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Two Oregon Medical Malpractice Lawsuits Filed Against A Jail On The Same Day October 22nd, 2014

162017_132140396847214_292624_nOn October 13, 2014, two medical malpractice lawsuits were filed in federal court in Oregon on behalf of one inmate who died the day before he was to be released, allegedly due to medical malpractice that occurred in the jail, and the other filed on behalf of an inmate who lost a testicle that had swollen to the size of a baseball, allegedly due to medical malpractice.

The $5 million prisoner medical malpractice lawsuit filed on behalf of the 43-year-old inmate who died the day before his scheduled release from jail alleges that he was incarcerated for fourth-degree assault and possession of a controlled substance beginning on October 28, 2013, at which time he did not have any physical complaints. However, beginning on November 9, 2013, he began experiencing stomach pain. The prisoner was seen by the nurses at the jail on November 14, 2013, by which time he had vomited four times and had five episodes of diarrhea. Despite his symptoms and condition, he was returned back to his jail cell, with a prescription for Immodium, which was never filled.

On November 18, 2013, a deputy heard the man moaning and gave him Milk of Magnesia. He told an EMT at the jail that he thought that he had blood in his urine. The inmate was unable to get out of bed and was unable to eat. Despite his symptoms and condition, he was not sent to the local hospital until November 21, 2013. Less than six hours after he arrived at the hospital, he was dead from bleeding ulcers.

The $1.05 million inmate medical malpractice lawsuit filed on behalf of the prisoner who had a prior history of testicular swelling alleges that the man was serving a 40-day sentence for second-degree criminal mischief during November 2013, when his testicle became swollen, resulting in much pain and causing him to walk with a limp. He was not allowed to have surgery to address his condition until eight days later, after which he was immediately returned to jail. He spent the next five days in a great deal of pain during which he claims he was denied pain medication and his testicle was infected. He was returned to the hospital where surgery was performed to remove his testicle that allegedly had swollen to the size of a baseball.

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While inmates and prisoners may not expect to receive medical care within the same timeframe as noncustodial individuals may expect under nonemergency circumstances, they are still entitled to proper medical care while in custody. The failure to provide timely and appropriate medical care to prisoners may result in claims of medical negligence and cruel and unusual punishment. Except in the most egregious cases, it may be difficult for an inmate or former prisoner to find an attorney to assist him in filing a claim for injuries suffered as a result of medical negligence while incarcerated.

Nonetheless, if you or a loved one suffered serious injuries (or worse) while incarcerated in the United States, you should promptly seek the legal advice of a local medical malpractice attorney in your state who may be willing to investigate your prison medical negligence claim for you and represent you in a inmate medical malpractice case, if appropriate.

Click here to visit our website or telephone us toll-free in the United States at 800-295-3959 to be connected with medical malpractice lawyers in your state who may handle prison medical malpractice claims.

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Arizona Agrees To Settle Prison Health Care Class-Action Lawsuit October 21st, 2014

162017_132140396847214_292624_nThe State of Arizona agreed to settle a pending class-action lawsuit filed against the Arizona Department of Corrections (“ADC”), pursuant to a stipulation of settlement filed on October 14, 2014 in the United States District Court for the District of Arizona, involving prisoners in the custody of the ADC.

The class of plaintiffs is all prisoners who are now, or will in the future be, subjected to the medical, mental health, and dental care policies and practices of the ADC. There is a subclass of all prisoners who are now, or will in the future be, subjected by the ADC to isolation, defined as confinement in a cell for 22 hours or more each day or confinement in the specified housing units.

Pursuant to the stipulation, which must be approved by the judge, the ADC has agreed to request that the Arizona Legislature approve a budget to allow ADC and its contracted health services vendor to modify the health services contract to increase staffing of medical and mental health positions. The ADC also agreed to comply with the health care performance measures set forth in the Stipulation.

