Legal Medicine

HOW TO PICK THE RIGHT NURSING HOME OR REHAB

2012-01-27T09:59:00.003-05:00

This morning I had a conversation with a friend about his Mom needing rehabilitation post surgery.

Last week I discussed with a colleague how her Mom had just been discharged from a rehab facility after two falls and two hip fractures (one of which occurred during the rehab for the first).

This morning another friend had a conference call with family about coordinating care for a family member.

A call this week came in from a stranger who wanted to know the best assisted living facility in our area.

Bottom line is that most of us will be faced with these issues. Caring for our parents in not easy and coordinating their care is not a simple task.

I read this week in a text book that the average Mother will spend 17 years caring for her own children, and 18-19 years caring for her parents.

Did you catch that? More time caring for and or coordinating the care for your parents than your own kids? This is now the life we lead - people are living longer and care is available. Coordinating it is complicated. Its exhausting and emotional. But necessary.

So where do you start?

1. You start before the emergency comes up. You start by learning your options NOW and discussing these issues with your family, NOW. Not when you get a call about a fall, or hospitalization, etc.

2. You start by knowing your options - on how to pay, etc.

So where do you get all this information?

A CONSUMER'S GUIDE TO LONG TERM CARE IN VIRGINIA. A book that our office wrote so that folks will know their options before the emerging happens.

Call Mary Ann Spencer in our office today to order your copy ($9 includes shipping and handling) or order your Ebook for Kindle / Ipad etc. On Amazon.com.

540-985-0098. I hope this resource will help.

HOSPITAL ERRORS GO UNREPORTED

2012-01-09T10:02:00.005-05:00

The New York Times published a great article last week titled, "Report Finds Most Errors at Hospitals Go Unreported."

The opening sentence says it all:

Hospital employees recognize and report only one out of seven errors, accidents and other events that harm Medicare patients while they are hospitalized, federal investigators say in a new report.

The report doesn't surprise me...we see medical errors in hospitals every day and most of them go unreported...even hidden.

Go read the article for yourself and share any similar experiences you, or your family, have experienced in the following regional hospitals:

Alleghany Regional Hospital
Bath Community Hospital
Buchanan General Hospital
Carilion Bedford Memorial Hospital
Carilion Franklin Memorial Hospital
Carilion Giles Memorial Hospital
Carilion New River Valley Hospital
Carilion Roanoke Memorial Hospital
Centra Lynchburg General Hospital
Centra Virginia Baptist Hospital
Danville Regional Medical Center
Dickenson Community Hospital
Johnston Memorial Hospital
Lewis-Gale Medical Center
Martinsville Memorial Hospital
Montgomery Regional Hospital
Norton Community Hospital
Page Memorial Hospital
Pioneer Community Hospital
Pulaski Community Hospital
Rockingham Memorial Hospital
Smyth County Community Hospital
Stonewall Jackson Hospital
Tazewell Community Hospital
Twin County Comunnity Hospital
Wellmont Bristol Regional Hospital
Wellmont Lee Regional Medical Center
Wellmont Lonesome Pine Hospital
Wythe County Community Hospital

WHERE IS MY DOCTOR...I MEAN NURSE PRACTITIONER?

2012-01-06T14:57:00.005-05:00

Today's Roanoke Times ran an article titled, "Proposal calls for medical teamwork between doctors, nurse practitioners" which causes me a great deal of concern.

Here is my problem: Patients rarely get to see their doctors anymore...they are pushed off on nurse practitioners....and it is all about money. I am aware of a local healthcare organization that wants their doctors to spend no more than 7 minutes with their patients. That's right...7 minutes. Why? Because if the doctor limits his/her time with the patient he/she can see many more patients per day. These organizations pay the nurse practitioners less than they pay the doctors so the organization wins on two counts...increased income and less cost.

Who loses? The Patient.

Under the current system, Nurse Practitioners are supposed to be "supervised" by a medical doctor and this system is bad enough. Last year in the New River Valley we learned of a situation where the doctor who "supervised" the nurse providing care locally lived and practiced medicine in North Carolina. Do you call this arrangement "supervision"? I don't.

My Take: I know there are many competent and caring Nurse Practitioners in Virginia. However, there is something to be gained by having that potentially life-threatening problem checked by a medical doctor with four years of medical school, internship, residency, state licensure, and potential board certification. Unfortunately, it appears the Medical Society of Virginia and the Virginia Council of Nurse Practitioners have already reached an agreement on the issue.

I am sure money had nothing to do with the decision.

IF YOU THINK YOU HAVE BEEN THE VICTIM OF MEDICAL MALPRACTICE

2012-01-03T09:14:00.004-05:00

If you think you have been the victim of Medical Malpractice, this is the advice I would give you if you called our office:

1. Be patient.

It does not help to call a lawyer the week something happened, because rarely does anyone know the scope of their injury within a week.

In order for a case to be worth your time and effort, the injury suffered must be Serious and Permanent. You don't want to spend $20,000 on experts, 40% on attorneys fees, if your case is only worth $10,000.

2. Do not make threats.

Please don't send a letter to the doctor or hospital, threatening to file a lawsuit. No one is scared or moved by these threats. If you would like to have a calm conversation with risk management at the hospital, do so. But listen, don't speak during the conversation. What you say can hurt you in a lawsuit.

3. Request your COMPLETE medical record.

Ask the doctor, hospital, etc., for everything for the time in question. And do not be surprised if they want to charge you for copies.

4. Call an attorney you know or know by reputation.

It is an important decision to hire an attorney. You need to feel comfortable with that firm's ethic, their staff before you pursue a lawsuit. If you want a bulldog, go get a bulldog. If you want a firm that will be caring, and compassionate, ask around. Don't let advertising be your only guide.

5. Understand the possible outcomes.

A lawsuit will not close down a nursing home or hospital. Your lawsuit will not likely lead to the revocation of a license to practice medicine. A lawsuit can bring about two things and two things alone - some accountability, and money. That is all.

If you would like to discuss your specific case, or questions related to it, do not hesitate to contact our office. We would be so glad to speak with you and investigate whether you have a Virginia Medical Malpractice Case.

Wait and see what happens. If you do not suffer permanent and serious injury as a result of the negligence, you may not have a case.

MALPRACTICE AGAINST THE VETERANS ADMINISTRATION

2011-12-27T10:10:00.002-05:00

The VA (Veterans Administration) is not like your private hospital.

If a physician at your local hospital is negligent, and causes a patient injury, you can file a lawsuit in state court.

If a physician at the VA is negligent, and that physician is an employee of the VA, you cannot file suit in state court. You have to file suit against the United States.

Sounds crazy, eh?

VA cases are defined by Federal Law, specifically the Federal Tort Claims Act which has very specific provisions and rules applying to VA cases.

If you have suffered what you believe to be medical negligence at your Virginia Veterans Administration, and you want an attorney with experience in successfully representing VA patients, please call Frith & Ellerman law firm. We would be honored to review and investigate your case, and if appropriate, file a Notice of Claim and or file your case in Federal Court.

HEY TEXAS...HOW IS THAT TORT REFORM WORKING OUT FOR YOU?

2011-12-21T06:00:00.002-05:00

The tort reform movement took hold of the Long Horn State in 2003 guaranteeing to rid the state of those pesky, scumbag trial lawyers and, as a result, keep all of those great doctors from leaving the state and keeping medical, hospital, and surgical bills within reason since no one would be paying those outrageous jury verdicts in medical malpractice cases.

What has been the result?

A report from the consumer advocacy group, Public Citizen, found the following:

Texans’ health care costs and insurance premiums have continued to grow, outpacing the national average, since the state imposed a cap on non economic damages for medical liability lawsuits in 2003.

The report’s findings undercut the tenet espoused by proponents of the cap: that medical malpractice lawsuits contribute significantly to the cost of health care. Since Texas instituted a $250,000 cap on non economic damages, malpractice litigation has declined precipitously, but health care costs and insurance premiums have not followed suit.

“Those who blame medical malpractice litigation for rising health care costs and diminished access to care tend to focus on the theory that the fear of litigation motivates doctors to prescribe unnecessary tests and procedures to insulate themselves against potential lawsuits,” the report’s authors said.

Did the cap on damages hold down the cost of medical care in Texas? No. The data shows that Medicare spending for prescribed tests and procedures in Texas increased nearly 40 percent faster than the national average in the four years after the cap was implemented. Medicare spending for diagnostic testing increased approximately 25 percent faster than the national average over the same time period.

Don't mess with Texas....they seem to be pretty messed up as it is.

CHOOSING A NURSING HOME

2011-12-20T06:10:00.004-05:00

Lauren and I have written numerous blogs on issues to consider in selecting a nursing home.

It can be a very important decision.

The Richmond Times Dispatch published an article today titled, "MODERN AGING: Do research on nursing homes."

It is a very good read.

VIRGINIA TRUCKING LAWYER

2011-12-19T15:25:00.002-05:00

I just read about a federal jury verdict in New Hampshire - $8.5 million dollars to a woman and her small children.

Why did a jury give them $8,500,000?
Because their father / husband was killed when he was run over by a tractor trailer.

I wish this was an isolated incident but it is not. We have been involved in trucking cases in Virginia and the facts are often the same:

Tractor trailer driver is not paying attention.
Accident happens.
Driver in the second vehicle suffers extensive injury and is taken by helicopter to the nearest level 1 Trauma hospital.
Lives are permanently changed and not for the better.

It is a heartbreaking story. And did the trucking company offer an apology? To pay for the father's lost wages? To admit liability and let the family move on?

It doesn't appear that way. It appears the family had to go to Federal Court to prove the driver's fault.. and then, tell a jury about their loss.

Please let us know if we can help you with a Trucking Case in Western Virginia. We can't undue what has been done... but we can do our best to make the trucking companies take responsibility.

INMATES AND PAROLEES MOVING INTO NURSING HOMES: ARE YOU KIDDING ME?

2011-12-19T10:11:00.004-05:00

We place our mothers, fathers, brothers, and sisters into nursing homes because they can no longer take care of themselves and we are, for a number of reasons, unable to provide the care they need. In short, these very important loved ones in our lives are vulnerable and need to be cared for and protected.

Contrast the above reality with a recently published article in the Journal of the American Medical Directors Association (JAMDA). The article was written by Jeffrey Nichols, MD, the vice president for medical services fro the Cabrini Eldercare Consortium in New York City. Dr. Nichols discusses a previous article published by JAMDA in which the state of New York was reviewing its policies regarding the placement in long term care facilities of current prison inmates and parolees.

I guess it is cheaper to place an elderly convict or parolee into a nursing home than it is to house them where they (at least the convicts) belong...in prison. If this wasn't so ridiculous it would be comical.

So let's look at that picture again. Mom needs 24 hours nursing care and assistance with feeding and all activities of daily living and we are going to place her in a nursing home occupied by elderly convicts with a track record of criminal activity.

What the hell is going on?

THE HAZARDS OF HEALTH CARE IN AMERICA

2011-12-13T09:23:00.003-05:00

My local paper, The Roanoke Times, ran a syndicated article today written by Joe and Teresa Gradeon of The People's Pharmacy. The provided the following scary statistics about health care in America:

* Between 76,000 and 137,000 people die annually from fatal drug reactions in the hospital

* Fatal drug reactions kill more than 100,000 people outside of the hospital setting each year

* Misdiagnosis accounts for approximately 100,000 deaths per year

* Preventable lethal blood clots kill between 100,000 and 200,000 people every year

* More than 100,000 people die annually from infections caught in hospitals and nursing homes

My Recommendation: Share these medical facts the next time someone tells you we have the best healthcare in the world!

HEALTH CARE COST - Where does the money go

2011-12-12T11:08:00.003-05:00

So I tried to steal this picture from Met Life's Website.

If you could read it clearly (and you should by going to their website ) you would see that long term care costs are UP. And while millions of Americans need long term care, the costs are increasing annually.

Their key findings (and yes this is directly from their website and study) are as follows:

- The private pay daily rate rose over 4% in the last year
- assisted living (which is almost all private pay) rose over 5%

Long Term Care is getting more expensive. Do you think the extra money is going into additional nurses or nurse salaries?

Do you think it is going to train new employees better?

I would hope so but the Met Life survery does not reflect the increase in costs are related to staffing. And until staffing becomes the priority of the long term care industry, accidents, and even malpractice will happen.

Let us know if we can evaluate your nursing home negligence case in Virginia, today.

ACCOUNTABILITY AT TENN. NURSING HOME?

2011-12-12T09:55:00.004-05:00

Often we will hear terrible stories of abuse or neglect at a nursing home.

Occassionally, the care providers who are responsible lose their jobs.. infrequently they lose their licenses or face criminal prosecution.

Most of the time, the insurance carrier for the nursing home settles the case and no real change occurs.

In Bristol Va/Tenn., a nursing home was taken to task last year for a serious of assaults that occurred on the property.

Was the administrator fired?

Read all about it in the Bristol News

Do you think justice was done?

TAKE YOUR MEDICAID BENEFITS AND GO HOME

2011-12-10T06:33:00.001-05:00

This might sound like a bad idea...but it is not!

Most nursing homes are merely nothing more than "warehouses for the elderly." They are under-staffed and the staff who are present are often under-trained and over-worked.

The Administrator's main job is to increase profits and he/she does this by cutting the costs of labor (fewer nurses) and reducing other overhead expenses (like decent food).

There has been a change in Medicaid and, in appropriate situations, Medicaid may pay for at home care as this article from The New York Times discusses. In my opinion, at home care is a win-win situation.

VIRGINIA MEDICAL MALPRACTICE CASE - Way to go Jury!

2011-12-09T10:37:00.005-05:00

This morning I read about a big case in Fairfax County Virginia.

Now, the sad thing about big in Medical Malpractice cases in Virginia, is that usually the following not so great things had to occur:

1. A physician made a huge mistake = malpractice

2. Someone suffered a substantial or permanent injury as a result

3. And a jury agreed with the allegations of negligence and permanent harm.

In order to even get to the jury, you have to

1. file a lawsuit

2. hire experts

3. take depositions

4. go to Court (usually takes 1 year or more to get a court date)

The Fairfax jury awarded $2.5 million dollars to a patient who had breast cancer 13 months prior to being diagnosed, but was missed by the radiologist.

