a nonviable fetus which dies before birth has never become an independent living person. Toth v. Goree, 65 Mich. App. at 300, (citing O'Neill v.Morse, 385 Mich. 130, 188 N.W.2d 785[1971]). In Hale v. Manion, 189 Kan. 143, this court ruled that an unborn, viable fetus was a "person" within the meaning of the wrongful death statute because it was capable of an independent existence and regarded as a separate entity. 189 Kan. at 145.

Thus, according to the Court in Humes, “viability [is] an appropriate condition precedent to liability for wrongful death under K.S.A. 60-1901.”  Id.

This past year the Kansas legislature passed into law Senate Bill No. 142 and House Bill No. 2253. While both make a number of changes to the types of claims that can be brought related to to abortion and would suggest that Humes should be overturned—e.g., SB 142 bans “wrongful life” claims in certain situations and HB 2253 defines life as beginning at fertilization—it is SB 142 that directly addressed the previously holding in Humes and altered the application of the wrongful death statute.  SB 142 specifically amends the wrongful death statute as follows:

(b)       As used in the article 19 of chapter 60 of the Kansas Statues Annotated, and amendments thereto, the term “person” includes an unborn child.

(c)       As used in this section, the term “unborn child” means a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth

As such, the death of a nonviable fetus is now considered "the death of a person" under K.S.A. 60-1901 and the heirs of the nonviable fetus may now bring a wrongful death action in Kansas.    

-Tom and Ryan

"Never Events"--Medical Errors That Should Never Happen

Good health permitting, the vast majority of us want to avoid being a patient (or a family member of a patient) in a hospital.  At a minimum, it means being injured or sick and having to deal with the added expense, uncertainty, and overall disruption that comes along with being hospitalized.  Thus, even in the best-case scenario, hospitalizations represent an extremely vulnerable time for patients and their families.  Far too often the negative impact of hospitalization doesn't end with “best care scenarios,” especially when patients and their families must deal with the consequences of inexcusable medical errors known as “never events”—i.e., the kind of medical act or omission that should never happen in a modern hospital setting.

We have previously noted on this blog the alarming number of people that are estimated to die each year due to negligence while being cared for a hospital.  The estimate ranges from the as few as 98,000, to more recent estimates which suggest the number may be anywhere from 210,000 to 440,000.   One of the ways the health care industry has tried to address these startling numbers is through the identification and prevention of “never events.”

In 2002, the National Quality Forum (NQF) introduced the term “Never Event” to describe 27 particularly egregious medical errors (such as operating on the wrong patient or wrong body part) that should never happened.  Currently, there are 29 different events grouped into the following six categories:  Surgical Events, Product or Device Events; Patient Protection Events; Care Management Event; Environmental Events; Radiologic Events and Criminal Events.  For a complete listing of the NQF’s 29 never events click here.

While no act of medical negligence is ever acceptable and should in theory never occur, the NQF’s 29 “never events” represent some of the most egregious forms of medical malpractice.   Far too often, the health care industry has attempted to sweep under the rug the problem of medical negligence and its detrimental impact.  The public acknowledgement by the health care industry that these events should never happen is a positive step toward addressing the problem and impact of medical negligence, instead of simply trying to minimize the public perception of the problem.  

-Ryan and Tom

Elder Abuse Prevention

During one two year span, a study found that 1 in three nursing homes were cited for abuse of a resident.  As more and more individuals, particularly some of our society’s most vulnerable, become dependent on nursing home care—and there are more than 3.2 million Americans in nursing home facilities—the problem of abuse is only getting worse. 

While this is certainly a troubling trend, the good news is that the individual with the most power to curb the trend is you.  As I’ve written about previously written about, if you are concerned about a loved one suffering neglect or abuse, there are resources available including contacting reporting your concern to the facility administrator, hotlining the state, or contacting an attorney.  Certainly Tom and I are happy to try and counsel individuals through circumstances where they are worried their loved is suffering from neglect or abuse. 

The National Center on Elderly Abuse (NCEA) has a number of resources for help in recognizing abuse, preventing it, and stopping it.  If you suspect that someone is suffering from abuse at a nursing home please take steps to ensure that individuals are notified that can intervene and stop the abuse.