The ADC has agreed to offer all prisoners an annual influenza vaccination; offer all prisoners with chronic diseases the required immunizations as established by the Centers for Disease Control; offer all prisoners ages 50 to 75 an annual colorectal cancer screening; offer all female prisoners age 50 and older a baseline mammogram screening at age 50, then every 24 months thereafter unless more frequent screening is clinically indicated; provide for a dentist to train dental assistants at ADC facilities about how to triage HNRs into routine or urgent care lines as appropriate and to train dentists to evaluate the accuracy and skill of dental assistants under their supervision; provide language interpretation for healthcare encounters by a qualified health care practitioner who is proficient in the prisoner’s language, or by a language line interpretation service; provide all reasonably available steps to prevent heat injury or illness for prisoners taking psychotropic medication who suffer a heat intolerance reaction (if all other steps have failed to abate the heat intolerance reaction, the prisoner will be transferred to a housing area where the cell temperature does not exceed 85 degrees); provide maximum custody prisoners housed at certain ADC complexes with no less than 6 hours per week of out-of-cell exercise (specified additional minimum out-of-cell exercise time is dependent on the prisoner’s classification); provide eligible maximum custody prisoners an additional ten hours of unstructured of out of cell time per week, an additional one hour of out-of-cell mental health programming per week, one hour of additional out of cell pyschoeducational programming per week, and one hour of additional out of cell programming per week; follow certain specified restrictions on the use of pepper spray and other chemical agents on maximum custody prisoners under specified conditions and at specified ADC complexes; and, provide all maximum custody prisoners with meals equivalent in caloric and nutritional content to the meals received by other ADC prisoners, et cetera.

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The federal lawsuit was filed in 2012, challenging years of inattention to the health needs of Arizona state prisoners and the improper and excessive use of solitary confinement that resulted in serious harm and unnecessary deaths. The federal judge certified the case as a class action in March 2013, which certification was affirmed by the U.S. Court of Appeals for the Ninth Circuit in June 2014.

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If you or a loved one were injured as a result of the lack of timely and/or proper medical or health care while incarcerated in a federal, state, or local prison, jail, or other correctional facility in the United States, you should promptly speak with a local prisoner rights/prison medical malpractice attorney in your state who may investigate your claim for you and represent you in a prison medical malpractice lawsuit, if appropriate.

Click here to visit our website or telephone us toll-free at 800-295-3959 to be connected with prisoner rights lawyers (prisoner medical malpractice lawyers) who may assist you.

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$1M Maryland Medical Malpractice Verdict For Misplaced Feeding Tube October 20th, 2014

162017_132140396847214_292624_nOn October 10, 2014, a Baltimore medical malpractice jury returned its verdict in favor of the plaintiffs in the amount of $958,000, which included $500,000 for pain and suffering, $250,000 for loss of consortium, and $208,000 for the amount of the plaintiffs’ stipulated medical bills.

The Maryland medical malpractice case took one week to be tried before the jury of three women and three men. The jury deliberated for more than two hours before returning its verdict.

Due to Maryland’s cap on noneconomic damages in medical malpractice cases in the amount of $710,000 that was in effect at the time of the alleged medical negligence, the total amount that the jury determined to be fair compensation to the plaintiffs for pain and suffering and for the loss of consortium claim will be reduced accordingly.

The Alleged Underlying Facts

The now 60-year-old married woman had been using a feeding tube in order to obtain her daily nourishment since 2008 (she was diagnosed with multiple sclerosis in 1978 and is presently nonverbal and paralyzed).

In May 2012, her feeding tube became dislodged and she went to a local Baltimore hospital to have it replaced. An endoscopy at that time confirmed the proper placement of her feeding tube. (Endoscopy is the gold-standard for confirming the proper placement of a feeding tube in patients.)

The woman experienced repeated episodes of her feeding tube becoming clogged or dislodged over the following four months, and each time she and her husband returned to the same local Baltimore hospital. On the last occasion on September 2, 2012, she waited for nearly six hours before the defendant gastroenterologist finally examined her.

The defendant doctor attempted to reattach the woman’s feeding tube but encountered significant resistance and used what he described as moderate force to advance the tube during three attempts, resulting in the woman grimacing in pain, according to her husband. Afterwards, the defendant gastroenterologist allegedly made no attempt to confirm the proper placement of the woman’s feeding tube, which had perforated her stomach. She was sent home from the hospital with her husband.

The following day, her husband called 911 after observing his wife having difficulty breathing and sweating following two feedings through her feeding tube. By the time she arrived at the hospital (a different hospital located in the county in which the plaintiffs’ lived), she was unresponsive. She spent the next six weeks in the hospital’s intensive care unit where her treatment included multiple surgeries. She was later transferred to a rehabilitation facility for one month before finally being able to return home.

