Medical Malpractice “Never” Events Like Sepsis and Repeat Surgery

 Posted on March 02, 2022 in Ask Andy Podcast

This episode addresses my views as a medical malpractice attorney dealing with “never” events.

Transcript

[00:00:07] Good morning, you’re welcome to Ask Andy. This is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can reach me at Neuwirthlaw.com. So I wanted to once again talk to you for this week about medical malpractice. The numbers about the existence of medical malpractice as a cause of death of Americans are frankly astonishing. The most recent figures I’ve seen is that medical errors are the cause, the third leading cause of death of Americans behind like smoking and heart disease. All right. So we’re a big, fat country and we smoke too much sometimes. But at Med Mal, you know, we’re supposed to be the leading light, the best place to get health care in the world and we are killing our own people with errors. Now I say this take this with some sort of a grain of salt. My wife is a physician. I believe that most physicians are good at what they do and caring and all that stuff they are, you know, among the last sort of respected members of society. So however, there’s just a lot. It just seems like there’s a lot of bad out there and there’s, you know, explanations for it. Sometimes they’re just bad providers who commit malpractice over and over again. That’s been demonstrated in a bunch of studies in the Northeast. Sometimes transitions from one specialist to another, like if you go from the E.R. to the floors or you’re discharged and then you come back. Some of those transitions are problematic, and there’s a lot of nursing home neglect that, in my view, you know, is the result, you know, not of a physician doing something wrong, but rather, you know, a hedge fund or some other large corporation trying to make money off of your mom or dad. [00:02:15] And if you try and make money, what’s the first thing you need to do? You need to cut employees. And if you cut employees, if you can’t cut any more employees, what do you need to do? You cut the amount they’re being paid. So then what’s the nursing home doing? They’re finding the cheapest people they can pay and have the fewest of them and overwork them to the point where, you know, it’s not surprising when someone gets crappy care, someone gets dropped and breaks a hip or breaks a knee and or someone dies from dehydration or other diseases that you know are thoroughly preventable. So, you know, there’s a fair amount of nursing home negligence that probably bumps up the deaths from medical malpractice numbers now. I think it’s kind of disturbing to hear that it might make you afraid of going for health care in America, but I don’t think that’s a reasonable conclusion. I just think that there’s, you know, needs to be a consciousness among people that you’ve got to be diligent about, you know, your loved one’s health care. If they’re getting treated, you know, you don’t want to be a pain in the ass, maybe. But at the same time, like you’ve got to be aware of what’s going on and what your medical history is. [00:03:39] And, you know, be responsible. If a doctor tells you to go to physical therapy, you’ve got to go. If the doctor tells you to stop taking your blood thinner, you’ve got to do that, you know, with that being said. You know, my wife treats a lot of very sick people who are diagnosed with cancer or, you know, being treated for cancer. And there are a lot of people who, you know, modern medicine just can’t, just can’t save. And that’s not a failing of medicine. That’s not malpractice. It’s just, you know, everyone’s going to die of something. And there are just a lot of diseases that we don’t really have a good handle on. We’ve made a lot of developments, you know, in treating cancer particularly. But you know, right now we’re in the middle of sort of multiple flu epidemics and coronavirus. This and you know, is there stuff to worry about? Yes. Are you going to get good care at most hospitals and most Doctors’ offices? Absolutely. But you know what is? What’s there to do? There are certain things that should never happen. So one of them is, you know, for the most part, you should not bounce back in the lingo. You should not have to return to an ER after you’ve been discharged for the same condition. So let’s say you go to the ER, you’ve got terrible back pain. They discharge you saying you’ve