The result? She now has a more aggressive form of Cancer and a life expectancy that is decreased.

Hmm. She is 54 years old. Maybe has kids. Maybe they are college age. Maybe she won't get to see them get married or meet her grand kids.

Someone could read about the case in the paper and think she is wrong for suing. Someone could even blame her for making health care so expensive in this country. Do you think her kids would rather she be alive to meet her grand kids in 10 years, or have $1.5 million dollars (that is all the family will likely get after trial costs, attorneys fees, experts etc).

My guess is they would rather have a healthy Mom than money... BUT, none the less, I think it sounds like the jury did the right thing.

SPEND SOME TIME AT THE NURSING HOME THIS CHRISTMAS

2011-12-09T10:11:00.002-05:00

Lauren and I spent a full day yesterday in a mediation trying to resolve an injury claim. The mediation took place at the nursing home where our client has lived for the last 14 months.

The mediation was unsuccessful (we go to trial in less than 2 months) but Lauren and I witnessed an interesting day at the nursing home.

The staff and residents were getting ready for their Christmas party. Decorations went up, Santa hats were everywhere, special food and drinks were prepared. A piano was rolled into the dining room and Christmas carolers were reviewing their song lists.

Most importantly, there was a smile on all of the residents' faces...even a little spring in their step. Families and friends were also in attendance and you could tell their presence warmed the hearts of all who now call the nursing home their "Home."

If you have a loved one or friend in a nursing home, take time out of your busy day to pay them a visit during the Holidays. It will certainly brighten their day.

GRANNY CAMS CATCH ANOTHER BAD GUY

2011-11-30T06:56:00.000-05:00

This news report comes from Ohio.

Steve Piskor had grown so concerned about the treatment his mother was receiving at a MetroHealth Medical Center nursing home that he installed a hidden camera in her room along with a sign that warned employees of its presence. Yet, over the next two months, he found numerous instances of aides mocking and abusing his 78-year-old mother at MetroHealth's Prentiss Center for Skilled Nursing Care on Scranton Road in Cleveland.

Good for him and even better for his mother. Those employees "caught" on tape should go to jail!

The use of hidden cameras or "Granny Cams" is legal in Virginia as long as you follow these regulations.

"I'D RATHER DIE THAN MOVE TO A NURSING HOME"

2011-11-29T10:41:00.004-05:00

I have heard family members make this very statement...usually after they have lost a loved father, mother, or sibling to outrageously poor care in a nursing home. It is a sad commentary on how the Long Term Care Industry in America operates.

I recently read an article which should give us all some hope. A movement is underway in California to improve this deplorable situation. A movement is underway to change the culture of nursing homes – to move from a sterile, hospital-like environment to a more home-like environment. In California, a coalition has been working with about 50 nursing homes to assist them in moving to a more resident-directed and resident-focused delivery of care.

The focus of the movement centers around:

1. Consistent Staff Assignments

2. Improved Dining Services

3. Reduced Noise

4. Aroma Therapy

5. Increased Activities

6. Improved Hygiene/Bath Time

Read the complete article here.

ASSISTED LIVING FACILITIES IN VIRGINIA

2011-11-28T15:33:00.006-05:00

Here is a pop quiz, about assisted living facilities in Virginia:

AN ASSISTED LIVING FACILITY IS SIMILAR TO,

which of the following (LEGALLY SPEAKING):

a. A college dorm room

b. A nursing home

c. A hospital

d. Home health

The answer is: A. No really.

assisted Living = College Dorm Room.

Under Virginia law, assisted living facilities are NOT Health care providers.

They do not owe you a duty to provide medical care. Or medicine. Or call your Doctor when you need help. Or get you an appointment.

They have a duty to provide you the services stated in your contract (meals, house keeping, etc) and nothing else.

For families who live out of town and have a loved one in an assisted living facility, please be aware of this very important fact. Assisted living is NOT HEALTH CARE. If your loved one needs health care, they may need to move.

Want to learn more about the differences between Assisted Living, Home Health and Nursing Home Services in Virginia?

This Month (December - but I am starting 2 days early) we are giving away our book A CONSUMERS GUIDE TO LONG TERM CARE IN VIRGINIA.

If you would like your free copy, call Mary Ann Spencer at 1-540-985-0098 to order it today. It is important to know these things as a caregiver, adult child or someone considering their long term care needs.

TEXAS LAX ON NURSING HOMES

2011-11-14T10:24:00.009-05:00

The title of a November 13, 2011 associated press article caught my eye - Report: Texas Lax on Nursing Home Rules."

The Dallas Morning News reported Saturday that Texas has all but stopped imposing the most severe penalties, such as revoking a home's license and government contracts, or seeking a court-appointed overseer for nursing homes in violation.

Texas has heavily reduced its enforcement of rules that govern the state's nursing homes, partly because of to budget cuts, legislative changes and inspectors being discouraged from citing bad conditions.

My Question to our readers: If the state (for whatever reason) is no longer enforcing safety rules for nursing homes and if the state has severely restricted the right of residents and family members to hold nursing homes accountable (tort reform)....just who is looking out for the most vulnerable people in our country?

I sure hope this problem does not make its way to Virginia.

SENIOR RESOURCES

2011-11-11T18:14:00.001-05:00

I know. Information is sometimes power.
People call our office all the time asking questions:

"Can the nursing home...?"
"Can the doctor....?"
"Do I have a right to....?"

Sometimes, I can answer these questions. sometimes, you need additional resources.

We were contacted by a gentlemen who writes a blog about aging wisely, and he has recently written a useful article with 40 good senior resources. Please, check it out. After all, information is sometimes all you need to make a bad situation, a better one.

HOSPITAL DELIRIUM: WHAT IS IT?

2011-11-04T09:16:00.003-04:00

Hospital delirium is a brain dysfunction characterized by sudden confusion and inattention. It’s one of the most common, dangerous and costly complications of hospital stays for the elderly.

A host of medications can upset brain function and trigger delirium by interfering with the neurotransmitters that communicate between nerve cells. The long list includes sedatives, sleeping pills, narcotic painkillers and some allergy, blood pressure and incontinence drugs.

According to an article in the New York Times written by Susan Seliger, Each year 20 percent of the 11.8 million elderly patients in hospitals develop delirium, including 60 percent to 85 percent of those in intensive care on ventilation and more than half of postoperative surgical patients.

Ms. Seliger recounts her own mother's experience with hospital delirium and provides 4 signs/symptoms of the condition. The article is a must read.

WHAT DO YOU THINK OF NURSING HOMES

2011-11-02T09:57:00.002-04:00

I was in a doctor's waiting room this week and overheard at least two separate conversations about local nursing homes.

One woman was sharing the story of her mother that had been in and out of at least 3 local nursing homes in the last few months.

A nurse told me that she worked at a local nursing home on the weekends and that she found the people and staff to be wonderful. I think she said she "really loved working there."

A third woman told a friend she used to work in a nursing home and it was so bad she wouldn't send a dog there.

Truthfully, we all have opinions, experiences and ideas about what good care is, what it looks like and what bad care is.

So what if your gut tells you a loved one is not getting great care. What do you do?
Here is my best advice:

1. ask for a meeting with the DON or administrator.
2. take notes.
3. follow up in writing on what was discussed.
4. be kind.
5. don't threaten a lawsuit. seriously. I mean this.
6. don't write nasty threatening letters. I mean this too.

If nothing changes, ask for another meeting and look for a new location.
1. ask your physician for his or her advice.
2. look around.

If you can't move someone because there are no other options, you have to be the advocate:
1. come by all hours
2. take notes
3. speak kindly to nurses when things are missed
4. ask to meet with the MD next time he or she is on site
5. call the local Agency on aging ombudsmen for advice
6. call 911 if you need to

There is nothing easy about this. Not for you, not for the patient or the staff.
Some nursing homes provide good care. Others don't. Do yourself a favor and don't just sit back and hope your loved one is in a good one.

DAN FRITH NAMED BEST MEDICAL MALPRACTICE ATTORNEY IN ROANOKE VIRGINIA

2011-10-31T11:12:00.003-04:00

I just bought my copy of the Roanoker Magazine today. Sadly, the online copy is not yet updated to reflect this year's BEST OF - but I am proud to say my law partner Dan Frith was named the Best Malpractice Attorney in Roanoke. Not one of the best, THE BEST.

Congratulations Dan. An honor well deserved.

DEBATE ON TELERADIOLOGY - DOES IT MATTER WHERE THE RADIOLOGIST IS?

2011-10-28T10:55:00.001-04:00

If you have spent more than 10 minutes in an emergency room in the last 4-5 years, chances are good you had an x-ray, CT or MRI taken in your local hospital, read by someone many thousands of miles away.

Tele-radiology technology allows radiologists sitting at computers all over the world, to read scans, interpret them and return reports without ever having spoken to a treating nurse, physician, seeing the patient, etc.

Is this good for medicine?
Good for patients?

There is a very vigorous debate going on about the positives and negatives of the practice - read more here.

A few of the arguments:

Saves money.
But radiologists have no context to contributing injury if they are not on site.
Radiologists without licenses are reviewing scans.
Quicker.
Only way to get quick reviews.
Better for patients.
Terrible for patients.

What do you think? Join the conversation.

TORT REFORM IN TEXAS: WHO WON?

2011-10-19T09:55:00.004-04:00

I hear all the time about the need for tort reform...especially in my field of law practice - representing the victims of medical malpractice. Friends and acquaintances say, "your lawsuits are driving up the cost of medical care and running the good doctors out of the profession."

My response - HOGWASH!

Most Americans are familiar with the very drastic tort reform measures enacted in Texas. In 2003, the Texas Legislature passed a law to reform the state's civil justice system. The bill addressed issues such as: limits on noneconomic damages; product liability reform; punitive damages; medical liability reform joint and several liability; and class action reform. Those who pushed for the reforms told the voters that, if passed, the new law would reduce the costs of medical care and keep all of the good doctors in Texas...and as a side-benefit the new law would put those greedy plaintiffs and their lawyers in there rightful place.

How did it work out for Texas? A recent study reported by Public Citizen indicates it did not work out very well.

The two groups that have benefited the most from the restrictions are liability insurance companies and physicians, Public Citizen found. Since the caps were imposed, doctors have been held less accountable for their errors. The number of payments made on behalf of Texas doctors to compensate patients for medical errors fell more than 50 percent between 2003 and 2010, and the value of those payments fell by nearly 65 percent, without adjusting for inflation. But insurance companies have cut doctors’ malpractice insurance premiums more slowly. Viewed in the contexts of starkly rising costs and diminished accessibility of care, these figures show that regular Texans have received nothing in exchange for ceding their legal rights.

FALSIFICATION OF NURSING HOME RECORDS

2011-09-28T16:41:00.002-04:00

Potential clients often assume I take everything at face value that is found in the medical record.

They even assume, sometimes, that records have been changed and that you cannot prove it.

GUESS WHAT..? Sometimes, you can prove it when records have been changed, falsified, etc.

Example 1 -

I had a case years ago where the medical records reflected (and I will never forget these dates) that Ms. Smith (no not her real name) was turned every two hours, fed, checked on and given medicine on Jan. 11, 12 and 13th at the nursing home.

How did we prove that was a falsified record?

Ms. Smith was actually at the hospital on Jan 11 and 12th and deceased by the 13th.

Example 2 -

A man, diabetic, pressure ulcers, hypertensive in the nursing home was diagnosed as a pressure ulcer risk. When I asked whether they evaluated him on admission, I was handed a two page pressure ulcer assessment. The assessment done by an LPN said that Mr. Smith (again, not his real name) had strong pedal pulses in his right and left foot.

How did we prove that was a falsified record?

The week before he was admitted to the nursing home Mr. Smith had his left foot and ankle amputated. Most likely he had no pedal pulse since he had no foot.

While I know that nurses get busy, and they sometimes chart before care is given etc., or without knowledge whether care was given, it is sometimes hard to prove that. We do however, look for the obvious issues and holes so that we can bring attention to the fact that nursing home records do not always reflect the actual care given to the patient.

And sometimes, just sometimes, we can find such terrible mistakes like the ones above, that we get to prove to the defendants, judge or jury that the records are NOT correct.

MEDICATION ERRORS

2011-09-26T08:40:00.002-04:00

Health care is sometimes a two way street.

What I mean by that is the following:

Doctors and nurses treat patients, advise on what to do, how to be, what not to do, etc. And sometimes, the health care providers make mistakes and harm results. And sometimes the patient makes mistakes and harm results.

We have handled many medication cases. Cases where pharmacies have given patients the wrong medication, or wrong dose. Cases where physicians have prescribed medications that either the patient had a known allergy to, or the medical literature suggested should not be prescribed. These are potential medical malpractice cases.

There are however, incidents where patients make mistakes. What kind of mistakes?
Here is a great blog on those kind of mistakes.

When you the patient makes the mistake, there is really nothing an attorney can do. So please,

Be careful.
Take care of yourself.
Be well.

ASK QUESTIONS: YOU WILL GET BETTER MEDICAL CARE

2011-09-21T06:38:00.002-04:00

Lauren and I talk with potential clients every week and, unfortunately, it is clear to us many patients fail to ask their doctors some very important questions before deciding on a treatment plan.

We are all "consumers" of health care and, as such, we need to be as knowledgeable as possible, and unafraid to ask questions before medical decisions about treatment are made.

Questions like:

1. What is my diagnosis...in terms I can understand?

2. What tests are needed? What are the risks of those tests? How will the results determine my treatment plan?

3. Why are you prescribing this medication? What are the side-effects? Does this drug interact with other medications I am currently taking? Are there life-style or diet changes which would have the same effect as taking the drug?

4. Why do I need surgery? What happens if I do not have surgery? What are the risks of surgery in general and what complications have you specifically encountered in performing this surgery?

5. Do you mind if I get a second opinion? This is really not a question...it is a must do if your doctor is recommending treatments the complications of which can seriously alter or even end your life.

My Take: If your doctor doesn't have the time or is not willing to answer these important questions - FIND ANOTHER DOCTOR.

For additional reading on this topic, please see the article, "Questions for Better Care" appearing in today's Wall Street Journal

SURGICAL MISTAKES

2011-09-20T09:33:00.002-04:00

bowel perforation.

sepsis.

leak.

adhesions.

open repair.

follow up surgery.

fever.

infection.

complication.