Catherine McConville, et al. v. Muhammad Afzal, M.D., Circuit Court for Baltimore City, Case No. 24C13002774. Filed May 8, 2013.

If you or a loved one may have suffered serious injuries (or worse) as a result of medical negligence in Baltimore or elsewhere in Maryland, you should promptly find a Baltimore medical malpractice attorney (or find a Maryland medical malpractice attorney in your local area) who may investigate your Maryland medical malpractice claim for you and represent you in a Maryland medical malpractice case, if appropriate.

Click here to visit our website or telephone us on our toll-free line (800-295-3959) to be connected with Baltimore medical malpractice lawyers (or Maryland medical malpractice lawyers in your city or county) who may assist you.

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Pennsylvania Trial Court Finds Nursing Home Arbitration Agreement Unconscionable October 19th, 2014

162017_132140396847214_292624_nIn his October 3, 2014 written opinion, a Pennsylvania trial judge held that a nursing home’s arbitration agreement was unconscionable because the agreement was so one-sided, violated public policy, was misleading, was confusing, and that some of the provisions were overreaching.

The arbitration agreement not only waived the right for the resident to have a jury trial in the event there was a dispute between her and the nursing home, the agreement went even further, providing that the dispute would be resolved by a bench trial (no jury, just a judge) even if the arbitration agreement was found to be unenforceable.

The trial judge wrote, “Arbitration may be fine for monetary issues in business transactions, but injuries caused intentionally or negligently in tort should not be the subject of routine arbitration unless both parties fully and completely negotiated and agreed to the final terms. Unlike contracts where the issues are relatively clear and a breach can be easily identified, negligence issues are not so obvious.”

The resident’s daughter had signed the arbitration agreement on behalf of her mother, without her mother’s knowledge. The daughter was not authorized to sign the arbitration agreement on her mother’s behalf, the daughter did not read the entire agreement before she signed it, and the daughter did not understand the arbitration agreement that she signed.

The trial judge noted the great disparity in the bargaining positions of the nursing home and the resident’s daughter, and further noted that the daughter was unable to negotiate the terms of the arbitration agreement — she was required to accept the terms of the agreement as they were set forth (her mother had been admitted to the defendant nursing home the day before the daughter signed the arbitration agreement on behalf of her mother).

The Underlying Claim Against The Nursing Home

The mother had voluntarily entered the defendant nursing home in February 2011. Her health declined over time and she was later diagnosed with dementia.

In January 2013, a nurse at the defendant nursing home called the police after finding the woman lying in her bed, with a laceration above her eye and blood on her hands and her pillowcase. The resident was unable to explain what had happened to her. She was transported from the nursing home to a local hospital emergency room.

An investigation reportedly revealed that the resident had become combative when a nursing aide entered her room to change her brief. A second nursing aide allegedly observed the first nursing aide hold the resident down, hit her on her arm, and throw a can of shaving cream at the resident’s face, which struck the woman above her left eye. The first nursing aide was reported to have stated that it was an accident that the resident had been hit in her face, and she denied that she had hit the resident on her arm.

The daughter filed a nursing home negligence lawsuit as administrator of her mother’s estate (her mother died in August 2013). The defendant nursing home filed a motion to compel arbitration of the nursing home negligence claim, which was the subject of the trial judge’s October 3, 2014 order denying arbitration of the nursing home claim.

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If you or a loved one suffered injuries while a resident of a nursing home in Pennsylvania or in another U.S. state, you should promptly consult with a Pennsylvania nursing home claim attorney, or a nursing home claim attorney in your state, who may investigate your nursing home negligence, nursing home abuse, or nursing home neglect claim for you and represent you in a case against a nursing home, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find nursing home claim lawyers in Pennsylvania or in your state who may assist you.

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Was The FDA Too Slow To React To New Jersey Pharmaceutical Company Distributing Allegedly Contaminated Products? October 18th, 2014

162017_132140396847214_292624_nThe FDA announced that on October 2, 2014, a complaint was filed in the U.S. District Court for the District of New Jersey, seeking a permanent injunction to stop Pharmaceutical Innovations Inc., a New Jersey pharmaceutical that manufactures and distributes ultrasound, mammography, and electrocardiogram gels as well as scanning pads that are used for diagnostic purposes in health care settings, from manufacturing, marketing, selling, and distributing medical products until it comes into compliance with all applicable FDA requirements.