got terrible back pain. Go see your doctor. And then all of a sudden, you know you’ve got numbness in your feet or you can’t go to the bathroom. [00:05:10] Now, would that be significant to you? Might or might not. It should be. But whether it’s significant to your non doctor or your non-lawyer, I don’t know. But that’s certainly a sign that you better get your ass back to the doctor, to the ER right away. Forget about the doctor. That’s one of these. Don’t stop go things because it means that you’ve got pressure on your spine that is affecting your nerves and may be leading to paralysis. So that’s one of those things like if you’re discharged from the ER and you have to go back within, let’s say, 24 hours, it means the ER screwed up. Now maybe they can fix everything and you’ll walk out the door and be fine and happy. But if not, it’s a red flag. It’s a sign that something’s wrong. What other ones? Well, air embolism. What’s an air embolism? It means if you’re getting dialysis or your sister’s getting dialysis or your mom is getting dialysis and the machine pumps air into your body, your body’s blood stream is not supposed to have air in it. It acts like a clot. It causes strokes and death. All right. So if you have a death shortly after dialysis or at some point after dialysis, you’ve got to look at that. Medicare, who are the ultimate payers for people on dialysis, say this should never happen. What else is? You know, what else are never events? You know, Medicare says they’re never going to pay for IV infiltration. [00:06:38] That’s not going to be a medical malpractice case for the most part, except in one sort of semi unique circumstance. What’s an IV infiltrate? An I.V. infiltrate is when the hospital usually leaves your IV in too long. An IV is, you know, just a catheter. It’s like a, you know, tube into your blood vessel. It provides medication, it’s antibiotics or fluid. But if they don’t change them regularly, they get infected. So they’re supposed to rotate them from arm to arm, from leg to leg, et cetera. But you’re supposed to do it every six hours or eight hours. I don’t know the exact numbers, but if you don’t do it and they get infected, what happens? Well, you’ve got a line right into your vein at that point. So if you’ve got an IV infiltrate and you’re not the healthiest of bears, let’s say you’re 65 year old person with diabetes. You know, the hospital basically without you realizing it just caused you to have a blood borne infection. Now, blood borne infection is much more dangerous than your topical. Oh, I’ve got a scratch and it gets red, OK, scratch and red. You can fix that pretty quickly. Blood borne infection often is called bacteremia means you have bacteria in your bloodstream. It causes, you know, your white blood cell count to go through the roof and in older people or in compromised people, or sometimes even in younger people who’ve had surgery and aren’t moving a lot. What do you get? You get something called sepsis. [00:08:07] Sepsis is a serious blood borne infection that can cause death and often does. And modern medicine, you know, has spent a lot of time researching trying to figure out drugs to to treat sepsis. But once you got sepsis, you’re, you know, in a lot of you’re in a lot of trouble and you’re in serious medical condition. So that’s why we worry about small things like I.V. infiltrates that might not seem like a big deal, but Medicare has said this should never happen in the absence of negligence. So, all right, so you got I.V. infiltrates, you got air embolisms, you’ve got bouncing back to the E.R. Most surgeons will not take you back or not take a patient back to the operating room, you know, within 24 hours, much less within 30 days, because they get dinged on their hospital record. You know for that because it basically is an admission that they screwed up the surgery or something went wrong during the surgery. Does that mean you died as a result? No. But at the same time, you know, it’s it’s an indicia or indicator that something is wrong. So that’s enough on medical malpractice for today. Those are some examples of, you know, cases that might develop into an actual lawsuit. That being said, you know, once again, most doctors are good. Most doctors believe that they are doing the right thing, and most of them are doing great work. So that’s enough for today. I’m Ask Andy, I hold people accountable. Have a great weekend.