We see these words a great deal in surgical cases.

Typically, someone goes in for a non-emergency surgery such as a colonoscopy, hernia repair, removal of a cyst, gallbladder, appendix, etc.. and during the surgery or procedure, the colon or bowel is nicked, cut, sliced, or perforated. The perforation may or may not be noticed during the surgery/ procedure and it if is not noticed intraopertively, the surgeon will sew the patient back up and place them in recovery.

Having bowel contents leaking out into your abdominal cavity, near your organs, tissue, etc., causes pretty significant problems however.

First and foremost, infection, pain, vomiting, fever. Then, if not properly diagnosed and repaired, the leak, the perf., can wreak havoc. Death, sepsis, organ failure, other really bad things.

Some times, it is NOT negligence when a perf. occurs. Sometimes surgeons realize it has occurred and repair immediately.

Sometimes however, perforations are actionable.

If you have a surgical mistake case in Virginia and would like our office to review and investigate whether it is malpractice, call us today.

ANTIPSYCHOTIC DRUGS IN NURSING HOMES

2011-09-15T16:19:00.003-04:00

Did anyone read the Associated Press article in today's issue of the Roanoke Times? The article, "Push is Under Way to Reduce Drugs for Dementia Patients," tells a very sad...but very common story.

The story reports how antipsychotic medications (examples include Haldol, Serenace, Zyprexa, Clozaril, etc.) are meant to help control hallucinations, delusions, and other abnormal behavior in people suffering from schizophrenia and bipolar disorder. The problem occurs when nursing homes give antipsychotics to "hundreds of thousands of elderly nursing home patients" to pacify their behavior. This is a nice way of saying antipsychotics are given to residents to limit their ability to communicate, socialize, or participate in everyday life.

Why you may ask? Because it is easier (read cheaper) to care for a resident who just lies in his/her bed all day long and makes few demands upon the nursing staff. This reduced level of care allows the nursing home to hire maybe 2 fewer nurses per shift. At three shifts per day and 365 days per year it can add up to some additional profit.

My Take: If your family member is placed on antipsychotics make sure there is a documented reason for the medication. Also do your own research and make sure the dosage level is appropriate and starts out on the low end. No one wants their loved one turned into a "zombie" just so the nursing home can put a few more dollars in their pockets at the end of the year.

CAREGIVING IN VIRGINIA - MEMORY LOSS ETC.

2011-09-13T11:34:00.002-04:00

What do you families do when their loved one has memory loss?

They can arrange for in home care - maybe provide it themselves

They can look for memory loss assisted living care

They can search for nursing homes that can provide for their loved ones - safety and medical needs

They can worry, do their best and even then, bad things happen.

I read an article in our local Roanoke Virginia paper today that states over 5.4 million Americans have Alzheimer's or similar dementia. By 2050, the number could be over 13 million.

So what options do the millions of families have?

- Let Medicaid pay for Nursing home care and hope they are equipped to care for someone with memory loss, etc.
- Pay for home health at $20 - $25 an hour?
- quit their own jobs and try to provide care at home?
- find an assisted living facility and pay privately for memory unit care?

Not alot of great options. And sadly, terrible accidents and acts of negligence happen. Residents with memory problems fall, they get injured, they elope, they hurt themselves.

I don't envy families having to deal with this most emotional and difficult stage in life. If we can help evaluate whether your loved one who suffers from memory loss has been the victim of medical neglect, let us know.

REFUSED TREATMENT

2011-09-09T10:32:00.002-04:00

Citizens frequently call our office complaining that their doctor refused to treat them any longer.

"He can't do that, can he?" they often ask.
"I have been going there for years and all of a sudden I got a dear john letter.. or a we can't treat you any more letter. Isn't that against the law?"

Today's Roanoke Times had an article about a local pediatric practice that is refusing to treat children whose parents have refused vaccinations.

When asked why the practice had made the decision, one physician explained:

"We are doing this for two reasons. First, we want to protect our patients," said Dr. Robert Gard, one of the practice's physicians. "And also to let people know in the community as a whole how important this is and that it is a danger to our community not to vaccinate our children."

Can they do this?
Can a nursing home ask a patient to leave?
Can a home health agency stop service for non-compliance?

YES. YES to all of the above.
While it is unethical (and can lead to civil lawsuit) to abandon a patient who you know has no other access to care and treatment, there is nothing illegal about a health care provider ending a relationship or refusing to provide care.

Its like any business.

If you don't play by the rules - they can end the business relationship.

NURSING HOME HIT WITH $740,000 FINE

2011-09-05T09:32:00.008-04:00

It should have been more....

The U.S. Centers for Medicare & Medicaid Services has fined a Tennessee nursing home nearly $740,000 over findings detailed in a state inspection.

The inspection report by the Tennessee Department of Health lists a number of minor infractions and five serious ones at Spring Meadows Health Care Center in Clarksville, Tennessee. The most significant infraction was lack of supervision and other precautions that led to a resident repeatedly suffering serious injuries from falls.

The investigation revealed instances of verbal and physical abuse perpetrated by residents who were not properly handled by the staff. The report also described an incident where a resident was transferred to a different room when she complained that the staff would not not give her neighbor a bath or change the neighbor’s clothing. The resident was asked why she did not refuse the transfer and the resident responded, "They told me if I opened my mouth, I would be disciplined."

My Take: These incidents of bad and abusive care are not the result of some rogue employee...they are the result of corporate greed which places profit over people. I wish criminal charges had been filed against the owners and operators of the facility.

FAILURE TO DIAGNOSE

2011-08-30T12:13:00.001-04:00

This happens more frequently than you would realize.

Patient, we will call him Sam, has stomach pains. Goes to his PCP. PCP says "I think it is gas, or something not to worry about, call back if you still hurt in 3 weeks."

Week 2 - patient is in such exteme pain, he goes to the ER. ER doc says "I think you have gas, take this medication and if it doesn't work, call me back or go see your PCP."

Week 4 - Sam is still in so much pain, goes to a different ER, and the doctor runs a CT and sees that Sam's Appendix has ruptured - gets same into surgery right away... SAM IS FINE.

Doesn't Sam have a Malpractice Claim against his PCP and the first ER doc?

Well. Maybe.

But would I recommend you file that case?

No way.

Why Not?

Thank God, Sam recovered and the failure to diagnose did not make Sam any worse off, than had it been diagnosed originally - but for his 4 extra weeks of pain and worry.

So what would I do in this situation?

Maybe let the PCP know what happened, so in the future he or she can recognize signs and symptoms...

But filing suit would be expensive, and very time consuming... and I doubt a jury will award a ton of damages for 4 weeks of stomach pain.

FAIR? Maybe not.

But our job is to evaluate cases and recommend whether or not it is worth a family's time and energy. I am glad Sam is ok. But I wouldn't recommend he file a lawsuit.

WHAT TO DO WHEN A DOCTOR / HOSPITAL...

2011-08-26T11:10:00.003-04:00

Medical Malpractice lawsuits are appropriate for someone who has suffered the following:

1. Medical negligence (mistake wherein the provider failed to meet the standard of care)
2. That directly caused an injury
3. The injury is signficant or permanent and
4. Because of the injury, you lost significant money (lost wages, medical bills etc.)

Medical Malpractice lawsuits are not appropriate in the following circumstances:

1. A doctor was mean or unkind
2. A mistake was made, discovered and easily corrected
3. A healthcare provider was rude or thoughtless
4. Your family suffered emotional harm because of a healthcare provider's carelessness, mistake etc., rudeness, etc.

If any of the above (rudeness, unkindness, easily corrected mistake) occurred, you could always:

1. Call and ask to speak with someone about the issue / event
2. File a formal complaint
3. Let the health care provider know, in a kind, gracious and articulate way that you were hurt, disappointed, harmed, etc.

I would not recommend sending RUDE LETTERS - STERN LETTERS - ANY KIND OF LETTER expressing your anger

So while you may not have a medical malpractice case, that does not mean you are without recourse.. or options.

But please use your head. Threatening letters rarely get you anywhere whereas kind, thoughtful communications expressing your concern are often very effective at bringing change.

CONFIDENTIAL SETTLEMENTS

2011-08-16T15:33:00.002-04:00

This year, in 2011, our firm settled numerous cases that we cannot tell you about.

We cannot tell you about the acts of negligence, the injuries that were caused, the amounts of the settlements or the details of our lawsuits because we agreed not to.

Some clients will agree to confidential settlements because they don't want to harm the reputation of their local doctor, hospital, etc. Or, they may decide they don't want their neighbors to know about their injury, or potential recovery.

When you visit our website and read about our recent cases, those are just the few we can tell you about. In the last 5 years, we have handled the following kinds of medical malpractice cases:

Surgical mistakes
Diagnosis mistakes
Medical Device negligence
Wrong diagnosis
Failure to act which leads to loss of limbs, life, etc.
Medication errors
Emergency room errors
Failure to communicate diagnosis to patient
Unnecessary surgeries
Falls and wounds occurring under hospital supervision

Let us know if we can help you evaluate your Virginia Medical Malpractice Case today.

COST OF LITIGATION EXCEEDS RECOVERY

2011-08-12T09:25:00.003-04:00

That is lawyer speak for:

"technically, you may have a case but I don't think it is worth my time, or your time, to spend two years on it when you are not going to get much of money."

Example:

Broken Bone case - eventually heals, $7,000 in medical bills and $3000 in lost wages

Total damages: $10,000

No permanent injury

Jury award will be between $10,000 and $75,000

Total Cost of experts: $10,000

Attorneys fees: 40%

Copy Costs after 2 years: $2000

Court reporters: $4000

Total costs to litigate case --- may be GREATER THAN your damages or potential for recovery

So why spend two years in court to lose money?

For the principle of it?

To make a point?

I wouldn't recommend any activity that takes two years, just to make a point!

TOO MANY ANGIOPLASTIES

2011-08-05T08:24:00.005-04:00

Most people have heard of a "coronary angioplasty", or just angioplasty for short. Maybe you or someone in your family or a neighbor has submitted to the procedure. An angioplasty is a medical procedure used to open blocked or narrowed coronary (heart) arteries, to to improve blood flow to the heart muscle. But, have you heard the latest news about this procedure?

Outside of heart attacks, doctors are often too quick to use a common $20,000 procedure to treat patients suffering from coronary artery disease.

These are not my words describing the prelevance of this medical procedure but the conclusion reached by the Wall Street Journal after reviewing the results of a study published in the Journal of the American Medical Association (JAMA) in July. In the study, the cardiologist who was the lead author of the study concluded:

The procedure was "inappropriate" for one out of every eight patients who submitted to the angioplasty.

Why is this significant? Lets do the math. Somewhere between 600,000 and 1 million angioplasties are performed in the U.S. every year. If one out of every 8 angioplasties (12%) were "inappropriate" then somewhere between 75,000 and 125,000 patients received an inappropriate procedure.

Why should you care? Angioplasties are not risk free medical procedures...they can lead to death. The recognized complications from an angioplasty include:

* Serious bleeding
* Heart or lung problems, including:
* Irregular heart rhythms
* Lung or heart failure
* Stroke
* Heart attack
* Artery reclosure
* Blood vessel, nerve, or organ damage
* Blood clots
* Failure of medical equipment

My Take: If you are diagnosed with limited coronary blockage with mild or no cardiac symptoms and your doctor recommends a coronary angioplasty....get a second opinion.

IS YOUR LOCAL EMERGENCY ROOM FAST?

2011-08-04T14:06:00.006-04:00

In my city we have two hospitals: Carilion Roanoke Memorial Hospital and Lewis Gale Medical Center, a HCA facility.

Lewis Gale Medical Center (LGMC) has purchased bill boards (that's right bill boards along the side of the road) which tells motorists the "wait time" at their hospital emergency department. I guess that you will remember the "wait time" if you happen to be in an automobile accident just after passing the bill board. LGMC is so proud of its speediness it has even published its new policy on the Internet:

Patients visiting the emergency room at any of the four regional HCA Virginia hospitals (Lewis-Gale Medical Center, Alleghany Regional Hospital, Montgomery Regional Hospital, and Pulaski Community Hospital) no longer need to guess how long they’ll wait before receiving care. Now they can find out in advance, thanks to a new program that publicizes each hospital’s average wait times via text messaging, electronic banner ads and the Internet.

Even the Wall Street Journal has reported on this new trend in health care marketing.

My Question: Why aren't hospitals advertising the great care they are providing their patients instead and does anyone think the push for "speediness" could result in more poor care?

MEDICARE AND NURSING HOMES - ODD BED FELLOWS

2011-08-03T13:35:00.003-04:00

An Article in B4 of Today's Wall Street Journal starts off by saying that various nursing home companies are aiming to cut expenses "to help offset the impact of a severe Medicare reimbursement cut coming in two months."

Business Week says that for profit nursing homes saw their shares tank on Monday due to the same announcement.

Kaiser Health reported that the cuts were necessary because Medicare made unexpected payments under a new classification system.

Ok. That is alot of information.

For starters, it does appear Medicare has announced they will not pay nursing homes what they thought they would/could.

Why?

Because nursing homes were charging them more than they expected to pay and they ran out of money. Sort of.

So now the nursing homes are cutting costs and their stock is plummeting.

And the nursing homes are angry, and shocked. And surprised.

That Medicare couldn't increase their payments.

Wow. My head hurts. But here is my worry: If nursing homes, for profit ones are cutting costs - what are they cutting?CEO pay? Or number of Nurses?
Benefits for top executives? Or the number of CNAs on the floor?
And why isn't Medicare able to pay as planned? Oh, because they already gave the money to nursing homes. So why again are the nursing homes having to make drastic cuts?

HOSPITALS AND FEAR OF FLYING

2011-07-27T10:02:00.002-04:00

Yes, although it seems these two things are very different....they are connected.

How? Because your chances of dying in a hospital due to medical negligence is greater than your chance of going down in a plane crash.

In a recent news briefing, the World Health Organization's (WHO) newly appointed envoy for patient safety Liam Donaldson pointed out that the chance of dying in a plane crash is about 1 in 10 million, but some 1 in 10 patients encounter medical errors at the hospital. The chances of dying from a medical error in the hospital are about 1 in 300.

