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Louisiana Medical Malpractice Lawsuit Alleges ER Misdiagnosis Led to Death August 21st, 2014

162017_132140396847214_292624_nOn June 23, 2014, a Louisiana mother filed a medical malpractice lawsuit against a local hospital and two physicians, alleging that the misdiagnosis of her daughter led to her untimely death. The plaintiff seeks in her wrongful death lawsuit unspecified compensatory damages that include funeral expenses, pain and suffering, and related expenses.

The medical malpractice plaintiff alleges that she brought her daughter to the emergency room of the defendant hospital on April 25, 2011 because her daughter was experiencing pain, she was nauseous and vomiting, she was unable to eat, and she was experiencing a burning sensation. One of the defendant physicians who saw the young woman in the emergency room ordered a urinalysis, a UA chemical screen, and a UA microscopic screen, but allegedly the defendant diagnosed the daughter as having peptic ulcer disease without reviewing the abnormal results of the urinalysis.

Because her daughter’s pain began radiating into her neck and her chest after the initial emergency room visit, the mother brought her daughter back to the same emergency room on April 30, 2011, at which time the other defendant physician saw her in the emergency room and diagnosed her as having gastroesophageal reflux disease. The mother’s medical malpractice claim alleges that her daughter was not further screened, medically worked up, or tested at that time before she was given medication for reflux and discharged to home.

When her daughter’s condition failed to improve despite the two visits to the emergency room of the defendant hospital, the mother brought her daughter to another medical facility on May 16, 2011, where her condition was diagnosed as Lupus. By that time, the daughter’s kidney function was reduced to 10% to 20% of normal. The daughter was hospitalized for a lengthy period of time during which she received extensive medical treatment, including surgery, but she nonetheless died on November 17, 2011.

The mother’s medical malpractice lawsuit alleges that had the defendant physicians properly tested and worked up her daughter during her emergency room visits, including properly responding to the abnormal urinalysis and ordering appropriate further testing, she would have been correctly diagnosed and timely appropriate medical treatment would have begun, which would have avoided her daughter’s unnecessary death. The defendant hospital is accused of failing to train, supervise, and/or direct its staff to communicate abnormal lab results to physicians and patients.

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Community members who arrive at hospital emergency rooms with acute, potentially serious medical conditions must necessarily rely on the experience, education, knowledge, and training of the hospital personnel, including the physicians, nurses, and other medical staff, who are assigned to their care – patients rarely have previous knowledge of the qualifications and expertise of those who provide care to them in hospitals, including those who have no direct contact with patients, such as lab technicians who run lab tests and hospital employees whose responsibility it is to communicate important information among the hospital personnel.

If you or a family member were seriously injured or suffered other substantial harms as a result of negligent care in an emergency room, you should promptly seek the assistance of a local medical malpractice attorney in your U.S. state who may investigate your medical negligence claim for you and represent you or your family member in a medical malpractice case, if appropriate.

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

Turn to us when you don’t know where to turn.

 

Massachusetts Appeals Court Overturns Nursing Home Arbitration Win August 20th, 2014

162017_132140396847214_292624_nThe Appeals Court of Massachusetts (“Appeals Court”) issued an opinion on August 18, 2014 that overturned a trial court’s decision that a claim against a nursing home for the beating and strangulation death of a 96-year-old resident by her 97-year-old roommate was required to be arbitrated pursuant to an arbitration agreement that had been signed by the resident’s son three years prior.

The Appeals Court held that the resident’s son did not have a durable power of attorney, he was not acting as his mother’s guardian or conservator when he signed the nursing home arbitration agreement, and that a health care proxy is insufficient to authorize the health care agent to sign an arbitration agreement. Furthermore, there was no evidence or suggestion that the resident had specifically authorized her son to sign the arbitration agreement, which, by its express terms, was not a requirement of admission to the nursing home. Lastly, the Appeals Court held that the son did not sign the arbitration agreement in his individual capacity and that principles of equitable estoppel did not preclude the son from bringing suit.

The Underlying Facts

At the time of  the resident’s admission to the nursing home on February 16, 2006, her son completed the admission authorization process for his mother, at his mother’s request. The admission process included executing numerous agreements, such as a consent for admission, a consent for treatment, a physician consent, and various others enumerated on a two-page “admission authorization” form.