The FDA is responsible for protecting the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. That’s why the timing of the filing of the complaint that alleges that the New Jersey pharmaceutical company did not manufacture its devices in conformity with the current good manufacturing practice requirements of the Federal Food, Drug, and Cosmetic Act, and that it distributed its products nationwide without required premarket approval or clearance, is disturbing.

The FDA contends that it requested in April 2012 (two-and-a-half years ago) for U.S. marshals to seize certain lots of Other-Sonic Generic Ultrasound Transmission Gel from the New Jersey company, after FDA laboratories found significant amounts of Pseudomonas aeruginosa and Klebsiella oxytoca in those lots, which are bacteria that pose serious risks of infection, such as pneumonia, to people exposed to the product. The FDA was aware at that time of people who were infected with Pseudomonas aeruginosa after having undergone a surgical procedure at a Michigan hospital involving the company’s Other-Sonic Generic Ultrasound Transmission Gel. The FDA issued a safety alert to health care professionals and facilities to stop using the contaminated product, on April 18, 2012.

If the New Jersey pharmaceutical company’s products had allegedly caused serious injuries to people in Michigan in April 2012, and may have posed an ongoing threat to the health of people using its products, was the FDA too slow in seeking a permanent injunction against the company? Were more people harmed by the allegedly defective products before the FDA took appropriate action to protect people?

The FDA’s statement referencing the delay is discomforting: “Despite multiple warnings by the FDA over the past three years, and promises to correct the numerous ongoing violations, the defendants continued to violate the law. This presents serious health risks to patients who used and continue to use the company’s products. By taking this action, the FDA is demonstrating its commitment to protecting the public from the dangers of adulterated and misbranded medical products.”

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If you or a loved one may have suffered injuries or other harms as a result of a pharmaceutical product, you should promptly consult with a local pharmaceutical claim attorney in your state who may investigate your defective product claim for you and represent you in a case against a pharmaceutical company, if appropriate.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with defective product claim lawyers in your U.S. state who may assist you.

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Idaho Supreme Court Case Highlights Hurdles In The Path Of Justice For Medical Malpractice Victims October 17th, 2014

162017_132140396847214_292624_nA decision by the Supreme Court of the State of Idaho (“Idaho Supreme Court”) on September 19, 2014 is a prime example of the hurdles placed in the path of medical malpractice victims seeking to obtain fair compensation for their serious injuries due to alleged medical negligence. At issue was Idaho Code section 6-1013, which requires that a medical malpractice plaintiff establish the defendant’s failure to meet the applicable standard of health care practice through the testimony of at least one “knowledgeable, competent expert witness.”

Idaho Code section 6-1013 sets forth the required foundation for such testimony: “(a) that such an opinion is actually held by the expert witness, (b) that the said opinion can be testified to with reasonable medical certainty, and (c) that such expert witness possesses professional knowledge and expertise coupled with actual knowledge of the applicable said community standard to which his or her expert opinion testimony is addressed . . . .”

In addition to I.C. Section 6-1013, Rule 56(e) of the Idaho Rules of Civil Procedure imposes additional requirements for the admission of expert testimony in medical malpractice actions: the party offering such evidence must show that it is based upon the witness’ personal knowledge and that it sets forth facts as would be admissible in evidence. The party offering the evidence must also affirmatively show that the witness is competent to testify about the matters stated in his [or her] testimony. Statements that are conclusory or speculative do not satisfy either the requirement of admissibility or competency under Rule 56(e).

Lastly, Idaho Code section 6-1012 requires that the applicable standard of health care practice be established by direct expert testimony, that the medical expert must show that he or she is familiar with the standard of health care practice for the relevant medical specialty, during the relevant timeframe, and in the community where the care was provided, and that the medical expert must explain how he or she became familiar with that standard of care.

Idaho Code section 6-1012 defines “community” as “that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was or allegedly should have been provided.