-Ryan

Your Right To Nursing Home Records

A significant portion of my professional life is spent obtaining and reviewing medical records—including nursing home records.  Obtaining medical records, whether they be from a hospital, doctor’s office, or nursing home can be a trying, confusing, and expensive exercise.  In future posts we will exam some of the intricacies of obtaining medical records from hospitals and doctor’s offices, but here I want to share a law that is underutilized despite helping to ease some of the headaches associated with obtaining nursing home records. 

As I have previously written about, there are federal laws applicable to nursing homes that accept federal funds as a part of their operation (e.g., Medicare).  One of these laws is 42 CRF 483.10, which is a provision outlining specific Resident Rights.  I would encourage anyone going into a nursing home or with a loved one in a nursing home to review this part of the law so that you know what rights exist.  In the future, we will examine several of the rights contained in this provision, but for the purpose of this post I want to focus on a resident’s right to access his or her medical records. 

The relevant portion reads as follows:

(1) The facility must inform the resident both orally and in writing in a language that the resident understands of his or her rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. The facility must also provide the resident with the notice (if any) of the State developed under section 1919(e)(6) of the Act. Such notification must be made prior to or upon admission and during the resident’s stay. Receipt of such information, and any amendments to it, must be acknowledged in writing;

(2) The resident or his or her legal representative has the right—(i) Upon an oral or written request, to access all records pertaining to himself or herself including current clinical records within 24 hours (excluding weekends and holidays); and (ii) After receipt of his or her records for inspection, to purchase at a cost not to exceed the community standard photocopies of the records or any portions of them upon request and 2 working days advance notice to the facility.

(3) The resident has the right to be fully informed in language that he or she can understand of his or her total health status, including but not limited to, his or her medical condition

42 CFR 483.10(b)(1)-(3).  In other words, you have the right to review the nursing home’s medical records within 24 hours and have the nursing home explain to you in plain English what is contained therein.  Additionally, within 2 days you have the right to obtain copies of the records of interest (though there will be a cost associated with making those copies).  This can be a particularly effective method of obtaining nursing home records if you have an attorney.  An attorney experienced in nursing home litigation knows what records should be contained in a resident’s chart and by going to the nursing home to review the original can determine if there are types of records missing.  Alternatively, it is not uncommon for nursing homes to want to avoid having attorneys on the premises and will propose simply providing a copy of the records to the attorney in a timely manner—meaning days instead of weeks.

If you are concerned about the care you or a loved one is receiving at a nursing home make sure you know your rights.  Sometimes looking at the medical chart may be the only way to better understand what is going on.  The resident or a legal representative have the right to review the medical chart at the facility within 24 hours.  -Ryan

Missouri Nursing Home Care Scores An "F"

On August 8th, 2013, the advocacy group Families for Better Care published what it refers to as the “nations first-ever, state-by-state nursing home report card,” which can be found at nursinghomereportcards.com. Families for Better Care is a Florida based organization that states that it “is a non-profit citizen advocacy group dedicated to creating public awareness of the conditions in our nation’s nursing homes and other long-term care settings and developing effective solutions for improving quality of life and care.” In creating the Nursing Home Report Card, the group combed through a number of government documents and available data on nursing homes and assigned letter grades to each state and ranked the states from top to bottom. The group’s findings as they relate to Missouri are disturbing.


Missouri received an F from the group and was ranked 47th out of 51 (including the District of Columbia). In an August 8, 2013 press release, the group’s executive direct, Brian Lee is quoted as saying “Missouri represents what’s terribly wrong with nursing home care and oversight in America.” Mr. Lee goes on, in referencing Missouri’s dismal grade, to point out that “[i]nadquate staffing contributes to the enormity of nursing home neglect" and that “Governor Nixon and the Missouri Legislature must do a better job caring for elderly and disabled nursing home residents.” Missouri ranked near the very bottom in hours worked by nurses and nurse staffing above average.


The Report Card is an overall assessment of the state and does not identify any one nursing home. What the Report Card does, however, is underscores how much work Missouri has to do to improve the care its citizens are receiving in long term care facilities. Additionally, it reinforces how important it is to research the specific nursing home you or a loved one may be considering. In previous posts (here and here) we have suggested some available resources to consider when making this important decision. This Report Card serves as a reminder of how important that research can be. -Ryan