In addition, the resident’s son signed a “Resident and Facility Arbitration Agreement,” which was not a condition of admission and was not listed on the admission authorization form, that provided that “any legal dispute, controversy, demand or claim . . . that arises out of or relates to the Resident Admission Agreement or any services or health care provided by the Facility to the Resident, shall be resolved exclusively by binding arbitration.” The son signed and dated the arbitration agreement on the line for the “Resident Representative Signature,” below a paragraph certifying that the signatory was “the Resident, or a person duly authorized by the Resident, which shall include a responsible party, Health Care Proxy, Power of Attorney, or Legal Guardian.”

The mother did not sign the agreement, she did not specifically authorize her son to sign the agreement, and the son never informed his mother that he entered into an arbitration agreement. Her son did not hold a power of attorney and he was not his mother’s legal guardian or conservator.

After his mother’s death, the son filed a nursing home negligence lawsuit in court and the nursing filed a motion to compel arbitration, pursuant to the Resident and Facility Arbitration Agreement, which the trial court granted. The subsequent arbitration proceeding resulted in a finding in favor of the nursing home. The resident’s son appealed.

The Appeals Court found that the nursing home did not met its burden of showing that signing the arbitration agreement was within the scope of the son’s actual or apparent authority to act on his mother’s behalf in the nursing home admission process. Furthermore, the nursing home could not rely on the doctrine of equitable estoppel (to establish estoppel, a party must show (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission) because the nursing home could not show that any representations induced it to do something different than it otherwise would have done because signing the arbitration agreement was not a condition of admission and the nursing home did not argue that it would have treated the resident differently in any other way if the agreement had not been signed.

The Appeals Court concluded that the son did not have the authority to execute the arbitration agreement on his mother’s behalf; he did not sign the agreement in his individual capacity; and, equitable estoppel is not warranted on the facts of the case. Therefore, the son, as executor of his mother’s estate, would be permitted to seek redress in court for his mother’s death while in the defendant nursing home’s care. The Appeals Court vacated the judgment confirming the arbitration award and remanded the case to the Superior Court for proceedings consistent with its opinion.

Barrow v. Dartmouth House Nursing Home, 2014 Mass. App. LEXIS 99.

If you or a loved one were injured (or worse) while a resident of a nursing home in the United States, you should promptly seek the legal advice of a local nursing home attorney in your state who may investigate your nursing home negligence claim for you and represent you in a claim against a nursing home, if appropriate.

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

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Ohio Medical Malpractice Jury Awards $1.8M In Death Case August 19th, 2014

162017_132140396847214_292624_nOn August 12, 2014, an Ohio medical malpractice jury, after a two-week trial, awarded the estate of a 30-year-old man who never woke up after surgery, $900,000 for loss of companionship and $900,000 for metal anguish, for a total of $1.8 million. The medical malpractice defendants against whom the verdict was rendered were the physician who had assessed and cleared the man for surgery and his medical practice.

The Alleged Underlying Facts

Two weeks after the man had been injured as a result of a traffic collision, he was scheduled for facial surgery on May 22, 2010. In preparation for the surgery, the man was examined by the defendant physician in order to determine if the man was an appropriate candidate for the surgery. According to the medical malpractice lawsuit, the man complained to the defendant physician that he was having severe headaches but the defendant physician cleared the man for surgery anyway.

The surgery took place as scheduled, but the man failed to regain consciousness. He died seven days later. He was unmarried and did not have any children, although he was survived by his parents and two sisters.

The medical malpractice plaintiff (the estate) contended during trial that the man had sustained an undiagnosed subdural hematoma as a result of the traffic collision, which was expanding and causing the build up of pressure, which was causing the man’s severe headaches. Despite the man’s complaints and symptoms, the defendant physician failed to order a CT scan of the man’s head, which would have diagnosed the subdural hematoma that could have been evacuated at that time before the failure to treat the condition led to the man’s death, according to the medical malpractice plaintiff.

The surgeon who performed the surgery and nurses involved with the man’s care were also named as medical malpractice defendants, but the jury determined that they were not responsible for the man’s death (the nurses had noted in the man’s medical records that he complained of headaches but inadequate communication among the health care providers led to the failure to timely and appropriately diagnose the man’s medical condition, according to the plaintiff’s contentions at trial).

