DO I HAVE CASE? WHAT EVERY PATIENT NEEDS TO ABOUT WINNING A MEDICAL MALPRACTICE CASE

I, Richard M. Katz, have been in practice for about thirty-five years and for most of those thirty-five years I have handled medical malpractice claims along with other personal injury claims. Medical malpractice claims present some unique challenges because of complex medical issues. As well, judges and juries tend to favor doctors, nurses and hospitals over injured patients in medical malpractice lawsuits. Under the best of circumstances medical malpractice cases are difficult to win.

An injured patient must prove his or her claim in a medical malpractice action. That is not easy. The news medial will often cover stories about folks whom juries have awarded millions of dollars in a medical malpractice lawsuit. However, the new media rarely covers stories about all of the injured patients who lost their medical malpractice cases. The sad fact is that more than 80% perhaps as high as 90% of the medical malpractice cases going to trial in California results in the doctors, nurses or hospitals winning. Most of the medical malpractice lawsuits that go to trial results in defense verdicts, i.e., the doctors, nurses and hospitals prevailed / won the trial.

There are many roadblocks to successfully bringing a medical malpractice case. The roadblocks that must be overcome include, proving the healthcare provider’s (doctor, nurse, hospital, etc.) negligence (i.e., showing that the healthcare provider failed to act as a reasonably careful doctor, nurse, hospital, etc. in the same or similar circumstances, convincing the defendant or ultimately a judge or jury that the defendant was negligent, retaining a qualified attorney to represent you

Proving the Healthcare Provider’s (Doctor, Nurse, Hospital, Etc.) Negligence

In order to “prove” negligence in a medical malpractice case an injured patient must show that there was an existence of a duty owed by the health care professional to the patient (for example, a doctor/patient relationship-this is usually not difficult ); The applicable standard of care, and the health care professional’s deviation from that standard, which is a breach of the duty owed the patient (this can be challenging and usually requires expert opinion); A causal connection between the health care professional’s deviation from the standard of care and the patient’s injury (this at times can be quite challenging, depending upon the circumstances).

A patient and their lawyer are often presented with nothing more to base the patient’s claim on then the healthcare provider’s own notes, which often is not only cryptic but self-serving. There is an old saying “if it is not in the chart it did not happen.” This can be both good and bad but either way one is often stuck with whatever the records show. Very few healthcare providers are going to accept responsibility, at least initially, for a mistake they have made. While information on the internet and medical textbooks may list multiple ways for treating a specific injury, illness, or disease an expert is usually necessary to establish negligence, breach and causation.

To prevail a patient and their lawyer must show that the healthcare provider’s (doctor, nurse, hospital, etc. ) conduct fell below an accepted standard of medical care. We generally need expert testimony to establish the standard of care. As well, expert testimony is required to show how the healthcare provided failed to meet the standard of care.

As side from negligent treatment or care, the healthcare provider can be held responsible for the negligent prescription of a medication or medical device if the healthcare provider ignored prescription recommendations such as prescribing an incorrect medication or dosage or a contraindication that resulted in injury to the patient. The healthcare provider has the duty of informing the patient of the risks and side effects of a medication or medical device they prescribe. As well, asking the patient questions to obtain all relevant information before prescribing medication or medical devices.
In many situations a healthcare provider fails to obtain a patient’s “informed consent” before administering a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action. In California the informed consent law is challenging because it applies a “reasonable person” standard. The law essentially requires the following:

“A patient’s consent to a medical procedure must be “informed”. A patient gives an “informed consent” only after the healthcare provider has fully explained the proposed treatment or procedure.

The healthcare provider must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. The healthcare provider must give the patient as much information as [he/she] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. A healthcare provider is not required to explain minor risks that are not likely to occur.”

The problem is if a healthcare provider fails to explain a risk but most folks would go forward with the treatment even if they knew the risk then a patient cannot win on that theory. By way of example a doctor fails to tell a patient that a colonoscopy can cause a puncture to the colon and a puncture occurs and had you known about the risk you would have declined the procedure, you are unlikely to win because most reasonable patients would have the procedure notwithstanding the risk.

The above is only some of the challenges an injured patient and his lawyer face.