 

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Nursing Home Malpractice And Broken Hips

 Posted on March 02, 2022 in Ask Andy Podcast

This episode addresses cases involving nursing home patients breaking their hips in my view as a medical malpractice lawyer.

Transcript

[00:00:07] Good morning, and welcome to Ask Andy, a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can reach me at 215-2598-3687 or on the Web at Neuwirthlaw.com. These podcasts are archived on SoundCloud. So I wanted to talk to you today about nursing homes and nursing home staffing. So if you’re in my business and personal injury practice or in medical malpractice, it is well known that nursing homes are poorly staffed. There was a recent, you know, National Institute of Health study saying exactly what practitioners in the field know, which is that nursing homes are poorly staffed. This is not surprising to us. However, you know, the nursing homes are largely for profit institutions. A lot of them are owned by hedge funds. They try and run them in a lean fashion, meaning, you know, the fewest employees possible to draw out the most profit. And you know, if you’re a business person, you know that. Employees are the largest cost in any business. So what are you trying to do if you’re a nursing home operator to try and reduce the number of employee hours? How does that affect you as the consumer or you as the patient? Or more likely you as the parent or the child of a parent who’s got into a nursing home? It means there’s less care for you. It means there’s less supervision of your loved one. What’s the reason you put someone into the nursing home in the first place? It’s because they weren’t safe at home, usually whether they were physically unable to walk upstairs or they were declining cognitively or mentally. [00:02:07] And they, you know, couldn’t remember how to pay their bills or take their pills or, you know, so on and so forth. Any number of things that happen as we get older. So the parent, you know, the family couldn’t care for the parent anymore, and we want them to be cared for. And they were, you know, we found, you know, you worked hard to find a nursing home that you thought was good and safe and boom, you know, within six months, you realize that there is not enough care for your mom or that your mom’s not getting, you know, a full range of her services or this or that. Or maybe, you know, you’re very happy with the place. And, you know, mom or dad has one incident that devastates them, like they fall and they break a hip, or they have two falls and they break two hips. A lot of the nursing home cases we see are ones where, you know, people are unhappy with the care their parent has received. And that’s, you know, to a great extent, upsetting and unfortunate, but doesn’t make truly doesn’t make a case that’s worth pursuing in court. So a lot of people come to me and say, Well, can you just write a letter? You know, I don’t write letters in that situation. I will essentially decline the case or turn the client away because in my experience, I’ve never written a letter that got much in the way of any effect in a in a medical malpractice or nursing home negligence case. [00:03:40] They’re just there cases that are fought out and examined and and inspected with great care, and they’re usually high value cases. So we don’t mess around with ones where it’s a close call. And frankly, you know, I’m a spouse of a physician. I’ve dealt with a lot of physicians on both sides of of plaintiff and defense work. You know, physician judgment, nurse judgment is is something that is serious. Like, you know, patient care is not easy. It’s challenging. And most physicians can tell you there have been situations where, you know, they weren’t thrilled with their own care or they made tremendous saves and tremendous, you know, benefits for the patient. So we don’t mess around too much in cases where the judgment of someone is at issue. But in cases where there is a clear breakdown in what the nursing home is supposed to be doing, those are cases we pursue when there is a clear breakdown of policies, procedures or clear negligence. So, you know, what does that mean? For example, someone comes in they’re a fall risk because they have, you know, a bunch of medications and they’re a little demented. Does the nursing home do a bunch of things to make sure that they’re OK? Yeah, sure. Maybe they put a bed alarm. Maybe they put it this. Maybe they put a mattress on the floor. [00:05:08] Eventually, maybe that person has a fall. Ok, then they need extra precautions now. But when that second fall comes around, they break a hip at the second fall. You know, that’s the sort of thing that we’ll start getting. You know me interested or my ears perked up because, you know, the first fall is maybe a signal to the nursing home that something’s not right in how this person is being monitored. But the second fall that injures the patient or breaks their hip and causes further decline is really a problem because it’s going to set the person back physically. It takes rehab and rehab for demented people is very challenging, and ethically, the doctors don’t really like to, you know, force demented people through physical therapy. So, you know, usually it’s not the first one that that causes the lawsuit. It’s the second one that’s sort of on the fall aspect. But you can see that if there were more staff taking care of patients, it would be more expensive for the nursing home. But the patients might get better care. There might be a one to one, meaning someone supervising your family member at all time. Or there may just be more nurses. And if they see the person wandering down the hall when they’re not supposed to be wandering, they do something about it. I like to believe that, you know, 90 percent of the population are well-intentioned people. And, you know, I’d like to believe that similarly, 90 percent of the nursing home seniors or friends are all well-intentioned and. [00:06:46] trying to do their best, but there just aren’t enough of them to watch, you know, 40 people on a ward. So, you know, it’s not that the nurse or the R.N. or the CNA is doing a bad job, it’s just that they’re, you know, they can’t possibly do a good job given the limitations of how many there are versus how many patients there are. And this, you know, acuity of the patients, meaning how severely impaired or how severely sick they are in a nursing home situation, you know, can be pretty concerning. You know, if you have a lot of demented people, you need to be extra careful that they’re not wandering off or acting, you know, acting inappropriately. So, you know, that’s how most nursing home negligence cases come to me to be evaluated is that there’s some clear break from protocol. You know, Mom had two broken hips in the course of six months or someone was assaulted by an out-of-control resident or someone, you know, one of the nursing homes sometimes will pop up with having, you know, unfortunately, a oftentimes a male aide has been sexually abusing demented patients. There are a bunch of situations that are just clear negligence and never under any circumstances acceptable conduct. And frankly, like, you know, what I’m here for is to hold those places accountable when they can’t uphold even their own standards of care. So that’s enough for today on nursing homes and negligence. Again, this is Ask Andy and I hold people accountable.