My Take: I acknowledge the underlying statistics for the WHO's briefing come from hospitals all over the world but...I don't think patient safety in American hospitals is dramatically better than in any other developed country...and some recent commentators suggest it is less so.

CAREGIVERS NEED HELP TOO

2011-07-26T12:48:00.002-04:00

Sadly, much of the time families come to us when it is too late.

Too late to discuss what nursing home is best.

Too late to describe the importance of attending care plan meetings or meeting with the nursing home doctors.

Too late to make decisions about home health care until the option is no longer available.

And we wanted to do something to help provide basic information to possible care givers, before it was too late. So we wrote a book called A CONSUMER'S GUIDE TO LONG TERM CARE IN VIRGINIA.

And while you can call our office and request a copy for $9, you can download the book RIGHT NOW from Amazon.com.

Want to know what questions to ask when assessing long term care insurance?

Want to know the differences between non profit and for profit care?

Want to plan your finances such that your savings doesn't all end up paying for assisted living?

Request your copy today.

NORTH CAROLINA CAP ON MALPRACTICE DAMAGES

2011-07-26T12:21:00.004-04:00

Often we will get calls from Virginia residents who received medical treatment in North Carolina. We always advise they call a North Carolina attorney to get advice as the state laws are different.

In Virginia, you have two years to file a malpractice action and can legally get up to $2,000,000.00 for your pain and suffering, lost wages etc. Sometimes this amount will make a person "whole" legally speaking, and sometimes it is insufficient.

Starting this month in North Carolina, individuals are entitled to their blackboard damages (meaning, what their actual and future medical bills, lost wages, and other calculable damages are) but there will now be a $500,000 cap on non-economic damages.

That means, you lose the ability to walk, drive, experience the joy of human touch, the ability to hold a child, care for a grandchild, your pain and suffering cannot be compensated beyond $500,000.

If I put an ad in the paper that said - "apply. $500000 one time fee for anyone willing to lose their ability to walk, use the bathroom, hold a child, be independent," do you think anyone would apply?

I doubt it.

I think it is a sad development in North Carolina law. One no doubt that will bring its share of unintended consequences.

WHAT IS THE BEERS LIST?

2011-07-22T09:28:00.005-04:00

No...it is not a list of the most popular adult beverages.

In 1991, a panel of doctors and clinicians with expertise in geriatrics researched the effects of different drugs on senior citizens. Their research resulted in the creation of the Beers List. A list of medications that are generally considered inappropriate when given to elderly people. For a wide variety of individual reasons, the medications listed tend to cause side effects in the elderly due to the physiologic changes of aging.

The list (revised in 2003) includes Xanax, Elavil, Tagamet, Flexeril, Valium, Benadryl,
Estrogens, Prozac, Vistaril, Toradol, Ativan, Demerol, Naprosyn, Avaprox, Aleve, and many, many more. You may view the complete Beers List here.

My Take: If your loved one has been prescribed any of these medications...talk to the doctor. Make certain there is a good reason for taking the prescribed drug. Determine what alternatives, if any, exist. Finally, watch your family member like a hawk and make sure they don't suffer from the side effects which can be caused by these medications.

BLACK AMERICANS SUFFER MORE PRESSUE SORES IN NURSING HOMES

2011-07-21T07:03:00.000-04:00

My question is "why?"

According to the findings of a new study published in the Journal of the American Medical Association(JAMA), elderly African Americans face a greater risk of suffering bedsores or pressure ulcers as a result of nursing home neglect.

The researchers, from the University of Iowa, found that from 2003 to 2008 African Americans were at a significantly increased risk of suffering from pressure sores or decubitus ulcers as compared to white residents. For example, in 2003, the pressure ulcer rate was 16.8% for black nursing home residents compared with 11.4% for white residents; in 2008, the rate was 14.6% compared with 9.6%.

In my opinion no resident (black,white, or brown) should have pressure sores. But my question remains, why do African Americans suffer more pressure sores and ulcers?

AMERICA'S BEST HOSPITALS

2011-07-20T10:01:00.002-04:00

U.S. News and World Report has just published its list of the best hospitals in America.

A place on the Best Hospitals Honor Roll is reserved for medical centers that demonstrate unusually high expertise across multiple specialties, scoring at or near the top in at least six of 16 specialties. Just 17 of the nearly 5,000 hospitals evaluated for the 2011-12 rankings qualified. The list follows:

1. Johns Hopkins Hospital, Baltimore

2. Massachusetts General Hospital, Boston

3. Mayo Clinic, Rochester, Minn.

4. Cleveland Clinic

5. Ronald Reagan UCLA Medical Center, Los Angeles

6. New York-Presbyterian University Hospital of Columbia and Cornell, N.Y.

7. UCSF Medical Center, San Francisco

8. Brigham and Women's Hospital, Boston

9. Duke University Medical Center, Durham, N.C.

10. Hospital of the University of Pennsylvania, Philadelphia

11. Barnes-Jewish Hospital/Washington University, St. Louis

12. UPMC-University of Pittsburgh Medical Center

13. University of Washington Medical Center, Seattle

14. University of Michigan Hospitals and Health Centers, Ann Arbor

15. Vanderbilt University Medical Center, Nashville

16. Mount Sinai Medical Center, New York

17. Stanford Hospital and Clinics, Stanford, Calif.

I live in Virginia and...unfortunately, not one Virginia hospital made the list.

EBOOK ON CARE-GIVING / LONG TERM CARE CHOICES

2011-07-20T09:59:00.002-04:00

Caregiving is hard.
Making choices about long term care is not easy.
Making educated choices about long term care requires time and thoughtfulness.

Dan and I realize too often, families are forced to make these decisions without any time to prepare and consider their options. But that isn't good enough. Virginians should know about their rights, and their options.

A Consumer's Guide to Long Term Care in Virginia was written to help you - the family member who wants to be proactive and informed.

This week, an EBook version will be available instantly on Amazon.com. Stay tuned. As your need for information becomes pressing, we want to make sure resources are available.

NO SURPRISE HERE - CAREGIVING IS TOUGH WORK

2011-07-18T11:31:00.002-04:00

I heard a wonderful but not surprising story on NPR this morning -

CAREGIVING IS TOUGH WORK and worth over $450,000,000 a year.

And what do you do when you need professional help? A nursing home? Assisted Living?

Dan and I have found so many of our clients are ill prepared for this stage in life. That is why we wrote a book - a CONSUMER'S GUIDE TO LONG TERM CARE IN VIRGINIA.

Need some basic information for this difficult period?
Order your copy today online or by calling Mary Ann in our office, 540-985-0098

CRIMINAL CHARGES IN VIRGINIA: WHAT IS A KENNEDY TERMINAL ULCER?

2011-07-14T09:20:00.004-04:00

The DailyPress.Com reports a felony abuse charge leveled at a Gloucester man accused of failing to care for his ailing aunt was dismissed Tuesday in Glouster, Virginia. Following nearly seven hours of testimony and argument, the trial judge dismissed a charge of abuse involving the incapacitation of an adult causing injury against Erick Wilson.

The case arose after the death of Regina Wynn, Wilson's 87-year-old aunt, who died in September after being brought to a Richmond, Virginia hospital with dinner-plate-sized sores, respiratory infection and severe dehydration.

Apparently, the dismissal of the abuse charge hinged on the testimony of Joy Schank, a nurse practitioner and wound specialist from Himrod, N.Y., who was paid $2,500 for her testimony. Schank testified that the bone-deep bedsores found on Wynn's body were in fact something called a Kennedy Terminal Ulcer, a condition where near the end of a patient's life the skin begins to unavoidably deteriorate.

We have faced the Kennedy Terminal Ulcer Defense before in our nursing home abuse cases....even deposed Nurse Kennedy herself. In our opinion the Kennedy Terminal Ulcer defense is a fraud. The argument goes like this: "If you have an ulcer or pressure sore and die as a result of complications from the ulcer/pressure sore then the ulcer was a Kennedy Terminal Ulcer and the patient was doomed to die quickly regardless of the poor care he/she received. If the patient survives the ulcer then it was not a Kennedy Terminal Ulcer... but you cannot diagnose whether the ulcer/sore is a Kennedy Terminal Ulcer until you wait to see if the patient dies.

Many nursing homes use the Kennedy Terminal Ulcer Defense in supporting their argument that there was nothing they could have done for the patient because he/she was doomed to die because they suffered from a terminal ulcer.

My Take: Just think about the illogical argument underlying this defense....it's shameful.

YES YOU HAVE A CASE - BUT DON'T FILE IT

2011-07-01T12:51:00.003-04:00

If you call our office, to inquire as to whether you have a malpractice case, one of 4 things will likely happen:

1. We tell you that you do not have a case.
2. We tell you that you do have a case and we begin an investigation.
3. We tell you that you have a case but shouldn't pursue it.
4. We give you the name of a lawyer who does handle that kind of case.

YES - sometimes (see number 3) we tell folks "YOU HAVE A MEDICAL MALPRACTICE CASE BUT WE WOULD NOT ENCOURAGE YOU TO FILE IT."
Basically, we say - Let it go. Move on. We are sorry but don't waste your time.

Why would we do that when we are in the business of filing these cases?

Because sometimes the costs of litigation (experts, Medicare lien, Medicaid lien, time, etc.) would outweigh any potential recovery.

Yes, I mean it is not worth your time (1-2 years), your money to pay experts ($20,000 - $40,000) and governmental liens - to recover a few bucks.

Example. Case is worth $30,000
Attorneys fees - 40%
Experts - $10,000
Ct. Reporters - $5,000
1-2 years of your life

Is that really worth $3,000 to you? The Ct. Reporters would actually make more on your case than you did.

I didn't think it is worth it. That is why we often tell folks - "yes, you were likely the victim of malpractice but we would recommend you not pursue it."

Crazy talk from a plaintiff's attorney but we have found few clients enjoy spending years in litigation if there is very little recovery at the end.

CARE PLAN MEETINGS

2011-06-27T13:48:00.003-04:00

A Care plan meeting at a nursing home is really the adult version of a parent teacher conference.

Required by federal law to occur quarterly, Care Plan meetings involve department chairs and often, family members, those holding powers of attorney, are invited to take place in this brief but important HEALTH CARE STATUS UPDATE.

They occur during the work day, and for those of us caregivers that also work full time, it is difficult to make time. But I encourage you to try - ask if it can be done by conference call, or during a date and time when you are available. If you are not free, perhaps someone else will be able to attend as the family's eyes and ears.

Often folks call our office shocked, and amazed that their loved one deteriorated so quickly in a nursing home. One day Mom looked fine, the next day she had died...

Care Plan meetings can help fill in the blanks of the small details not always noticeable, or discussed by staff:
- weight loss
- wound development
- ambulation / therapy issues
- cognitive changes / medication changes

I would recommend trying to attend if you can. If not, ask if you can attend by phone or reschedule for a time when someone is free. My hope is the more of these meetings families attend, the less likely they will need my help.

HIPAA Violation ---

2011-06-22T11:17:00.001-04:00

This is straight from the Virginia Pilot -

"A Suffolk psychiatrist was indicted by a federal grand jury Tuesday for releasing personal medical information protected by federal privacy laws.
Dr. Richard Kaye, 62, was medical director of the psychiatric unit at Sentara Obici Hospital in Suffolk when he provided care for two weeks in 2007 to a mental health patient, according to the indictment from the United States Attorney of the Eastern District of Virginia in Norfolk. In February of 2008, he released personal health information to an agent of the patient’s employer.
If convicted, he faces a maximum of five years in prison.
According to the indictment, he indicated in discharge papers in 2007 that the patient was not of danger to self or others. But on three occasions in February of 2008 he made the unauthorized disclosure under “false pretenses” that the patient was a serious and imminent threat to the safety of the public, when in fact he knew that the patient was not such a threat.
Kaye's attorney, Lawrence Woodward, said his client will be pleading not guilty to the charges. An arraignment is scheduled for July 13.
Violations of the federal privacy act known as the Health Insurance Portability and Accountability Act are usually misdemeanors, but when made under false pretenses they can rise to a felony.
A voice mail on a phone listed as Kaye's Suffolk office said his practice has been closed and he is no longer accepting patients. Kaye is a doctor of osteopathy and is board certified in psychiatry, according to Virginia Board of Medicine documents. The Board of Medicine investigated the same incident and issued a reprimand to Kaye in May of 2010. He was fined $5,000 and and put on probation until he completed eight hours of medical education on the subject of professional ethics.
He complied with the order, and his license was restored in October of 2010."

Folks ask us all the time if they can "sue a doctor, nurse" for letting their private health information be made public... And I tell them, not really. You do have the right to file both civil and criminal claims, but you don't get damages really. No amount of money as an apology.

This is the first time I have ever seen someone criminally prosecuted in Virginia. Not sure how I feel about it... But wanted to share none the less.

WRONG SITE SURGERY: BACK IN THE NEWS

2011-06-22T06:03:00.000-04:00

You have probably read a story in your local newspaper about a medical malpractice lawsuit where the patient's doctor operated on the wrong leg...the wrong arm...the wrong level of the spine, even the wrong patient.

To address this preventable problem, the Joint Commission, the national organization which accredits the nation’s hospitals issued guidelines back in 1998.

And how are American hospitals and doctors doing in reducing wrong site surgery? Not very good...I would give them a "C-" if I had to grade their efforts.

Some researchers and patient safety experts say the problem of wrong-site surgery has not improved and may be getting worse. Joint Commission officials estimate that wrong-site surgery occurs 40 times a week in U.S. hospitals and clinics. Last year 93 cases were reported to the accrediting organization, compared with 49 in 2004.

Reporting to the commission is voluntary and confidential — to encourage doctors and hospitals to come forward and to make improvements, officials say. About half the states, including Virginia (my home state), do not require reporting.

My Take: There has been little improvement in the rates of wrong-site surgery and this reality is unacceptable.

A MUST READ for CAREGIVERS, part II

2011-06-20T10:50:00.003-04:00

I have finished the book - a BITTERSWEET SEASON, Caring for our Aging Parents and Ourselves. I have carried it everywhere with me the last few weeks, trying to squeeze in a few minutes here and there.