The amount of the jury’s verdict is not subject to Ohio’s cap on damages in medical malpractice cases because the cap does not apply to wrongful death claims. The medical malpractice defendants against whom the verdict was rendered have not indicated if they will appeal.

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If you or a member of your family may have been injured (or worse) as a result of medical negligence in Ohio or in another U.S. state, you should promptly seek the legal advice of an Ohio medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice clam for you and represent you in a medical malpractice lawsuit, if appropriate.

Click here to visit our website to complete and submit a secure form or telephone us on our toll-free line (800-295-3959) to be connected with medical malpractice lawyers in Ohio or medical malpractice lawyers in your state who may assist you.

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VA Medical Malpractice Statistics August 18th, 2014

162017_132140396847214_292624_nThe Veterans Health Administration is one of the largest health care providers in the United States, providing care to more than 8.6 million of the 22 million veterans through 152 VA hospitals and 817 community-based outpatient clinics (as of March 30, 2012).

The U.S. Department of Veterans Affairs reports that in the past ten years, through Fiscal Year 2013, the number of medical malpractice claims resulting from VA health care filed each year ranged from 1,225 to 1,670. The average number of paid medical malpractice claims during that same period was 291 per year.  The  average total annual medical malpractice payments for the ten-year period was $76 million. The VA proudly asserts that as a percentage of total patient visits to the VA, paid medical malpractice claims represent only 0.0004%.

The VA Medical Malpractice Claim Process

A veteran who claims to have been injured due to negligent medical care at a VA health care facility by a VA employee or other VA provider and who seeks compensation for the veteran’s injuries and damages must proceed with an administrative claim under the Federal Tort Claims Act (FTCA), which provides very stringent requirements regarding how and when a claim must be made, and with whom the claim must be filed. The VA’s regulations regarding medical malpractice claims filed pursuant to the FTCA require that the Office of General Counsel (OGC) investigate the claim – if the OGC determines that the medical malpractice claim against the VA is meritorious, the OGC may negotiate a settlement of the claim.

In the event that the OGC administratively denies the medical malpractice claim, the veteran may request a reconsideration of the claim or may file a medical malpractice lawsuit in the U.S. District Court. If a timely reconsideration is filed, the veteran may file a federal medical malpractice lawsuit after six months from the date of filing for reconsideration of the claim. The United States of America is named as the defendant in a federal court FTCA lawsuit.

The U.S. Department of Justice (DOJ) represents the federal government in FTCA lawsuits. Once in the hands of the DOJ, the DOJ may attempt to settle the veteran’s medical malpractice lawsuit, regardless of the OGC’s denial of the claim.

If there is a settlement or judgment in favor of a veteran in a veteran’s medical malpractice claim, the VA’s Office of Medical Legal Affairs (OMLA) is obligated to review the matter to determine if the medical malpractice payment was as a result of improper action or the failure to take appropriate action by a licensed practitioner. If so, the OMLA must determine if it was due to substandard care, professional incompetence, or professional misconduct and should be reported to the National Practitioner Data Bank and/or state licensing boards.

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If you or a loved one are a veteran and may have a medical malpractice claim against the VA for substandard or otherwise negligent medical care, you should promptly consult with a VA medical malpractice lawyer (a FTCA lawyer) who may investigate your medical negligence claim for you, determine if the claim falls under the FTCA, file the timely and necessary notices and claims to the appropriate agency and others under the FTCA, and represent you with regard to your VA medical malpractice claim, if appropriate.

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

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Ohio Nursing Home Negligence Case Alleges Death Due To Pressure Ulcers August 17th, 2014

162017_132140396847214_292624_nThe estate of a man and the man’s surviving wife have filed a nursing home negligence case in state court in Ohio seeking in excess of $25,000 against the nursing home where the man had been a resident in order to receive rehabilitative services following a fractured patella.

The nursing home malpractice lawsuit alleges that the nursing home should have known that the man was at risk for developing pressure ulcers (bed sores) on his heel, feet, and ankles if he did not receive the proper preventative care and treatment.

According to the Ohio nursing home negligence lawsuit, the man was admitted to the defendant Ohio nursing home on February 2, 2013 at which time the nursing home staff who evaluated the man upon his admission negligently failed to identify his substantial risk of developing pressure ulcers due to his medical condition and his required bedrest. As a result of the defendant nursing home’s negligent failures, the man developed pressure ulcers on both heels, his ankles, and both feet, which became infected, according to the lawsuit.