The Idaho Supreme Court addressed the meaning of “ordinarily served” in Idaho Code section 6-1012: rather than choosing to define community by means of distance from the nearest licensed general hospital, the legislature chose to define community by reference to the locations from which the patient base of the hospital is derived. If users of the hospital’s services commonly go from one location to the place where the hospital is located, then that location falls within the geographical area which constitutes the community; because people residing at one location may commonly use the services provided by more than one hospital, communities may overlap one another.

In the case it was deciding, the Idaho Supreme Court held that an affidavit that fails to identify an anonymous consultant does not categorically fail to comply with the foundation requirements for admissibility of an out-of-area expert’s testimony under Idaho Code section 6-1013. Rather, the inquiry remains whether the out-of-area expert demonstrates how he or she became adequately familiar with the community standard of health care practice, making it sufficiently clear that the expert consulted with a local specialist who had actual knowledge of the standard of health care practice for the proper class of provider during the relevant time period.

The Idaho Supreme Court held that the lower court applied an erroneous legal standard and therefore erred in concluding that the plaintiff’s medical expert’s affidavit was inadmissible solely because he relied on an unidentified physician to familiarize himself with the community standard of health care practice.

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If you may have been injured as a result of medical negligence in Idaho or in another U.S. state, you should promptly find a medical malpractice attorney in Idaho or in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with Idaho medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you.

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$38M Settlement Reached With Large Nursing Home Chain Under False Claims Act October 16th, 2014

162017_132140396847214_292624_nOn October 10, 2014, the U.S. Department of Justice announced that the large, national nursing home chain, Extendicare Health Services Inc. (“Extendicare”) and its subsidiary Progressive Step Corporation (“ProStep”), have agreed to pay $38 million to the United States and eight U.S. states to resolve allegations that Extendicare billed Medicare and Medicaid for materially substandard nursing services that were so deficient that they were effectively worthless and billed Medicare for medically unreasonable and unnecessary rehabilitation therapy services.

Under the terms of the settlement, the federal government will receive $32.3 million and the Medicaid programs of eight states will receive $5.7 million. The eight states involved with the settlement are Indiana, Kentucky, Michigan, Minnesota, Ohio, Pennsylvania, Washington, and Wisconsin.

The settlement resolves civil claims that Extendicare provided medically unreasonable and unnecessary rehabilitation therapy services to its Medicare Part A beneficiaries, particularly during the patients’ assessment reference periods, so that it could bill Medicare for those patients at the highest per diem rate possible in 33 of Extendicare’s skilled nursing homes, between 2007 and 2013.

In addition to the amounts paid in settlement, Extendicare also agreed to a five-year, chain-wide Corporate Integrity Agreement under which Extendicare must have a comprehensive compliance program with systems to address the quality of resident care. Extendicare’s compliance program must include, among other things, corporate-level committees to address compliance and quality, including a committee to assess staffing, and an internal audit program to assess the quality of care provided to its residents. Extendicare must retain an independent monitor, selected by the Office of Inspector General (“OIG”), who will regularly visit Extendicare’s facilities and report to the OIG. In addition, an independent review organization will perform annual reviews of Extendicare’s claims to Medicare.

Two separate whistleblowers who brought claims against Extendicare on behalf of the United States under the federal False Claims Act will receive more than $1.8 million and more than $250,000, respectively. The higher payout involves allegations of upcoding and the lower payout involves claims that Extendicare provided substandard nursing services that were effectively worthless.

Source

Extendicare operates 251 senior care centers and has the capacity for approximately 27,600 residents in North America. Extendicare Health Services, Inc., which is an indirect wholly owned subsidiary of Extendicare, operates 156 senior care facilities in the United States with approximately 15,000 beds. Extendicare also offers nursing care, assisted living and related medical specialty services, such as subacute care and rehabilitative therapy on an inpatient and outpatient basis, and it provides purchasing, management, and consulting services to third-party providers.

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If you or a loved one suffered injuries (or worse) while a resident in a nursing home in the United States, you should promptly consult with a local nursing home claim attorney in your state who may investigate your claim against a nursing home for you and represent you in a nursing home negligence, nursing home neglect, and/or nursing home abuse case, if appropriate.

Click here to visit our website or telephone us in the United States toll-free at 800-295-3959 to be connected with nursing home claim lawyers in your state who my assist you.