It is so very well done and insightful.

And it is also so very honest.

There is no rosy picture of bridge games and shuffle board associated with the author's tale of caregiving. She does not state what a wonderful privilege it was to watch her mother's health deteriorate nor does she romanticize the difficulty in relying on "the system" of long term care to provide 24 hour care to her mother.

She shares the emptying effect of this season on all involved, and yet, manages to see a few moments of laughter and joy. That is why it is such a great book and a must read for anyone in their 40's-50's who have parents now living, who will likely live for another 10 plus years.

So before you need to call our office because you suspect a mistake, neglect, or something worse, go buy this book. Read it. Share it with friends in the same boat and perhaps, the more we all know as a community about long term care, the less likely my services will be needed in the long run.

VIRGINIA COALITION FOR THE PREVENTION OF ELDER ABUSE

2011-06-17T12:09:00.003-04:00

I want to share with our readers an experience I had a couple of weeks ago. I attended (and made a presentation at) the 17th annual meeting of the Virginia Coalition for the Prevention of Elder Abuse in Virginia Beach, Virginia.

I was blown away by the numbers of nurses, Ombudsmen, Adult Protective Service workers, Social Services workers, and just interested family members in attendance. The meeting included presentations on:

Guardianship Issues

Domestic Abuse

Stalking and Sexual Assault

The Seven Deadly Sins of Nursing Homes (my topic)

Foster Care

Older Adults and Mental Illness, and many more topics

My Recommendation: If it is important to you to assure that elderly and disabled adults in Virginia live a life free of abuse, neglect and exploitation, then join the Virginia Coalition for the Prevention of Elder Abuse and attend one of their great conferences.

ANTI-PSYCHOTIC DRUGS IN NURSING HOMES - SCARY STUFF!

2011-06-16T10:32:00.005-04:00

Federal investigators have found that many elderly nursing home residents with dementia are prescribed antipsychotic drugs (like Seroquel, Risperdal, and Zyprexa) despite the increased risk of death that these medications pose.

According to a report released last month by the Department of Health and Human Services (HHS) Office of the Inspector General (OIG), 88 percent of reimbursement claims submitted to Medicare for antipsychotic drugs prescribed for nursing home residents during a six-month review period (January to June 2007) were for residents diagnosed with dementia. These drugs carry a black box warning stating that they pose an increased risk of death in elderly patients with that condition.

“Government, taxpayers, nursing home residents, as well as their families and caregivers should be outraged—and seek solutions,” HHS Inspector General Daniel Levinson said in a statement following the release of the report. “It is of great concern that so many nursing home residents are prescribed these drugs in the first place.”

My Take: We see nursing home residents placed on these dangerous medications in many of the nursing homes in Central and Southwest Virginia. Families and Residents beware!

SO YOUR PARENTS NEED CARE --- WHO, HOW, WILL YOU PROVIDE?

2011-06-14T12:07:00.004-04:00

Are you a caregiver...? Of any kind?
Visit a loved one a nursing home?
Provide for assistance with activity of daily living?
Pay bills, write checks, etc?

Do you work full time? Are you raising your own kids?
How does this balance work? Are you empty? Exhausted? Is it necessary that you be the provider?

Most of us who help serve in this role will tell you - yes, "family can do it better." You will also hear it is our job to provide care, our duty, out of love.

And I am not writing to argue otherwise. In fact, I am not writing to analyze or question why we serve or provide care at all.

I am writing to simply make an observation. Needed or not. Good or not. Necessary or not. If you are a caregiver of any kind to a parent, that process will affect you in some way.

Statistically speaking - this is how it can / will affect you: http://www.metlife.com/assets/cao/mmi/publications/mmi-pressroom/2011/mmi-caregiving-costs-working-caregivers-pr.pdf

The Met Life Study on Caregiving Costs found that:

Adult children age 50+ who work and provide care to a parent are more
likely than those who do not provide care, to report that their health is fair
or poor.

The percentage of adult children providing personal care
and/or financial assistance to a parent has more than tripled over the past 15
years and currently represents a quarter of adult children, mainly Baby Boomers.
Working and non-working adult children are almost equally likely to provide care
to parents in need.

Overall, caregiving sons and daughters provide
comparable care in many respects, but daughters are more likely to provide basic
care (i.e., help with dressing, feeding and bathing) and sons are more likely to
provide financial assistance defined as providing $500 or more within the past
two years. Twenty-eight percent of women provide basic care, compared with 17%
of men.

For women, the total individual amount of lost wages due to leaving
the labor force early because of caregiving responsibilities equals $142,693.
The estimated impact of caregiving on lost Social Security benefits is $131,351.
A very conservative estimated impact on pensions is approximately $50,000. Thus,
in total, the cost impact of caregiving on the individual female caregiver in
terms of lost wages and Social Security benefits equals $324,044.

For men, the total individual amount of lost wages due to leaving the labor force early because of caregiving responsibilities equals $89,107. The estimated impact of
caregiving on lost Social Security benefits is $144,609. Adding in a
conservative estimate of the impact on pensions at $50,000, the total impact
equals $283,716 for men, or an average of $303,880 for male or female caregivers
age 50+ who care for a parent. "

Amazing statistics, and not surprising. It is not an easy job and I wish those of you who do it, many blessings and perhaps I challenge all of us to find a way to make this very important stage in family life, less harmful for those willing to do it.

TOUR GUIDE TO ELDERCARE

2011-06-13T08:02:00.002-04:00

When I looked at Colleges, I often attended formal tours where a student tour guide walked us around and explained various aspect of campus life, etc.

When we hired a paralegal last year, we walked her around our office and explained how things worked, where her office would be, etc.

When you go to a museum, you are often offered the opportunity to learn about the art from someone who knows great detail about the artists, exhibits etc.

But what happens in emergency situations? Do you get to take tours of hospitals, attorney offices, nursing homes and emergency rooms years before your loved one is stuck in the cycle of requiring long term care? Do you get to look, examine chose which doctors, surgeons, hospitals or facilities you will use months before the services are necessary?

YES and NO.

If you showed up to a local hospital today and told the receptionist you are here for the tour, I imagine they would be tempted to call security. A nursing home would likely be delighted to show you around and an assisted living facility probably has an open house already on their calender. So some levels of long term care, are really open for examination. But so few people take advantage and make decisions before the care is immediately required.

The sad truth however, is that it is most difficult to make these very difficult decisions on the fly, when you find yourself or your family in an emergency situation (ie - hospital discharge or post surgery).

You have little time, limited choices and often, little understanding of the impact certain choices can have.

Our advice is PLAN AHEAD.

You can request a copy of our free book - A CONSUMER'S GUIDE TO LONG TERM CARE IN VIRGINIA, or go to the book store today and pick up resources that help provide baseline of information.

You wouldn't go to a restaurant without asking what kind of food they serve - so why make long term care decisions without getting information first.

And let me know if you find a hospital that gives tours. I would love to join you for one.

A BITTER SWEET SEASON - Part II

2011-06-10T07:06:00.003-04:00

Earlier this week I wrote about a wonderful resource, a newly published book I was reading called A Bittersweet Season - Caring for Our Aging Parents and Ourselves, by Jane Gross.

Gross wrote a book on caregiving and navigating the system of healthcare, related legal issues, etc., because she and her brother were forced into the process (caring for an ailing parent) without help, and without any guiding resources.

Exposing her own mistakes and blunders as an example of what not to do, trust or assume, she exposes the myths of long term care industry and gives practical advice to families who find themselves in this Bittersweet Season.

In Chapter 2, The Myth of Assisted Living, she points out the following:

"We assume, incorrectly, that a good assisted living facility will relieve us of day to day labor and responsibility"
"Understand first and foremost, that Medicare and Medicaid do not pay for room and board because assisted living is a provider not of health care but of housing."

She goes to explain in some detail, her own mistakes and incorrect assumptions about the care available to her mother in a local assisted living facility. She also takes time to give very practical advice, such as the importance of having a primary care physician aware of your loved ones needs, and the importance of asking questions before you chose a facility.

This morning I was reading a regional magazine I enjoy, Blue Ridge Country. One of the featured articles (which was insightful and well written) was about retiring in the South. In 12 Retirement Friendly Retreats, the author discusses price of homes, local activities and restaurants. She fails however, to mention a single thing about healthcare, access to long term care, etc.

Why? She was simply following the trend of so many Americans who plan for "retirement" but not long term care. Apparently, we don't mind discussing how to retire in style, but also want to ignore what happens next. The getting older part where independence is lost and replaced by the new physical challenge of a broken body.

As I read about local hiking trails and museums in these retirement friendly towns, I wondered why no one actually writes about retirement honestly to exposes the real issues involved in long term care?

Oh wait. Someone did write honestly. Jane Gross did. And I recommend her book for anyone who has a parent who needs help with activities of daily living, or will likely need that assistance in the next 5-10 years.

A MUST READ for CAREGIVERS, part I

2011-06-07T11:28:00.003-04:00

I went to a large bookstore last night and found this gem smiling at me from the NEW RELEASES table:

"A Bitter-Sweet Season, Caring for Our Aging Parents, and Ourselves," by Jane Gross.

I bought it for many reasons. Some personal. Some professional.

I spend my days advising families how to navigate the web of elder-care, elder care financing, legal issues, etc. I spend my evenings worried about a family member who requires help with ADLs, and can no longer live independently.

I have only finished the first two chapters but I am already delighted by the content.

Gross writes in the Prologue "Most often, neither the aged parents nor the adult children are prepared for this long, often tortured, time in life, or for these role reversals, which are unanticipated, unwelcome and unfamiliar."

She goes on to say "the task is to get through it with grace, mindfulness and good sense."

I couldn't agree more although I have never said it so well.

We help families that have no experience with nursing homes, assisted living, paying for long term care, etc. We help them endure.

I help manage, encourage, and direct the care of a parent, too young to be disabled.

But my goal really should be to serve those in need, and ourselves during this stage "with grace, mindfulness and goodsense."

If you are looking for resources to help you make these decisions (what kind of care is appropriate, what to do when, what questions to ask, how will you pay, etc. ) you can call our office for our free book, A CONSUMER'S GUIDE TO LONGTERM CARE CHOICES IN VIRGINIA...

and I recommend you find a copy of "A Bitter-Sweet Season, Caring for Our Aging Parents and Ourselves " today.

LOCAL HEADLINES IN SW VIRGINIA

2011-05-26T17:25:00.004-04:00

Today's Roanoke Times had the following headlines:

Rabid Bobcat brings fight to doorstep

Global Warming may be storm culprit

Senior Population Swells in most areas

Misspent funds point to problem

Now which of those headlines is really no surprise at all?

And don't tell me the Bobcat was predictable.

It's the SENIOR population swelling in the area. And such news will bring additional health care providers. New ones, franchises, up and coming companies buying old buildings or new land to create new facilities.

Some of these providers will be welcome additions to the health care community, focusing on patient care.

Others will not.

Do some research before you let the shiny new paint convince you a nursing home or assisted living facility is right for your family.

Don't know how to research facilities?

Call Mary Ann next week and ask for our free book - CONSUMER'S GUIDE TO LONG TERM CARE IN VIRGINIA. Call 540-985-0098 to get your copy. Nope, sadly, it won't help with the Bobcat issue - but it will help you make important decisions about health care.

THE MEDICAL MALPRACTICE REFORM DEBATE

2011-05-25T06:43:00.000-04:00

It seems you can't go anywhere without hearing comments that lawyers and medical malpractice lawsuits are ruining America! Those individuals who hold this opinion believe that there are too many frivolous lawsuits filed against health care providers and that many good doctors are leaving the profession as a result. The allegations are horrible...but are they true?

Take a look at these facts:

1. The Institute of Medicine’s (IOM) seminal study of preventable medical errors estimated as many as 98,000 people die every year at a cost of $29 billion.

2. If the Centers for Disease Control (CDC) were to include preventable medical
errors as a category, these conclusions would make it the sixth leading cause of death in America....ahead of death caused by Diabetes or Alzheimer's Disease.

3. The Congressional Budget Office (CBO) found that there were 181,000 severe injuries attributable to medical negligence in 2003.

4. The Institute for Healthcare Improvement estimates there are 15 million incidents of medical harm each year.

5. HealthGrades, the nation’s leading healthcare rating organization,
found that Medicare patients who experienced a patient-safety incident had a one-in-five chance of dying as a result.

6. Researchers at the Harvard School of Medicine have found that even today, about 18 percent of patients in hospitals are injured during the course of their care and that many of those injuries are life-threatening, or even fatal.

7. The Joint Commission Center on Transforming Healthcare reported that
as many as 40 wrong site, wrong side and wrong patient procedures happen every week in the U.S.

My Conclusion: There are problems with the level of medical care received by Americans....I just don't think they are caused by the legal system.

Want to read more on this discussion? Check out the American Association of Justice report.

PHARMACY ERRORS

2011-05-24T09:20:00.002-04:00

Our local paper, The Roanoke Times, ran a syndicated article today from Joe and Teresa Graedon better known at The People's Pharmacy.

The article should be an "eye opener" to everyone who takes prescription medication...and that is a lot of people. The article warns consumers to be wary of mistakes in filling prescriptions...the wrong medicine...or the wrong dose.

How frequently does this happen? According to the article, about 1 in 5 prescriptions dispensed contain some form of error citing a report from the Journal of the American Pharmacists Association. Further, approximately 3% of the prescription errors were judged to be capable of harming the patient. The seriousness of the frequency of mistakes is even scarier when you multiply the 3% serious error rate by the 3 billion prescriptions dispensed each year and you find that there are potentially 90 million harmful errors in filling the prescriptions.

We have previously written about pharmacy negligence cases and provided our readers with important information here.

SETTLEMENT IS CONFIDENTIAL - what does that mean?

2011-05-23T10:27:00.002-04:00

A vast majority of medical malpractice / nursing home abuse and neglect cases in this country settle before trial.

This means the parties, on their own (and sometimes with an Arbitrator who orders payment on a case) agree to a certain amount of money to give / accept to end the lawsuit.

There are many reasons to discuss settlement.
- reduces risk
- costs are less
- it might take months / years to get a trial date
- with trial comes the right to appeal (sometimes) which would take additional months / years
- person may need the money now

Most settlements are confidential. This means that the parties agree not to tell anyone (newspaper, family, friends, etc.) how much the case settled for.