On April 2, 2013, the man was discharged from the nursing home and admitted into the hospital, for treatment of his bed sores. Despite hospital care from April 2, 2013 to June 30, 2013, the man’s bed sores worsened to the point that he developed gangrene, had a urinary tract infection, suffered pulmonary aspiration, and became septic. He died on July 1, 2013, allegedly due to his multiple serious complications due to the pressure ulcers.

The Ohio nursing home lawsuit alleges that the man suffered physical pain, incurred medical expenses, and seeks reimbursement for funeral expenses.

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What Are Pressure Ulcers?

A pressure ulcer is an area of skin that breaks down when something keeps rubbing or pressing against the skin and is caused by pressure on the skin that reduces blood flow to the area, leading to death of skin and the development of an ulcer (the skin often becomes red, worsens over time, a blister is formed, and then an open sore appears). The most common areas where pressure ulcers develop are areas where parts of the body are in direct contact with a mattress during bedrest: the buttocks, elbows, hips, heels, ankles, shoulders, back, and the back of the head.

Pressure ulcers due to deep tissue injury may be purple or maroon, and the area around them may be sore, firm, mushy, boggy, warmer, or cooler compared with tissue nearby. In order to objectively describe the severity of pressure ulcers, they are often “staged” within four categories, with Stage IV being the worse: Stage I involves a reddened area on the skin that, when pressed, does not turn white, which is a sign that a pressure ulcer is starting to develop; Stage II is when the skin blisters or forms an open sore and the area around the sore may be red and irritated; Stage III is when the skin develops an open, sunken hole referred to as a crater, which indicates that there is damage to the tissue below the skin; and, Stage IV is when the pressure ulcer has become so deep that there is damage to the muscle and bone, and sometimes to tendons and joints. (Pressure ulcers cannot be staged when the tissue at the base of the ulcer is covered by dead skin that is yellow, tan, green, or brown.)

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If you or a loved one suffered pressure ulcers (bed sores) during a nursing home stay or hospital stay, you should promptly seek the assistance of a nursing home negligence attorney or a hospital malpractice attorney who may investigate your nursing home claim or hospital malpractice claim for you and represent you in a nursing home case or hospital malpractice case, if appropriate.

Click here to visit our website to complete and submit a secure form or call us toll-free at 800-295-3959 to be connected with nursing home lawyers or hospital malpractice lawyers in your state who may assist you.

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Feds Put Brakes On Some States Medical Malpractice Reporting Loopholes August 16th, 2014

162017_132140396847214_292624_nIn a decision issued on May 22, 2014, the Secretary of the U.S. Department of Health and Human Services, Kathleen Sebelius, formally determined that the efforts by Oregon and Massachusetts to circumvent requirements to report medical malpractice payments to the National Practitioner Data Bank (NPDB) would be in violation of federal law.

Under current federal law, a payment made by an insurance company, hospital, or other third party, on behalf of a health care provider in settlement of a claim or judgment made against that health care provider, must be reported to the NPDB, regardless whether the health care provider is found to have breached the standard of care. A medical malpractice claim is defined under the law as “a written claim or demand for payment based on a health care provider’s furnishing (or failure to furnish) health care services, and includes the filing of a cause of action, based on the law of tort, brought in any court of any State or the United States seeking monetary damages.”

Massachusetts Law

Under the Massachusetts Disclosure, Apology, and Offer (DA&O) medical malpractice tort reform law that became effective on November 5, 2012, medical malpractice victims are required to file a notice with the health care provider and engage in resolution discussions for a mandatory six-month period before a medical malpractice case can be filed. Some in Massachusetts have argued that the “notice” is not a reportable medical malpractice claim where the notice does not contain a written demand for payment since Massachusetts medical malpractice victims are required to wait six months before filing a medical malpractice “claim,” and therefore any medical malpractice payments made pursuant to the notice are not reportable to the NPDB.