 

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EVERYBODY LIES UNDER OATH IN MY WORLD

 Posted on February 22, 2022 in For Lawyers

What? Yes, sad but true. There are so many lies told in personal injury litigation that it is simply impossible to keep track of them all. The most common is: I was driving the speed limit.  This is followed closely by I had two hands on the wheel and was looking straight ahead. Third, I am an excellent driver. Fourth, I dropped something (insert gum, chicken nugget, water bottle etc.) and looked away for a split second.

None of these statements are ever true.  However, they are almost impossible to factually undermine with an expert or some other measuring device. Really, the best way to undermine them is to establish all of the other facts that would have been apparent had the deponent been doing what they say they were doing.

For example, where a driver switches lanes unexpectedly and crashes into a car in their blind spot causing it to drive into oncoming traffic, a deponent will often say the victim’s car was not there! Well, it must have been there, you just did not see it. Or, they will say that the victim’s car was speeding. Well, you cannot just the speed of another vehicle unless you can see it, so therefore you are guessing, lying, or saw it but refuse to admit it.  Or, more likely the car was in your blind spot and the crash is your fault, but you don’t want to admit that.

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CONFIDENTIALITY AGREEMENTS AT SETTLEMENT

 Posted on February 22, 2022 in For Lawyers

Confidentiality agreements are very popular with a lot of larger companies with a national footprint or multiple locations, facilities etc. So, what is a confidentiality agreement? Well, basically, in personal injury litigation, my area, a confidentiality agreement prevents the plaintiff from publicly proclaiming their settlement with x company and prevents them from disparaging the company or reporting it in social media. Generally, I do not think that these agreements are directed at the individual plaintiffs because it is rare that a plaintiff has any sort of broad reach.

The true target of these clauses is me. Companies like Uber, Home Depot, and most insurance companies will require confidentiality agreements at the end of our cases, because they know that there will be future cases, just due to the nature of their businesses and the number of people they touch. However, they do not want to let me cry victory over the defendant corporation for x dollars for x injury on my social media or website or elsewhere.  Further, they do not want to establish a track record of paying for cases pre-suit or accepting that a slip and fall in their store is worth $100,000. So, the confidentiality clause is really a bulwark against building a profile of how the defendant will react and how much they will pay in a given injury lawsuit.

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DO YOU UPOD OR OPUD?

 Posted on February 22, 2022 in For Lawyers

Do you want happier clients and more referrals? You need to understand UPOD v. OPUD. What the heck am I talking about? UPOD is under promise and over deliver.  That is preferable and better. OPUD is over promise and under deliver.  This is problematic and upsetting to clients. So, which would characterize your average litigation interaction with clients?