There are many reasons to discuss confidential settlement.
- if the paper prints you have just won thousands of dollars in an injury settlement - can you imagine who will call you? stop by? Want to be friends again?
- sometimes, the confidential nature of a settlement gives the medical provider some peace in knowing their reputation won't be as damaged, etc.

We typically agree to keep names of parties, amounts, etc. confidential.
Sometimes, when we have cases against the VA (Veterans Administration) the agreements cannot be confidential because tax dollars are being used to pay the claims.

If you have a potential medical malpractice case and think it will benefit all if you can shout it from the rooftops - you may be surprised to find when parties discuss their case, concerns, allegations, settle it themselves and agree not to tell the world, it can be positive as well.

REFORM...

2011-05-19T08:35:00.003-04:00

Nursing Home Reform.
Healthcare Reform.
Budget cuts.

Are these good thing?
Bad things?
Necessary things?

We represent families that are victims of abuse, neglect - but often times, they suffer because of careless, thoughtless mistakes.

Will reform change any of that?

Will budget changes hurt people in nursing homes?

I am not sure - but here are a few folks who seem to have opinions on the issues.

ASSISTED LIVING FACILITIES --- WHAT KIND OF CARE CAN YOU EXPECT?

2011-05-16T10:33:00.004-04:00

We speak to families all the time who have watched a loved one suffer because of an incident involving a nursing home or assisted living facility. We even hear of cases where long term neglect leads to death or permanent injury in health care facilities.

When I tell my friends or family I do "elopement" cases, they wonder if an elderly person has left a facility to get married.

No. Elopement simply means leaving a facility when you are unsupervised. It would be like a child leaving a day care center.

When I tell friends and family I do abuse cases, they wonder who would ever neglect or abuse an elderly person and act shocked at stories I share.

In the last few weeks, there has been some amazing national press about assisted living facilities in Florida. The Miami Herald did a long series on the topic and suspicious deaths in Florida assisted living facilities. The St. Pete times did one as well.
NPR also had a show last week that spoke about this topic. To hear the show, you can visit their online Talk of the Nation Thursday Podcast.

Quite simply, in Virginia, Assisted living facilities are NOT health care providers and as such have very little oversight under State law and None under Federal law.
They also have no legal duty to provide medical care. WHAT? I know.

Read the above articles.

Listen to the above interview and hear the stories about families that have suffered.

It is worth our time to repair the system.

EMERGENCY ROOM MISTAKES

2011-05-11T14:14:00.000-04:00

Did you know that hospital Emergency Departments account for 37% - 55% of the malpractice cases filed against hospitals and that most of the claims based upon diagnostic errors? For example, did you know that 15% of patients with a median age of 38 who reported to the ER with stroke symptoms were misdiagnosed?

All of this information is contained in an article from the May 10 edition of the Wall Street Journal titled, "Hospitals Overhaul ERs to Reduce Mistakes." Some of the more frequently misdiagnosed conditions include heart attack, appendicitis, meningitis, and pulmonary embolism. The main cause of these medical errors in the Emergency Room, according to the article, is poor communication between doctor and nurse!

It doesn't take a "rocket scientist" to solve the lack of (or inadequate) communication between doctors and nurses in the ER. How about requiring the nurse assigned to the patient and the attending doctor discuss the patient's complaints and tests results before discharging the patient home? If both doctor and nurse do not agree on either the diagnosis or decision to discharge the patient, then a second doctor must review the medical chart, examine the patient, and make the final decision.

What has your experience been in the Emergency Departments of the following hospitals in Virginia?

Alleghany Regional Hospital
Bath Community Hospital
Buchanan General Hospital
Carilion Bedford Memorial Hospital
Carilion Franklin Memorial Hospital
Carilion Giles Memorial Hospital
Carilion New River Valley Hospital
Carilion Roanoke Memorial Hospital
Centra Lynchburg General Hospital
Centra Virginia Baptist Hospital
Danville Regional Medical Center
Dickenson Community Hospital
Johnston Memorial Hospital
Lewis-Gale Medical Center
Martinsville Memorial Hospital
Montgomery Regional Hospital
Norton Community Hospital
Page Memorial Hospital
Pioneer Community Hospital
Pulaski Community Hospital
Rockingham Memorial Hospital
Smyth County Community Hospital
Stonewall Jackson Hospital
Tazewell Community Hospital
Twin County Regional Healthcare
Wellmont Bristol Regional Hospital
Wellmont Lee Regional Medical Center
Wellmont Lonesome Pine Hospital
Wythe County Community Hospital

DOUBLE STANDARD? OB v. MidWife?

2011-05-10T16:33:00.002-04:00

So I read an article on Slate.com today about a Virginia Midwife that will go to jail because of her negligent handling of a home delivery.

According to the Washington Post, the midwife was not licensed in Virginia and ignored signs of fetal distress. The failed delivery tragically lead to the death of the child and to manslaughter charges.

I am not sure how I feel about this. I am glad there is a civil system that provides a possible remedy, but often advocate that those who abuse or neglect the elderly should face criminal charges. But what about a case where the parents knowingly accept the risks of home birth?

No opinion today. Just a thought and a question - if this had been an OB who had made a mistake, ignored signs of distress, failed to become licensed in the state, etc., would these criminal charges have been filed?

I doubt it.

SAFETY PROBLEMS AND ASSISTED LIVING CARE

2011-05-08T06:48:00.002-04:00

This story comes from Florida but that state is not unique.

It appears regulators from the Sunshine State are failing to protect residents of assisted living facilities, according to an investigation by The Miami Herald and NPR member station WLRN. An analysis of state records revealed dozens of questionable deaths in assisted living facilities.

The revelation is a reversal for Florida, which was among the first U.S. states to regulate assisted living facilities, and to adopt a Residents Bill of Rights. The state now has nearly 3,000 assisted living facilities, which house tens of thousands of people.

Follow the story from the Miami Herald (Part 1 and Part 2) and National Public Radio.

SHOCKING NEWS: NURSING HOME UNDERSTAFFING ADDS TO DEATHS!

2011-05-07T05:27:00.003-04:00

Well maybe not shocking...maybe not even new information...maybe just common sense.

Whatever it is, this is the title of a new story in upi.com's Health News on May 4. The article is as follows:

Infections, the cause of nearly 400,000 U.S. nursing home deaths per year, may be largely the result of understaffing, researchers say.

A team of researchers at the University of Pittsburgh's Graduate School of Public Health analyzed data collected for Medicare/Medicaid certification from 2000 to 2007, involving about 16,000 nursing homes per year and roughly 100,000 observations -- representing 96 percent of all U.S. nursing home facilities.

The Centers for Medicare and Medicaid Services requires U.S. nursing homes be certified before receiving reimbursement for Medicare and/or Medicaid residents -- and as part of this process, facilities that do not meet certain standards are issued deficiency citations.

The researchers examined the deficiency citation for infection control requirements known as the F-Tag 441.

The study, scheduled to be published in the May issue of the American Journal of Infection Control, found a strong correlation between low staffing levels and the receipt of an infection control deficiency citation.

Fifteen percent of U.S. nursing homes receive deficiency citations for infection control per year, the study says.

"Our analysis may provide some clues as to the reason for the persistent infection control problems in nursing homes," the study authors say. "Most significantly, the issue of staffing is very prominent in our findings; that is, nurse aides, LPNs and RNs, low staffing levels are associated with F-Tag 441 citations. With low-staffing levels, these caregivers are likely hurried and may skimp on infection control measures, such as hand hygiene."

My Take: Almost every nursing home I have sued for a resident or family member failed to have enough care givers. Too many patients being cared for by too few nursing aids and nurses. Why? Because the owners of the nursing homes want to maximize their profit more than they want to maximize patient care. I call their business strategy, "Profits over People." The fewer employees the higher the net profit for the owners of the nursing homes.

HOSPITALIZED PATIENTS SHOULD NOT GET PRESSURE SORES

2011-05-06T06:22:00.001-04:00

I believe pressure sores can be avoided if patients receive appropriate care...especially in the hospital setting. That is why a reported medical malpractice case from New Mexico is so disturbing.

Alfred Gonzalez, age 57, fell and sustained a fractured hip. He was admitted to his local hospital for treatment and developed pressure sores on the heels of both feet. He received treatment at another facility and was ultimately discharged to his brother's care suffering from multiple pressure sores...which took 14 months to heal.

A lawsuit was filed against the hospital alleging failure to provide adequate nutrition and care, including proper prevention, diagnosis, and treatment of the pressure sores. The jury awarded substantial damages against the hospital, including punitive damages.

If any of the readers of Legal Medicine have encountered this preventable situation in the following hospitals of Southwest Virginia, we invite you to post (anomalously) your experience:

Alleghany Regional Hospital
Bath Community Hospital
Buchanan General Hospital
Carilion Bedford Memorial Hospital
Carilion Franklin Memorial Hospital
Carilion Giles Memorial Hospital
Carilion New River Valley Hospital
Carilion Roanoke Memorial Hospital
Centra Lynchburg General Hospital
Centra Virginia Baptist Hospital
Danville Regional Medical Center
Dickenson Community Hospital
Johnston Memorial Hospital
Lewis-Gale Medical Center
Martinsville Memorial Hospital
Montgomery Regional Hospital
Norton Community Hospital
Page Memorial Hospital
Pioneer Community Hospital
Pulaski Community Hospital
Rockingham Memorial Hospital
Smyth County Community Hospital
Stonewall Jackson Hospital
Tazewell Community Hospital
Twin County Regional Healthcare
Wellmont Bristol Regional Hospital
Wellmont Lee Regional Medical Center
Wellmont Lonesome Pine Hospital
Wythe County Community Hospital

TOO MANY FALLS!

2011-05-05T08:59:00.003-04:00

I recently read about a lawsuit against a Florida assisted living facility which is both disturbing and all too common, even here in Virginia.

Francis Tremblay (age 99) lived at the Living Legends Retirement Center in Broward County, Florida. During her 29 day stay at this assisted living facility she fell about 11 times. The final fall resulted in a fracture of her neck, two black eyes, and a facial laceration. She was hospitalized due to her injuries then discharged to a nursing home where her health deteriorated until her death 7 months later.

Tremblay's granddaughter sued the assisted living facility alleging that it negligently failed to implement fall prevention measures such as increased supervision, alarms, or placements of mats on the floor. The jury listened to the evidence and returned a substantial verdict for Mrs. Tremblay's estate.

I don't blame anyone for the first fall. But assisted living facilities and nursing homes know they must assess their residents for the "potential" of falling and take steps to reduce the likelihood of a fall occurring...if they don't they are negligent and should be held accountable when the inevitable happens and an elderly resident is hurt or killed.

My Take: If your loved one has experienced falls in a nursing home or assisted living facility find out why and then ask the facility or nursing home to tell you what steps it is taking to reduce the likelihood of another fall occurring.

TURN TURN TURN...

2011-05-02T10:58:00.002-04:00

THE BYRDS - Turn ! Turn ! Turn ! by danadi33

Know this song. Me too. Great message. TURN TURN TURN.

If you are a nursing home employee, or even a nurse at the hospital dealing with bed-ridden post surgical patients, I hope this song becomes part of your daily mantra.

TURN TURN TURN... your patients.

Or terrible things happen. Like Pressure ulcers. Infections. Death.
Anyoen who is bed ridden or has compromised health (diabetes, MS, anything) needs to be repositioned every two hours at the MOST.

If your loved one developed a wound, pressure ulcer, or bed sore because of hospital or nursing mistakes or neglect, we can help.

SPINE SURGEON LOSES HOSPITAL PRIVILEGES

2011-04-26T13:35:00.003-04:00

The Wall Street Journal ran an interesting article on April 13. The article reported on a Portland, Oregon spine surgeon who lost his hospital operating privileges at the Providence Portland Medical Center.

Why you ask?

Because available data revealed the surgeon had the highest rate of multiple spinal-fusion surgeries among the 3,407 spinal surgeons who performed the surgery on Medicare patients in the United States in 2008 and 2009. We are talking about multiple spinal fusions on the same patients. He operated on one patient seven times!

To me the real story behind this report is not the actions of the surgeon. The real story is that the hospital sat back and did NOTHING for at least two years while this doctor operated and re-operated and re-operated on the same patients over and over. Why didn't the hospital do something? The answer will make you green...at least it made the hospital green and lots of it. I am talking about money. Bills for use of the operating room, bills for use of the hospital's surgical staff, bills for anesthesia, bills for the recovery room, bills for the intensive care unit, bills for a regular hospital room while the patient recovered from surgery after surgery.

The hospital only took action to suspend the surgeon's surgical privileges after the Wall Street Journal published a previous article on March 29 disclosing the surgeon's actions.

My Take: The hospital knew the surgeon was performing unnecessary surgeries. In fact, the Oregon Medical Board had previously (2006) forced the surgeon to take remedial training after determining he had performed unnecessary surgeries and for allegedly billing for procedures he did not perform. In my opinion, the hospital looked the other way while stuffing dollars into its bank account and allowing patients to suffer. These are the same hospitals and doctors who are looking forward to increased protection and a reduced liklihood of being sued if current changes are passed by the United States Congress.

MORE MEDICAL ERRORS AND THE HOUSE OF REPRESENTATIVES

2011-04-21T13:55:00.004-04:00

What do more medical mistakes have to do with the U.S. House of Representatives? The answer: more than you could ever imagine.

Let me explain. There is currently before the House of Representatives a bill called the "Help Efficient, Accessible, Low-cost, Timely Healthcare"(HEALTH) Act of 2011.’’ Under this bill, the costs of medical mistakes would shift to injured patients, their families and taxpayer-funded health and disability programs.

And how are acts of medical negligence trending? How about a recent study which reveals that one out of every three hospital patients is sickened, injured, killed or otherwise harmed because of a medical error. That is Not a very good trend. The report, published in April edition of Health Affairs concludes:

Despite more than a decade of national focus on patient safety, medical errors and other adverse events occur in one-third of hospital admissions--as much as ten times more than some previous estimates have indicated...

My Take: Why would Congress want to push the costs of medical errors onto the very victims of medical negligence? Maybe doctors, hospitals, and pharmaceutical companies give more money to their re-election campaigns than those who are the victims of medical malpractice!