Oregon Law

Orgeon’s medical malpractice tort reform that was signed into law on March 18, 2013 creates an “Early Discussion and Resolution” pre-lawsuit process that involves a voluntary and confidential structured program whereby medical malpractice victims and health care practitioners and providers may file a notice of adverse event after which the parties engage in discussions and possibly mediation that may result in an offer of compensation being made. The intent of the Oregon law is to define the compensation paid as a result of a notice of adverse event as not being a written claim or demand for payment that must be reported to the NPDB.

Some consumer groups have pushed to change the NPDB regulations so that all demands for payment, whether written or verbal, that result in a medical malpractice payment must be reported to the NPDB, thereby expanding the reporting requirement from only written claims to just about all claims.

The Secretary’s Decision

The Secretary of the U.S. Department of Health and Human Services decided that all payments that include a written claim or demand for payment under Massachusetts’ DA&O model and under Oregon’s early discussion and resolution model are reportable to the NPDB, without expanding the reporting requirement to verbal demands for payment.

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If you or a family member may have been seriously injured or suffered other harms as a result of medical malpractice in Massachusetts, in Oregon, or in another U.S. state, you should promptly consult with a Massachusetts medical malpractice attorney, an Oregon medical malpractice attorney, or a medical malpractice attorney 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 medical malpractice lawyers in your state who may assist you.

Turn to us when you don’t know where to turn.

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The Failure Of Wisconsin’s Medical Mediation Panels August 15th, 2014

162017_132140396847214_292624_nThe Wisconsin Legislature created Medical Mediation Panels in 1986 in an effort to provide “an informal, inexpensive and expedient means for resolving medical malpractice disputes without litigation,” providing an early neutral evaluation that may reduce litigation costs by identifying claims without merit as early as possible and by expediting the resolution of those claims that do have merit. Wis. Stat. § 655.42(1).

The Medical Mediation Panels, each consisting of a lawyer, a health care provider, and a layperson, are intended to provide an objective assessment of the strengths and weaknesses of a medical malpractice claim, and it is a requirement in Wisconsin that all medical malpractice claims go through this process before the cases can be filed in court.

The official statistics regarding Wisconsin’s Medical Mediation Panels are: from 1986 to 1994, in cases where the request for mediation was filed prior to the commencement of a court action, 9.2% of the cases settled as a direct result of the mediation; 42.8% of the cases resulted in neither a settlement nor a filing in circuit court by the time the statute of limitations had expired; in 19.4% of the cases, the parties in circuit court indicated that early neutral evaluation served a constructive purpose; and, in 28.6% percent of the cases, mediation was perceived as having served no constructive purpose. In cases where the request for mediation was filed in conjunction with a court action, 3.5% of the cases settled as a direct result of the mediation; in 41.8% of the cases, the parties indicated that early neutral evaluation served a constructive purpose; and, in 54.7% of the cases, mediation was perceived as serving no constructive purpose.

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Recent experiences with Wisconsin Medical Mediation Panels show that the Panels are increasingly considered to be failures: 410 medical malpractice claims were filed for Medical Mediation Panel consideration in 1987 (the first full year that the panels operated), falling to 161 in 2013. Sixty percent of the 302 medical malpractice claims that were filed for Medical Mediation Panel consideration in 2012 and 2013 expired due to procedural or scheduling problems – of the 67 medical malpractice claims that had a hearing, only two were resolved as a result of the hearing. Medical Mediation Panel hearings dropped from almost 55% in 2003 to 22.5% in 2013.

One of the greatest legal loopholes in the procedure is that if a hearing is not scheduled within 90 days of the filing, an extension cannot be granted unless all parties agree to an extension, which rarely occurs, resulting in the case being administratively closed. With the likelihood that one or more participating parties will exercise their mediation veto power by refusing to consult to an extension, there is little incentive for any of the parties to take the process seriously or to spend the time and money to prepare to present medical malpractice claims before a medical mediation panel – many medical malpractice lawyers consider the Wisconsin medical mediation panel process to be a waste of time.

The additional burdens placed on medical malpractice victims in Wisconsin and restrictions on recoverable medical malpractice damages have resulted in a greater than 50% decrease in the number of medical malpractice cases filed in Wisconsin since 1999, while Wisconsin’s state-managed medical malpractice insurance fund that pays medical malpractice claims in the amount of $1 million or more has grown steadily to $1.15 billion.

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If you or a loved one were injured due to medical negligence in Wisconsin or in another U.S. state, you should promptly seek the legal advice of a Wisconsin medical malpractice attorney or a 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.