I think that I am guilty of Overpromising and underdelivering at times because my practice is one where new clients come in and instantly want to get a feel for whether it is worth pursuing a case or not and hence what the typical value of their injuries is or could be.  From years of doing this, I can assign values to generic injuries like a broken arm etc. But, each case is different and some get stronger or weaker during litigation. It is always best to stay mum on potential recoveries if possible, but it is not easy.  This is especially true in pre-litigation negotiations.

Let’s say a client comes in with a serious car crash and a broken leg with surgery.  The insurance company may offer them $100,000 pre-suit.  The insurance company and I both know that the case is worth $250,000 if it goes into suit. But, if I tell the client the case is worth $250,000 and then the case falls apart during litigation, it will be hard to settle for $150,000 because the client is fixated on $250,000.

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Insurance: The Necessary Evil

 Posted on February 10, 2022 in Uncategorized

 

Auto-Insurance Best Practices:

1. please make sure that you are Full Tort
2. please make sure you have uninsured (UM) and underinsured (UIM) insurance coverage for yourself and your family.

I can drone on about why or what it is, but take my advice.  Regular old bodily injury insures if you hit someone else. Why would you protect your family less than you would protect the stranger you may hit? That does not make sense.  If you get hit by a young texting and driving kid, you probably don’t want to rely on the kid’s PA minimum coverage of $15,000.  So, ask your agent to fix that for you. Insurers don’t promote this coverage, though it is preferred by law, because it allows you to sue your own insurer and they don’t like that.  So, they keep it hushed up and confusing. Don’t be a sucker.

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Insurers are Fighting to Kill Stacking and The Household Vehicle Exclusion

 Posted on February 10, 2022 in Uncategorized

Insurance companies lend you umbrellas when the sun is shining, but want them back the minute it begins to rain.  This quote is sometimes attributed to Mark Twain regarding bankers, but in my view applies equally to my insurance company opponents.  Did your rates plummet when you were not driving during the pandemic?  No, they did not.  Why not?  Because it would hurt the insurers.

In 2019, the Pennsylvania Supreme Court undid an improper insurance exception to insurance laws and the insurance lobby has been seeking to change the law ever since because it would benefit you if you are hurt.  As the Pennsylvania Supreme Court has moved more to the center, multiple cases have made their way to the Court seeking to rectify situations where the insurer is trying to deny its policy holders’ coverage when they are injured.  The household vehicle exception and stacking waivers were ripe for review.  The insurance industry has been rightfully pummeled by the Court, like one of those MMA fighters who is still standing, but just completely bloodied.  Decisions on the household vehicle exception, stacking, and a host of other decisions have allowed policy holders to push back and get some justice.  Insurance companies have fought this every step of the way.

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Texting and Driving Has Replaced Drunk Driving As The Biggest Danger On The Roads

 Posted on February 03, 2022 in Uncategorized

Texting and Driving Has Replaced Drunk Driving As The Biggest Danger On The Roads:

Texting and driving or any form of distracted driving is very, very dangerous.  It cannot be reiterated or repeated too many times.  I see a lot of car crash cases and people uniformly deny texting and driving or being distracted.

In the past year, drivers in my cases have testified under oath that they were searching for gum that they had dropped on the floor of their car, searching for dropped chicken nuggets, or searching in the passenger’s wheel well for a closed bottle of water.  It goes unstated that there was no reason to retrieve the gum or nuggets.  What were you going to do? Eat them? Off the floor? Or, why were you reaching into the passenger wheel well while driving?  It is more likely that each of these people did not want to admit that they were texting or on snapchat etc. and caused the crash.

A fellow lawyer, Joel Feldman, conducts a class for high schoolers called end distracted driving.  You can watch it on you tube.  Sadly, Joel’s daughter was walking in broad daylight down the shore and was killed by a distracted driver, who was fiddling with his gps.  Joel will come to most area high schools for this presentation.  It is truly upsetting and a wake up call.

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Ask Andy: Do I Have A Case? How a Personal Injury Lawyer Decides Whether To Take A Case

 Posted on November 17, 2021 in Ask Andy Podcast