MIDWIVES IN THE NEWS

2011-04-20T10:06:00.002-04:00

I wrote a blog in February of 2009 titled, "Midwives: A Recipe for Disaster" and received dozens and dozens of emails from irate midwives.

The point of my blog post was that, as long as a delivery goes well, a midwife may work out just fine. However, if complications arise during delivery (failure to progress, abnormal presentation, umbilical cord prolapse, etc.) then I would want my wife to be in a hospital with appropriate resources and specialists.

This very situation played out recently in Alexandria, Virginia. Here is what occurred as reported by the Washington Post. A 43-year-old woman wanted to deliver the family’s first baby at home. She sought out an Alexandria, Virginia midwife practice, BirthCare & Women’s HealthCertified Nurse-Midwives. But there was a complication; the baby was in the breech position, meaning that it was upside-down rather than having its head closest to the birth canal.

Apparently, BirthCare advised the mother that the case was too complicated for a home delivery, but she preferred to deliver at home. So she sought out a midwife experienced with difficult deliveries. That person was Karen Carr, a Baltimore midwife who has delivered more than 1,200 babies and is well known in the childbirth community.

During the delivery at the couple’s home on Sept. 11, with Carr, a birth assistant and a doula helping, the baby’s head essentially got stuck after the body had been delivered. In such cases the baby cannot survive long, so Carr and the two others worked to manipulate the baby and the mother’s position to finish the delivery.

The baby, a boy, had a heartbeat but was not breathing after delivery. Someone called 911 immediately, and those in attendance pushed air into the baby’s lungs until an ambulance arrived, he said.

The baby was declared dead at a nearby hospital.

It also appears that Carr was not licensed in Virginia. She now faces a charge of involuntary manslaughter, as well as charges of child abuse, neglect and acting without a license. She was indicted by a grand jury last week on an additional charge of negligently allowing a child’s life to be endangered.

My Take: This was truly an avoidable disaster of life-altering events for everyone concerned.

PRESIDENT OBAMA AND NURSING HOMES

2011-04-16T06:11:00.000-04:00

We try to stay away from political discussions on this blog...there are enough disputed issues at the intersection of law and medicine!

However, I couldn't resist passing along an article from "McKnight's Long Term Care News and Assisted Living." I rarely, almost never, agree with the positions taken by this pro-nursing home industry rag.

The article discusses President Obama's April 13 comments regarding his plan to cut the nation's deficit by $4 trillion in 12 years. I am all in favor of cutting the deficit and dramatic actions need to be taken now. But we need to keep our heads (hear that Tea Party members!)and appreciate that every cut does carry consequences. Many proponents of spending cuts argue vehemently for dramatic cuts to Medicaid and Medicare. Okay, but keep in mind that the Medicaid and Medicare programs are the source of about four-fifths (80%) of all payments to nursing homes.

My Question: What will happen to those 8 out of 10 nursing home residents if they lose their Medicare or Medicaid benefits?

ASSAULTS IN NURSING HOMES: MORE COMMON THAN YOU THINK

2011-04-15T06:08:00.000-04:00

The newspaper report was disturbing. Anderina Sanderson, 89, who had dementia, was assaulted after walking into the room of an 86-year-old male resident at the Central Park Nursing Home in suburban Windsor on April 19, 2007. She died four days later. Three days before he assaulted Mrs Sanderson, the man repeatedly hit another woman to the head and face.

This report comes from a newspaper in Sydney, Australia...but it could have been from any state or city in the United States. Just use the search terms "assault nursing homes" in Google and you will get over 81 million hits!

We have handled numerous nursing home assault cases. One of the more recent cases resulted in the death of an elderly Southwest Virginia grandmother who was beaten and pushed to the floor by another resident with a known violent history. You need to ask some important questions if your loved one is moved into a nursing home and has a roommate:

1. Has the facility encountered any problems with aggression from the roommate?

2. Does the roommate have any particular idiosyncrasies of which you need to be aware?

3. Who was previously rooming with the roommate? Go ask the previous roommate or his/her family about that individual.

4. I encourage families to ask the facility Administrator if the new roommate has a criminal record. The Administrator is unlikely to answer this question but just asking it certainly puts the facility on notice of a potential problem.

My Take: We place family members in nursing homes because they can no longer take care of themselves and need a SAFE and SECURE environment. Assaults are inexcusable!

SAVING $ AND LIVES? YES PLEASE

2011-04-14T10:01:00.003-04:00

I ran across an article on Fox New's website today about a government study and plan that would try to prevent medical errors.

The goal is to cut preventable hospital-acquired conditions by 40 percent over the next three years, said Health and Human Services (HHS) Secretary Kathleen Sebelius, who announced the initiative with consumer and industry groups. She said it could result in 1.8 million fewer injuries and saving more than 60,000 lives over the period.

They also want to reduce hospital readmissions by 20 percent.

Medicare, which provides medical coverage for about 45 million elderly Americans, could save as much as $50 billion over the next decade, HHS said.

Let me give you an example.

Mama Smith goes in for abdominal pain. They decide she needs to have laproscopic surgery. The physician during the surgery, cuts Mama's bowel but doesn't know it. She is out of surgery and everyone assumes she is fine. On day 3, she is almost death, septic and her body cavity is eaten with infection from the bowel leak that was caused and not discovered during the surgery. Mama needs additional surgery, rehab, she develops pressure ulcers, wounds, more rehab, more care.

A Medical error could cost us the tax paper, $300,000 in follow up care paid for by Medicare. This is where the $50 billion comes in. Fewer mistakes, fewer errors, less treatment needed to remedy the errors.

Sure, this plan might put me out of business, but if there are fewer medical errors and few families suffering, I won't mind looking for other work.

IS A NURSE PRACTITIONER ENOUGH?

2011-04-04T11:56:00.002-04:00

There was an interesting article in my local paper this weekend about nurse practitioners who are lobbying the State to change the rules, and no longer require physicians to supervise their actions.

According to the article, "Virginia is one of 24 states to require a formal relationship, documented in writing, between a nurse practitioner and a physician." This Document reflects the relationship that the MD supervises the NP.

According to the Roanoke Times and its sources, "nurse practitioners can diagnose and treat without physician involvement in 22 states and the District of Columbia. Four states require some form of a relationship between doctors and nurse practitioners but do not require documentation."

I understand all sides of the issue.. I do. But please realize that physicians have a great deal more training. Wouldn't you want more training, more experience, more expertise diagnosing and treating you?

Or, is the supervision a mere technicality where doctors don't question the NP's diagnosis and treatment, just signs off and send a second bill? In this scenario there would be no extra eyes, no experience, just a blank check mark approving treatment regardless.

Or should we allow NP to stand on their own and face the consequences of mis-diagnosis, mistake, or malpractice? To date, in Virginia, they can hide behind the doctor's coat as the diagnosis was approved by someone else.

I am not sure what the right answer is, but I am glad there is a dialogue about it. There should be when it comes to our health.

UNREPORTED MEDICAL ERRORS AND CONFIDENTIAL SETTLEMENTS

2011-04-02T12:38:00.005-04:00

There is a lot of talk circulating about limiting patients' rights to hold their health care providers responsible for medical negligence. I am biased...as I see (and hear of) acts of unbelievable negligence every day...but I am a lawyer who represents the victims of medical negligence.

My friends can't understand why I sue doctors, hospitals, and nursing homes. I wish they could see what I have seen. I wish I could tell them my clients' stories of unbelievable medical negligence and how they cause serious life-altering injuries and death. But I cannot. Those types of cases are resolved upon the condition that the patient and his/her lawyer keep their mouths shut...there are resolved confidentially.

How frequent are those acts of medical negligence? In November 2010, the U.S. Department of Health and Human Services issued a study that covered just the 15 percent of the U.S. population enrolled in Medicare. It found that each month one out of seven Medicare hospital patients is injured—and an estimated 15,000 are killed—by harmful medical practice. Treating the consequences of medical errors cost Medicare a full $324 million in October 2008 alone, or 3.5 percent of all Medicare expenditures for inpatient care. Another recent study looked at the incidence of avoidable medical errors across the entire population and concluded that they affected 1.5 million people and cost the U.S. economy $19.5 billion in 2008.

The Centers for Disease Control and Prevention have estimated that almost 100,000 Americans now die from hospital-acquired infections alone, and that most of these are preventable.

Twelve years ago, the Institute of Medicine issued a landmark report showing that medical errors in U.S. hospitals kill up to 98,000 Americans a year. In 2000, another estimate, published in the Journal of the American Medical Association, which included fatalities resulting from unnecessary surgery, hospital-acquired infections, and other instances of harmful medical practice, put the total annual death toll at 250,000.

My Take: Lets make the process transparent. States should outlaw confidential settlements. Hospitals should be forced to report its rate of surgical complications for each surgical procedure. Hospitals should be required to report what percentage of its patients acquire an infection while in the hospital. Hospitals should tell the public what percentage of its patients are readmitted for complications which arose from a prior hospitalization. If the process doesn't become more open and transparent, nothing will ever change.

GOV. VETOES MED MAL CAP INCREASE

2011-03-30T14:26:00.002-04:00

Doctors groups agreed.
Trial lawyers agreed.
Senators and members of the Gen. Assembly agreed.
They all got together and created a bill increasing the cap for malpractice cases in the Commonwealth of Virginia and our Gov. rejects it?

Maybe he can explain to the family of a 32 year old mother of two that dies because a doctor commits malpractice, that her case isn't worth what a jury values it to be. Rather, he knows better.

Oh, he says its to save money.

PLASTIC SURGERY: THIS DOESN'T LOOK GOOD!

2011-03-29T06:11:00.003-04:00

America the beautiful! Isn't that what many of us want to be? Thin..Trim..and Good Looking! Well, before you head off to your local plastic surgeon you need to do a little research.

I did a little research on plastic surgeons in Western Virginia and found some disturbing information on a local Roanoke Valley doctor. The Virginia Department of Health Professions (VDHP) issued an order on February 28, 2011 highly critical of Dr. Gregory A. Alouf of Alouf Aesthetics in Salem, Virginia. The VDHP found that Dr. Alouf performed an abdominal liposuction procedure on a 29 year old patient whose Body Mass Index (BMI) was too high to make her an appropriate candidate for the procedure. The decision stated that the patient's post-operative complications (contour irregularities, persistent excess skin, etc.) were expected given the fact that she was not a proper candidate for the procedure. The order by the VDHP discussed several other patient complications in detail, criticizing Dr. Alouf's care of those patients.

More concerning is the VDHP's finding that Dr. Alouf lacked the "requisite education, training, experience, knowledge, skill, expertise, and competence to perform..."cosmetic surgical procedures such as facelifts and liposuction." The VDHP also found multiple information contained on Dr. Alouf's web site to be inaccurate or misleading. Dr. Alouf has apparently corrected his website. In the end, the VDHP found that due to Dr. Alouf's lack of formal surgical training, he would be restricted from performing incisional facial or body contouring, including but not limited to facelifts, lipo-abdominoplasties, and breast augmentation.

My Take: It is always wise to check out your doctor before submitting to elective plastic or reconstructive surgery as there are doctors who represent they have the training and experiece to perform these procedures when, in fact, they do not.

LONG TERM CARE INSURANCE IN VIRGINIA

2011-03-28T10:36:00.002-04:00

Dan and I wrote a book this year on Long Term Care options in Virginia. In one chapter, we about Long Term Care insurance --- and what questions to ask when you are looking for a policy. And then, I heard some good news out of Richmond for Virginians: HB 1840 which passed and is now awaiting Gov. signature, "Doubles the amount of the tax credit an individual can take for long-term care insurance from 15 percent to 30 percent of the amount of the premium paid for such insurance, for taxable years beginning on and after January 1, 2012." So it pays to prepare, in more ways then one.

IMPROVEMENTS COMING TO CMS WEBSITE

2011-03-24T06:39:00.000-04:00

The Centers for Medicare and Medicaid Services has announced plans to post new information required by the Affordable Care Act on Nursing Home Compare.

The Nursing Home Compare website is a valuable resource for individuals and families faced with the decision of selecting a nursing home. As an aside, this new information is required under President Obama's health care reform efforts. There will be three changes to the Nursing Home Compare website:

The first change will be to add information to allow consumers to more directly file complaints about nursing homes with State Survey Agencies. These changes include adding links from Nursing Home Compare to State complaint websites and making State phone numbers and fax numbers more prominent on Nursing Home Compare. CMS is also adding a standardized complaint form that consumers can use in cases where they prefer to submit a complaint by fax.

The second change (effective April 23, 2011) will add a more visible consumer rights section that clearly spells out resident and consumer rights and provides more information about courses of action that consumers can take if they feel that their rights are being violated.

Finally, in July 2011, CMS will make an additional change to Nursing Home Compare to display information for each nursing about the number of substantiated complaints received and about the number of enforcement actions taken against the facility.

My Take: These changes are substantial and will be of great benefit to everyone who takes advantage of this information BEFORE placing a loved one in a nursing home.

GRANNY CAMS CATCH CRIMINAL ACTIVITY IN NURSING HOME

2011-03-22T15:47:00.005-04:00

I have written on this topic before but "granny cams" are back in the news again.

This time the camera hidden in the resident's room in a nursing home (The Harborage) in New Jersey captured an aide repeatedly hitting an 87 year old woman. Police said the video showed the aide slapping the resident and even pulling off her oxygen mask. The resident had previously suffered a stroke and was unable to defend herself.

The resident's family had been concerned for some time over the discovery of unexplained bruises but their complaints went unaddressed by the nursing home.

Hidden cameras or "granny cams" are legal in Virgina so long as you follow these regulations.

HOW TO LOOK UP A VIRGINIA DOCTOR

2011-03-22T09:21:00.002-04:00

A friend's baby boy had to have surgery last week.

She emailed me the name of the Doctor. Why? Not because I am a walking database of physician information, but she wanted to know more about the doctor then the hospital website provided.

I started by looking him up on the Virginia Board of Medicine website - which you can access here: http://www.vahealthprovider.com/search.asp

Then, I typed in his last name, clicked on the doctor in our fair city that matched and learned all sorts of good information.