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Official Review Finds Military Health Care Only “Average” October 15th, 2014

162017_132140396847214_292624_nIt was announced on October 1, 2014 that U.S. Defense Secretary Chuck Hagel’s 90-day review of the military health system found that it was comparable in access, quality and safety to care offered on average in the private sector. However, Secretary Hagel said “average” was not good enough: “We have the finest military in the world. Our men and women in uniform and their families deserve the finest health care in the world … the military health care system provides health care that is comparable in access, quality and safety to average private-sector health care. But we cannot accept average when it comes to caring for our men and women in uniform and their families. We can do better; we all agree that we can do better.”

In May 2014, Secretary Hagel had ordered a comprehensive review of the Military Health System (“MHS”) to assess whether access to medical care in the MHS met defined standards, whether the quality of health care in the MHS met or exceeded defined benchmarks, and whether the MHS had created a culture of safety with effective processes for ensuring safe and reliable care of its 9.6 million beneficiaries.

As a result of the findings of the review, Secretary Hagel directed all health care facilities identified as “outliers” in categories of access, quality and safety to provide action plans for improvement within 45 days, and further directed the assistant secretary of defense for health affairs and the military services surgeons general to ensure that the department has unified standards for purchased and direct care. Secretary Hagel also ordered that they establish a mechanism by which patients and concerned stakeholders can provide ongoing input.

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The review resulted in six recommendations for the MHS, which provides care for 9.6 million service members, families and military retirees and their families:

1. Immediate action to improve underperformance by addressing the cause of outliers found among MHS’ military treatment facilities, by studying and sharing the experiences of positive outliers and, if poor performance is found, quickly introducing corrective action plans to raise performance;

2. Establish clear enterprise performance goals with standardized metrics and hold the system accountable for improvement, by the MHS creating an enterprise-wide performance management system using a “core set of metrics” for health care access, quality and patient safety. Systemwide performance measures should also be established, and regular formal performance reviews of the MHS should be conducted, with the Defense Health Agency charged with monitoring performance and supporting the health system’s governance;

3. Make good decisions by relying on accurate data, by the MHS developing an enterprise-wide quality and patient safety data analytics system, to include health information technology systems, data management tools and appropriately trained personnel;

4. Show information to everyone — patients, providers and policy makers (transparency of information in direct and TRICARE health delivery);

5. Drive the necessary change with joint MHS decision-making — through new governance models that feature close Service, DHA and OSD collaboration, policy guidance can be developed using common goals, which would advance an understanding of the culture of safety and patient-centered care across the system; and,

6. The MHS should continue to create common standards and processes to improve outcomes across the system for access to care, quality and patient safety where it improves quality, or deliver the same level of quality at a better value.

Source

If you or a loved one were injured due to medical negligence in a VA facility or otherwise through the MHS, you should promptly consult with a local medical malpractice attorney in your U.S. state who may investigate your situation for you and represent you in a medical negligence claim, if appropriate.

Click here to visit our website or telephone us on our toll-free line (800-295-3959) in the United States to be connected with medical malpractice lawyers in your state who may assist you.

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Marvin Hamlisch’s Death The Subject Of New York Medical Malpractice Claim October 14th, 2014

162017_132140396847214_292624_nMarvin Hamlisch, the internationally famed composer and conductor, died at the age of 68 on August 6, 2012, after collapsing and slipping into a coma following a flight from New York to Los Angeles. Mr. Hamlisch never woke up from his coma and he died five days later. The defendant doctor was responsible for monitoring Mr. Hamlisch following Mr. Hamlisch’s kidney transplant surgery that took place on February 14, 2012.

According to the New York medical malpractice lawsuit filed by Mr. Hamlisch’s wife on her own behalf and on behalf of the estate of her husband, Mrs. Hamlisch had contacted the defendant physician on July 2, 2012, and on numerous occasions thereafter, to advise him that her husband was gravely ill. The defendant allegedly told her that her husband’s symptoms were due to back pain and anxiety, without ever physically examining Mr. Hamlisch between July 3 and July 30, 2012.

Another physician admitted Mr. Hamlisch to the hospital on July 23, 2012, due to concern regarding his appearance. The defendant physician discharged Mr. Hamlisch from the hospital on July 30, 2012, after the defendant returned from a vacation, and allegedly advised Mrs. Hamlisch that her husband’s symptoms were due to back pain and anxiety, assuring her that it was “perfectly safe” for her husband to fly to California two days later.