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

Turn to us when you don’t know where to turn.

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MediBid.com: Got Cash To Pay For A Doctor? Let Doctors Bid For Your Business. August 14th, 2014

162017_132140396847214_292624_nIn a nod to consumers who are increasingly using online services to buy just about whatever they need (or desire), a website called MediBid.com offers a service connecting patients who are willing to pay cash, with doctors and health care facilities who are willing to bid for their business. About 6,000 physicians, surgery centers, and even some hospitals have registered with the website to become “bidders,” and about 120,000 health care consumers, who are called “seekers,” have used MediBid.com to date.

Bidders pay $49.99 per year and in exchange they may bid up to 12 times during the year in one category, or they may opt to pay $249.99 per year ($24.90 per month) for unlimited bidding in an unlimited number of categories. Seekers pay $25 per medical request or they can sign up for one year at the rate of $4.95 per month, which allows them an unlimited number of medical requests for one year. Medical facilities that become bidders are charged based on the number of physicians, ranging from $1,000 per year for 1 to 10 registered physicians to $5,000 for 76 or more registered physicians.

MediBid.com may appeal to seekers who have Healthcare Savings Accounts, have high-deductible health care plans, or are self-pays. MediBid.com may appeal to bidders who benefit from a set, upfront cash payment instead of dealing with the paperwork necessary to bill patients’ health care plans, and then waiting for payments that are trending lower every year. Seekers may also benefit from not being limited to receiving medical services from physicians or health care facilities that participate in their health care plan – seekers are provided a choice and can make their own health care decisions without the restrictions placed on them by their health care plans and insurers.

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Some critics of the MediBid.com model of seeking and providing medical services point out that MediBid.com only requires physician bidders to provide their medical license number when they register with MediBid.com – it is up to seekers to do their due diligence in checking out the qualifications, competency, and history of the bidders with whom they contract.

Others suggest that you get what you pay for – the cheapest medical services are not always the best choice (the bidder may be a bidder because he has higher complication rates, which may not be included in the medical care purchased, or the services are provided at facilities that may not be subject to the same scrutiny as accredited hospitals or are less regulated health care facilities (such as some physician-owned surgery centers).

If a patient is not satisfied with the medical services from a bidder that was arranged through MediBid.com, they may have limited recourse, whereas patients who receive care through their health insurance plan may have greater opportunity or resources to resolve their complaints and issues.

If you or a loved one were seriously injured or suffered other substantial harm as a result of medical negligence in the United States, you should promptly seek the legal advice of a medical malpractice attorney 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 medical malpractice lawyers in your state who may assist you.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

What Is California Proposition 46? August 13th, 2014

162017_132140396847214_292624_nThe so-called California Proposition 46 (“Medical Malpractice Lawsuits Cap and Drug Testing of Doctors Initiative”) is on the November 4, 2014 ballot in California after being certified on May 15, 2014 by the California Secretary of State. The proponents of California 46 had submitted approximately 830,000 signatures in support of placing the initiative on the November 2014 ballot, which far-exceeded the required 504,760 signatures.

Even the official ballot title of Proposition 46 (“Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute”) is controversial: the Editorial Board of the San Diego Union-Tribune argued that the California Attorney General’s placement of the phrase “Drug and Alcohol Testing of Doctors” as the first part of the title was intended to “intentionally deceive[d] ballot signers by highlighting one of the fig leaves that trial lawyers attached to the measure to hide their real intent. It’s in keeping with [the Attorney General's] long history of using misleading ballot titles and summaries to help measures her allies like and hurt measures they don’t.”

The Official Summary for Proposition 46 states: “Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation.”

If passed into law, Proposition 46 would:

- Increase California’s cap on damages in medical negligence lawsuits to over $1 million from the current cap in the amount of $250,000, which was established in 1975;

- Require drug and alcohol testing of physicians and reporting positive test results to the Medical Board of California;

- Require the Medical Board of California to suspend physicians pending investigations of positive drug and alcohol tests and take appropriate disciplinary action if the physician is found impaired while on duty;

- Require health care practitioners to report any physician suspected of drug or alcohol impairment or medical negligence;

- Require health care practitioners to consult the state prescription drug history database before prescribing certain controlled substances.