What information?

Where he went to school.
Whether he is board certified.
Whether he has reported any lawsuits from the last ten years etc.

Then, when I got all this great info - I emailed my friend with the stats.

Now, someone with amazing credentials can make a mistake, I realize. But do you want to go to someone who has been successfully sued 3 times in the last 10 years? Maybe you have no choice -- but you can at least do your homework up front to learn more.

Frith & Ellerman update on Med Mal and Long Term Care in Virginia

2011-03-16T14:11:00.002-04:00

WANT TO READ OUR FIRM'S NEWSLETTER ON MEDICAL MALPRACTICE AND LONG TERM CARE ISSUES IN VIRGINIA?

Visit our Newsletter Website to read about the VA, Long Term care the General Assembly Issues

2011 GENERAL ASSEMBLY CHANGES THE LAW IN VIRGINIA FOR MALPRACTICE REPORTING

2011-03-15T10:55:00.002-04:00

Occassionally, I really like a law.

And one was proposed and passed in this year's General Assembly term that I really like.

HB 2229: Health professionals; competency assessments.

Changes requirements for physicians who have had 3 medical malpractice judgments or claims in ten years such that it only affects practicing physicians. Bill also changed the trigger amount from $10,000 to $75,000.

Ok, what does that mean?

Doctors have to report to the state when they have been successfully sued 3 times for an amount over $10,000.

Now that will change. Only cases with a value of $75,000 or more will have to be reported, and only if the physician is still practicing.

I like this law for a few reasons.

1. $10,000 is way too low.

2. Often, if you are plaintiff #3 - meaning, the third case, even if you have a reasonable case that should settle, doctors don't want to because of the 3 strikes rule. Now, if the MD has retired, they might not be as worried about the rule, and small cases, no longer count.

So, I like it. Well done Richmond. I think doctors will like it too.
And this means if you are the plaintiff on a case, and the third

NOT FOR PROFIT NURSING HOMES

2011-03-10T14:34:00.004-05:00

Dan and I often encourage families to look for non-profit or not for profit long term care facilities if a loved one needs a nursing home / assisted living facility, etc.

I have advised many to visit www.medicare.gov and look up information on local facilities.

Today however, I found an even better website that provides information for non-profit long term care facilities all over the Country. Leading Age is what appears to be a non-profit group formed to help non-profit health care providers.

Want to know what nursing homes in Virginia are non-profit? Here is their search link.

http://www2.aahsa.org/findmember.aspx

Want to begin the conversation about long term care? Either request our book -CONSUMER'S GUIDE TO LONG TERM CARE IN VIRGINIA, info here, or visit their suggested questions page.

Well - just another useful resource I wanted to share.

NURSING HOMES AND CRIMINALS: A BAD MIX!

2011-03-09T11:41:00.004-05:00

I was shocked to read a recent article in the New York Times about the prevalence of nursing home employees with criminal backgrounds. Why would any facility employ someone with a criminal history to take care of the elderly and weak? Why would any facility employ someone with a criminal record to take care of the most vulnerable of our citizens?

The article reports that more than 90 percent of nursing homes employ one or more people who have been convicted of at least one crime. In addition, 5 percent of all nursing home employees have at least one criminal conviction.

The article is based upon a report by Daniel R. Levinson, inspector general of the Department of Health and Human Services, who obtained the names of more than 35,000 nursing home employees and then checked with the Federal Bureau of Investigation to see if they had criminal records.

“Our analysis of F.B.I. criminal history records revealed that 92 percent of nursing facilities employed at least one individual with at least one criminal conviction,” Mr. Levinson said. “Nearly half of nursing facilities employed five or more individuals with at least one conviction. For example, a nursing facility with a total of 164 employees had 34 employees with at least one conviction each.”

My Take: This situation is totally unacceptable. Nursing homes should conduct criminal background checks on all employees and, if they fail to do so, and hire a former criminal to take care of vulnerable residents, their license should be taken away and the facility closed.

NEW RIVER VALLEY MEDICAL MALPRACTICE ATTORNEY

2011-03-09T09:23:00.002-05:00

It is a privilege to live in SW Virginia.

Did you wake up and see Mountains this morning? I did.
Did you spend 3 hours in traffic getting to work? Me neither.
Did you do something fun and outdoorsy last weekend when Spring weather seemed imminent?
Me too.

But what about our health care in SW Virginia.

Did you have to visit a local hospital or physician recently and a mistake occurred?
Did someone you love lose their life because of a failure to diagnose or surgical error?

Our firm is currently reviewing cases from all over NRV. If you have a potential nursing home, hospital or physician malpractice case in Blacksburg, Radford, Giles, Montgomery, Pulaski Counties, we would be honored to help.

Call Kim, our paralegal today at 1-866-985-0098.

COSTS OF MEDICAL MALPRACTICE CASES OUTWEIGH RECOVERY

2011-03-03T10:36:00.004-05:00

Yesterday I think I wrote at least three letters to Virginia families that stated the following:

I am so very sorry for your pain.

However, I cannot recommend you file suit because while the physician / hospital / nursing home may have been negligent in their care, the costs of litigation will likely exceed your potential recovery.

Well what does that mean people may wonder?

It means, Med Mal cases are expensive and sometimes you have to make the reasonable business decision, not to spend more money then you can make.

Example.

Medication error - damages last 1 month and out of work for 3 weeks. Total blackboard damages are $6,000.

Hire experts at first - $5000
Filing / serving Lawsuit - $400
Ct. reporters / copy costs / depositions / travel - $5000
Experts to Court - $10,000
Exhibits for trial - $3,000

TOTAL COSTS (and note you haven't paid attorneys fees) are over $23,000

Then, lets say the jury gives you $20,000 for your month of pain and suffering / work, etc.
You owe 40% in attorneys fees
and you will only recover 60% or $12,000 after you pay attorney's fees.

But you have already spent $23,000 to get to Court - so $12,000 isn't so great afterall.

This is one of those cases where the costs of litigation are greater then the potential recovery.

Do you want to spend $23,000 to get $12,000?

I didn't think so.
That is why we often advise against filing suit in cases we believe are valid cases.

If you want to discuss in more detail - give us a call. If you would like us to evaluate your case, call 1-866-985-0098 today.

THE "TALK" WITH MOM AND DAD

2011-02-25T10:03:00.003-05:00

I am referring to "the talk" with your parents about the need for, and selection of, an appropriate nursing home or assisted living facility.

The time for "the talk" comes at different points for different families. Sometimes the need for "the talk" comes after the death of one parent leaving the more dependent parent alone. Sometimes the need for "the talk" arises after a hospitalization for a serious illness, surgery, or injury.

As the instigator of "the talk," you better know the differences between independent living, assisted living, and nursing homes. You better know what type of care is provided by each and at what cost. Finally, you better know the difference between the good facilities and the average to poor facilities...and what factors make a facility "good" or "poor."

The Wall Street Journal published a great article on these issues and is a must read. Lauren and I have also published a book for Virginia residents (free upon request) which provides even more details and information. Take a look at, "A Consumer's Guide to Long Term Care Choices in Virginia."

VIRGINIA MEDICAL MALPRACTICE ATTORNEY

2011-02-24T10:56:00.003-05:00

Our office will evaluate and review medical malpractice cases across the Western part of Virginia.

When you call our office, we will ask you to share the general facts.

Based on that, we may say "No, you don't have a case and here is why..."

or

We may say "based on what you have shared, we think further investigation would be prudent."

If we encourage investigation, we are going to need the relevant medical records. Then, maybe, expert review.

Sometimes experts turn down cases. When this happens, we recommend to the families that they not file suit rather than find a new expert.

After all, who wants to spend 1-2 years in litigation unless they have a good case?

Finally, if we do recommend filing suit, we want to meet the whole family and discuss what litigation will be like. Long. Emotional. Expensive and exhausting.

If you need an attorney to review your case, please call our office today.

Don't forget, injury cases in Virginia have a two year statute of limitations, which means, you may not be able to file a suit no matter how good, two years after the negligence.

HOME HEALTH NIGHTMARES

2011-02-22T11:12:00.005-05:00

The following is a true story.

60 something year old woman with MS needs home health after a bad exacerbation of the disease. Hires local, not-for-profit home health care agency to come in and provide services.

For $21 an hour (do the math - that is expensive) home health sends various "personal care assistants" out to the house to help patient with transfers, meals, bathing, etc.

Personal care assistant is not a nurse. Not even a CNA. She may have 4 weeks of training.

Personal care assistant is late all the time because of car problems.

Patient feels sad for personal care assistant, gives her money to fix car. Next day, she doesn't show up.

Daughter of patient is concerned when she finds out about cash / car and absence. Asks home health care company for aide's full name.

For a small price, on the Internet, daughter does a background search and finds out Aide is a big time felon. Drug dealing, bad checks, you name it. She had gotten out of jail probably a few weeks before she showed up at Mom's house.

Call home health care agency and tell them about the problem.

"but we did a background search" they tell her.

Problem is, the search was only for one state... and her felony record was a few states away.
Even felons are smart enough to lie on their applications and move.

Families - home health care comes with inherent risks, including, strangers in your home.

Please do your homework. I know my family learned this lesson the hard way!

VIRGINIA NURSING HOME ELOPEMENT

2011-02-21T08:54:00.000-05:00

We were discussing the parable of the Good Samaritan the other day and a friend told me the following actual story that had happened to her the week before:

She was literally driving around our City, Roanoke, and saw a woman laying on the side of a major roadway. She had clearly fallen.

Our friend exited the highway, and came back to find that another motorist had stopped and helped the elderly woman.

Turns out she lived at a nearby assisted living or nursing home - and had made her way down to the road and was going on a walk.

This is terrifying.

What if she had been hit by a car?
What if she had fallen into traffic?
What if no one had stopped and she had suffered an injury in the fall?
What if she had been missing for hours?

If your loved one is in any kind of long term care facility (Continuing Care, Assisted Living or Nursing Home) and they are wandering, trying to leave, etc., you need to be very involved with the facility to prevent elopement.

There are ways and tools you can use to make sure this NEVER HAPPENS AGAIN.

HOW TO CHOSE A NURSING HOME IN VIRGINIA

2011-02-19T11:09:00.000-05:00

It is complicated and stressful, but necessary for millions of Americans.

What is?

Discussing long term care with your loved ones.

What do I mean by long term care? Home health, nursing home, or other options for someone who has various health care needs.

And why is it complicated?

Because there are many issues from type of facility or service, to method of payment.

Stressful?

Because these decisions are often made during crisis and often reflect some one's declining health.

We have written what we hope to be a very helpful guide to families who are faced with these issues:

A Consumer's Guide to Long Term Care in Virginia

The book covers the following topics:

1. The differences between options / facilities

2. Questions to ask during your search

3. Legal documents that are helpful for this process

4. Methods of payments

5. Rights and Regulations under Virginia law.

And you can order your free copy by emailing or calling Mary Ann in our office.
mspencer@frithlawfirm.com or 1-866-985-0098.

We hope you will consider these issues proactively, and believe our book will be a great place to start.

TORT REFORM AND MEDICINE

2011-02-17T15:38:00.003-05:00

There has been a lot of heat coming out of Washington, DC over tort reform and the need to limit what victims of medical malpractice can recover if they prove their case in a court of law. Notice I wrote "heat" as there has been very little "light" in this discussion.

I especially like the discussion over doctors ordering unnecessary medical tests solely to protect themselves from being sued if it is later discovered that such a test may have correctly diagnosed the patient's medical problem. The tort reformers label this "defensive medicine" and argue that it drives up the cost of medical care for everyone. I call it BS!

My law firm has sued doctors and hospitals for over 25 years in a state (Virginia) which goes out of its way to protect doctors in every way imaginable. In those 25 plus years, I have sued doctors for failing to correctly read (or read at all) the results of a test they ordered. I have sued doctors for ordering tests that were never run/conducted...the results of which would have diagnosed my client's medical problems early enough to successfully treat them.

BUT I HAVE NEVER, IN OVER 25 YEARS, SUED A DOCTOR FOR FAILING TO ORDER A TEST...SO PLEASE EXPLAIN TO ME AGAIN HOW WE HAVE SUCH A BIG PROBLEM WITH DEFENSIVE MEDICINE DRIVING UP THE COSTS FOR MEDICAL CARE.

I'M WAITING TO HEAR FROM YOU...........

MISTAKES AFTER SURGERY LEAD TO INJURY in VIRGINIA

2011-02-16T10:02:00.000-05:00

If I were writing a Short Story about an incident of post-surgical malpractice, I might start with the following:

When she awoke, she realized she was alone in a cold, sterile room with low lights. The only noise was the hum of the machines connected to her body, and bed. She felt odd, disconnected from her legs. Why couldn't she move her leg? The doctor had told her she would be able to move her leg immediately after the knee surgery. Where was the doctor? Where was she?

If I were writing a newspaper article about an incident of post surgical malpractice, I might write the following:

Sadly, Ms. Smith was not turned or moved from the supine, upright position in her bed for three days. Although she was aware of some discomfort, she was unable to feel the wound developing on her sacrum because of the pain killers and pain pump she was on. Finally, when the pain medications were reduced on day 4, and the pain too excruciating to endure, the nurses realized a large wound had developed on her back side.

If I were writing a lawsuit alleging post surgical negligence, I might write the following:

Notwithstanding the duties outlined, the defendants were negligent in the following respects:

a. Failing to employ a reasonable amount of attention and skill in examining, diagnosing and treating plaintiff’s condition;

b. Failing to move or otherwise reposition the plaintiff (after her surgical procedure) in order to prevent injury to her skin and tissue;

c. Failing to implement pressure reduction measures such as turning, monitoring and use of special mattress;

d. Failing to timely diagnose and treat the plaintiff’s developing tissue and skin injuries;

e. Failing to timely remove a bed pan from underneath the plaintiff; and

f. Failing to exercise or possess the degree of care, skill and learning ordinarily exercised by nurses caring for post-operative patients.

Post surgical mistakes can be most painful, and cause serious injury. The surgeon did his or her job, but the hospital staff fails to provide the follow up care necessary, or fails notify the surgeon of complications.

In the last year we have successfully handled numerous post surgical care cases in Virginia and are currently working on others. We would be honored to review your case as well.