The New York medical malpractice lawsuit alleges that the defendant physician and the defendant hospital were medically negligent, having failed to provide a proper diagnosis, having discharged Mr. Hamlisch from the hospital despite medical tests that indicated he had a dangerously low level of magnesium and other abnormal findings, by negligently failing to order treatment for hypomagnesia, and that the defendant physician was negligent in advising Mr. Hamlisch that it was safe for him to fly to California.

The wife’s medical malpractice lawsuit seeks unspecified compensatory damages, punitive damages,  pre- and post-judgment interest, the costs of suit, and attorney’s fees.

Source

About Marvin Hamlisch

Marvin Hamlisch was born on June 2, 1944. He was a graduate of the Julliard School of Music and Queens College. Mr. Hamlisch had composed more than forty motion picture scores, including The Way We Were, The Sting, Sophie’s Choice, and Ordinary People. Mr. Hamlisch was the recipient of many major awards, including three Oscars, four Grammys, four Emmys, three Golden Globe awards, and a Tony award. He had just completed the musical score for Liberace — Behind The Candelabra, at the time of his death.

Mr. Hamlisch had been the principal pops conductor for the Pittsburgh Symphony Orchestra, the Milwaukee Symphony Orchestra, the Dallas Symphony Orchestra, the Pasadena Symphony and Pops, the Seattle Symphony, the San Diego Symphony, The Buffalo Philharmonic, and The National Symphony Orchestra in Washington, D.C. He was preparing to become the principal pops conductor for The Philadelphia Orchestra at the time of his death.

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If you or a family member may have been injured as a result of medical negligence in New York or in another U.S. state, you should promptly find a medical malpractice attorney in New York or in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website to submit a short, secure form or call us toll-free at 800-295-3959 to be connected with New York medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you.

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Federal Appellate Court Upholds Presuit Requirement Of Florida’s Medical Malpractice Law October 13th, 2014

162017_132140396847214_292624_nOn October 10, 2014, a three-member panel of the U.S. Court of Appeals for the Eleventh Circuit (“Appeals Court”) overturned a lower federal court’s decision that the written authorization form required to be provided by Florida medical malpractice plaintiffs as set forth in Florida Statute § 766.1065 is in conflict with the federal Health Insurance Portability and Accountability Act (“HIPAA”) and therefore was preempted by federal law.

The federal district court had held that the written authorization form required by Florida law as a presuit condition for medical malpractice plaintiffs is not voluntary; because the authorization form is not voluntary, it would result in disclosure of the medical malpractice plaintiff’s HIPAA-protected health information without his consent and without other safeguards in HIPAA and its regulations.

The appeal involved the presuit requirement in Florida Statute § 766.1065, which became effective on July 1, 2013, that a medical malpractice plaintiff execute a written authorization form for release of protected health information as a pre-condition to filing a medical negligence claim. The plaintiff argued that the requirement for a written authorization form that allows the prospective medical malpractice defendant to obtain documents and to conduct ex parte interviews of the prospective plaintiff’s medical providers on matters pertinent to the medical negligence claim was preempted by HIPAA and its accompanying regulations (45 C.F.R. §§ 164.508, 164.512).

The Florida Medical Malpractice Statute

Florida Statute § 766.106(2)(a)-(3)(a) requires a prospective plaintiff to give a 90-day notice of the intent to initiate litigation for medical negligence (“presuit notice”); no medical malpractice lawsuit may be filed for 90 days after the notice is mailed. In addition to the presuit notice, the plaintiff must provide a verified written medical expert opinion from a medical expert to corroborate his reasonable grounds to initiate medical negligence litigation. § 766.203(2).

The presuit notice is required to include: (1) a list, if available, of all known health care providers seen by the plaintiff for the injuries complained of subsequent to the alleged act of negligence; (2) a list, if available, of all known health care providers who treated or evaluated the plaintiff during the 2-year period prior to the alleged act of negligence; (3) copies of all medical records the plaintiff’s experts relied upon in forming their opinions; and (4) an executed authorization form permitting the release of medical information. § 766.106(2)(a).