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California’s Medical Injury Compensation Reform Act (“MICRA”) was enacted in 1975. MICRA placed a cap on noneconomic damages (pain and suffering, mental anguish, etc.) in medical malpractice cases in the fixed amount of $250,000, and has not been increased since 1975. Had MICRA provided that the cap would be increased to keep pace with inflation, the current cap would be $1.1 million (the $250,000 cap in today’s dollars is equal to $57,600 in 1975 dollars).

The impetus for Proposition 46 was the deaths of two children, ten-year-old Troy Pack and seven-year-old Alana Pack, who were struck by a vehicle and killed while walking on a sidewalk by a prescription drug abusing driver who had fallen asleep while driving (it was determined that the driver had consumed vodka and had taken more than a dozen painkillers before her vehicle jumped a curb and killed the two children). The driver had been overprescribed thousands of narcotic drugs by multiple doctors at the same hospital as a result of doctor-shopping (where patients visit multiple doctors in order to obtain prescription drugs). Proposition 46 is referred to as the Troy and Alana Pack Patient Safety Act.

If you have been seriously injured (or worse) as a result of medical malpractice in California or in another U.S. state, you should promptly seek to consult with a California medical malpractice attorney or a 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.

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

Turn to us when you don’t know where to turn.

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Maine Medical Malpractice Insurer Announces Large Dividend And Rate Reduction August 12th, 2014

162017_132140396847214_292624_nMedical Mutual Insurance Company of Maine (“Medical Mutual”), the dominant medical malpractice insurance company in Maine that insures approximately 3,000 Maine physicians as well as more than 20 Maine hospitals (about 63% of the medical malpractice insurance market in Maine), announced earlier this year its largest dividend, in the amount of $5 million.

Late last month, Medical Mutual advised its insureds that they would be receiving an average net rate reduction in their insurance premiums in the amount of 3.2%, effective for renewals and new policies as of September 1, 2014. This most recent rate reduction is the  fourth for its insureds since 2008 (10.8% in 2008, 5% in 2010, and 1.3% in 2011) – since 2005, the medical malpractice insurance rates charged by Medical Mutual to its insureds have been reduced by almost 20%.

Medical Mutual credits the rate reductions to the decrease in medical malpractice claims against its insureds, who Medical Mutual stated are “providing high quality care and emphasizing patient safety within” their practices.

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Medical Mutual reports that it paid less than 200 claims in 2013, compared to a high of 434 claims paid in 2003. (The National Practitioner Data Bank reports that 53 medical malpractice payments were made in Maine in 2013, which was up from 44 in 2010; the National Practitioner Data Bank further reports that the number of adverse actions reports that it received from Maine was 227 in 2013, which was a decrease from 255 in 2012 and from 292 in 2011.)

While Medical Mutual believes that the favorable decrease in its medical malpractice claims experience is attributable to better care provided by its insured physicians and other health care providers, Maine medical malpractice lawyers who represent medical malpractice victims contend that many meritorious medical malpractice claims in Maine are not being pursued because medical malpractice tort reforms in Maine are slanted in favor of physicians that also double the litigation costs for Maine medical malpractice victims – increased costs of pursuing medical malpractice cases due to tort reforms result in the smaller yet highly meritorious medical malpractice claims being left without a remedy because medical malpractice lawyers who represent medical malpractice victims are less likely to invest massive amounts of their time, and advance ever-increasing costs and expenses incurred in litigating medical malpractice claims, in pursuing medical malpractice cases in Maine.

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The public policy issue that must be re-examined in Maine is whether the medical malpractice reforms that were first passed into law in 1986, which have resulted in less medical malpractice claims and have reduced medical malpractice insurance costs for Maine physicians and other health care providers, have caused unanticipated, unfair, and unjust harms to the victims of medical negligence in Maine.

If Maine physicians who breach the standard of care in treating their patients who thereby suffer permanent and substantial injuries are allowed to escape responsibility for their wrongful acts and omissions, then what incentive do Maine physicians have to improve the medical care they provide and refrain from causing needless harm to their patients?

If you or a family member were injured (or worse) as a result of medical negligence in Maine or in another U.S. state, you should promptly consult with a Maine medical malpractice attorney or a medical malpractice attorney 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 telephone us on our toll-free line (800-295-3959) to be connected with Maine medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you.

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