§ 766.1065(3) specifically requires that the written authorization be construed in accordance with the “Standards for Privacy of Individually Identifiable Health Information” in 45 C.F.R. parts 160 and 164, and that the written authorization must inform the plaintiff that signing the form is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits. § 766.1065(3)(H).

The Florida Statute provides that the written authorization form must expressly allow ex parte interviews (“This authorization expressly allows the persons or class of persons listed . . . above to interview the health care providers listed . . . above, without the presence of the Patient or the Patient’s attorney”) but does not require the treating provider to submit to a request for an interview. § 766.106(6)(b)(5). The written authorization form must warn the plaintiff that information used or disclosed under the authorization may be subject to additional disclosure by the recipient and may not be protected by federal HIPAA privacy regulations. § 766.1065(3)(I). The “persons or class of persons” include the doctor defendant, his insurer, adjuster, experts, and attorneys. § 766.1065(3)(D)-(E).

Federal Preemption

State laws that conflict with federal law are without effect. A state law conflicts with federal law when it is impossible for a private party to comply with both state and federal requirements. “Express preemption” occurs where a federal statute contains explicit preemptive language. The HIPAA statute and its regulations use preemptive language (the HIPPA requirements supersede any contrary provision of State law (42 U.S.C. § 1320d-7(a)(1)); the HIPAA regulations also state that a HIPAA requirement that is contrary to a provision of state law preempts the provision of state law (subject to exceptions). 45 C.F.R. § 160.203.

However, in areas traditionally regulated by the states, there is a presumption against preemption. This presumption applies not only to whether Congress intends preemption but also to the scope of its intended invalidation of state law. If the terms of the federal statute can be read sensibly not to preempt state law, the presumption controls: if the federal preemption clause is susceptible to multiple plausible interpretations, the courts ordinarily accept the reading that disfavors pre-emption.

The HIPPA regulations permit covered entities to disclose protected health information when certain requirements are met, including disclosure made through the judicial process (§ 164.512(e)) or disclosure if an individual expressly authorizes release of his or her medical information in a valid authorization form (§ 164.502(a)(1)(iv)). The HIPAA regulations prohibit only the conditioning of medical treatment or health care benefits on the execution of a HIPAA authorization. C.F.R. § 164.508(b)(4).

§ 766.1065 And HIPAA Requirements 

The Appeals Court noted that the HIPAA regulations expressly allow the release of protected health information upon the signing of a valid authorization. Subsection (2) of § 766.1065 contemplates a plaintiff’s ability to revoke the required authorization and subsection (3) explicitly requires that the authorization include the phrase “the Patient has the right to revoke this authorization in writing.” Although there is a consequence for revocation (the presuit notice is deemed retroactively void), the Appeals Court stated that the HIPAA regulations do not require that a person be able to revoke an authorization free of any consequences — the regulations just require that an authorization be revocable, which the Florida statute requires. Furthermore, the HIPAA regulations do not require that authorizations be narrow but only that they be specific (the Appeals Court stated that doctors will have no difficulty discerning the obvious purpose of a defendant’s request when presented with a signed authorization).

The Appeals Court concluded that the authorization form required in § 766.1065 complies with HIPAA, and that had the drafters of the HIPAA regulations wished to preclude a state legislature from conditioning a public benefit—such as filing a lawsuit—on signing a HIPAA authorization, they could have easily done so, just as they generally prohibit doctors from conditioning medical treatment on signing a HIPAA authorization. Because the HIPPA regulations do not do so, the Appeals Court stated it must give effect to the regulations’ silence.

The Appeals Court further stated that Florida medical malpractice plaintiffs voluntarily choose to seek redress for grievances through Florida’s judicial system. By enacting § 766.1065, Florida conditioned an individual’s ability to use a state-provided resource to advance medical negligence claims—the state judicial system—upon that individual’s executing a limited HIPAA authorization in a form that complies with HIPAA’s requirements. An individual retains the choice whether to file suit, and therefore whether to sign the authorization form.

Source Glen Murphy, Plaintiff-Appellee versus Adolfo C. Dulay, Adolfo C. Dulay, M.D., P.A., State of Florida, Defendants-Appellants, No. 13-14637 (D.C. Docket No. 4:13-cv-00378-RH-CAS).

If you, a family member, or a friend may be the victim of medical malpractice in the United States, you should promptly seek the legal advice of a local medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

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