A Patient Needs to Convince the Judge or Jury That the Healthcare Provider Was Negligent

Juries in California are tough on medical malpractice claims. Some jurisdictions are worse then others. The fact is that Healthcare providers win more than 80% of the time of the medical malpractice cases that go to trial. Many legal experts and trial lawyers differ on why this is so, but often times when something becomes too confusing the judge or jury defaults to the healthcare provider. The healthcare provider often times will explain “they did the best they could” and / or “there is more than one right way to provide care” and/or “that not all patients have a good outcome” or “there was something unusual about the patient.” I have heard it all and then some. Can you imagine some slams their car into the back your car and claims “they did the best they could.” Or someone runs a red light hits your car and then claims “if you had a different color car, they would have seen it”.

Nevertheless, judges and juries often give the healthcare provider the benefit of the doubt.

Retaining An Attorney

Nevertheless, healthcare providers are, at times, negligent. In 2010, the Office of Inspector General for Health and Human Services said that bad hospital care contributed to the deaths of 180,000 patients in Medicare alone in a given year. A study in a recent issue of the Journal of Patient Safety stated that between 210,000 and 440,000 patients each year who go to the hospital for care suffer some type of preventable harm that contributes to their death, the study says.

If the study is correct and there is no reason to believe it is not, that would make medical errors the third-leading cause of death in America, behind heart disease, which is the first, and cancer, which is second.

Therefore if you believe that you were the victim of medical malpractice, you should contact a qualified medical malpractice lawyer immediately to learn your legal rights. But understand the challenges that your potential claim faces. Most medical malpractice attorneys offer at least an initial free consultation. Avail yourself of this valuable service. If you or someone you love has been injured because of medical malpractice / medical negligence please give me, Richard M. Katz, a call. Our office is ready to help you. Please call 626-796-6333.

ATV (all-terrain vehicles) Accidents – What You Need To Know

A car accident also known as a traffic collision, automobile accident, road traffic collision or car crash can be a terrible event. In the same vein, ATV (all-terrain vehicles)accidents can be devastating.

When a ATV collides with another vehicle, pedestrian, animal, road debris, or other stationary obstruction, such as a tree or utility pole or overturns the resulting collisions may cause injury, death, vehicle damage, and property damage.

A number of factors contribute to the risk of collision, including vehicle design, speed of operation, road design, road environment, driver skill and/or impairment, and driver behavior.

Vehicular collisions lead to death and disability as well as financial costs to both society and the individuals involved.

Since ATVs were introduced in the early 1970s, they have become increasingly popular. Many families use ATVs for weekend activities. But with increased use accidents and injuries have also increased. As reported by the Consumer Product Safety Commission, as of 2012 over 100,000 ATV injuries were recorded. It is estimated that 25,000 of these ATV related were to children younger than 16 years of age. Over 2,900 children died from ATV-related accidents between 1982 and 2012, .

ATVs especially older ones are so dangerous because of their design. As the result of safety concerns expressed by the federal government almost 30 years ago ATV manufacturers entered into a consent decree in 1988. In the consent decree, manufactures agreed to halt production of three-wheeled ATVs, to provide safety training for new owners, to place warning labels on their products, and to make recommendations about what size of ATV is appropriate for different age groups. In 1998 the consent decree expired but ATV manufacturers have pledged to continue to follow most of its provisions.

Nevertheless because ATVs generally get far less use the cars or trucks many older ATVs are still in use and very dangerous.

Whether an ATV was made before or after 1988, they still all have common safety issues. Including many have no frame protecting the operator in the event of an accident. ATVs tend to ride on large, low-pressure tires that can have difficulty gripping the rough terrain over which they travel. Many have hand-operated brakes, which operated incorrectly can cause an ATV to overturn as one attempts to bring them to a stop.

As well ATVs have relatively large engines for their size and weight. Some ATVs are capable of speeds as high as 70 mph. At that speed while often going across broken and uneven terrain an accident is likely. Many ATVs are not designed for passengers but folks allow others to ride on the ATV again creating a potentially dangerous situation that can lead to death or injury.

Pre 1998 three-wheeled ATVs are less stable than the current four-wheeled ATVs, but even the four-wheeled models can be top-heavy and prone to serious rollover accidents causing death and injury.

Notwithstanding design changes the number of injuries and deaths per year attributable to ATV accidents continues to rise. The problem is twofold. One reason the number of injuries and deaths continue to rise is because the use of ATVs is increasing, it is a popular activity. AS well, ATV makers are building more powerful ATVs and marketing them to younger and younger children. Parents often and wrongfully believe these ATVs are “toys.”

One recent slick marketing tool is the “transitional” ATV. This ATV is sized between the smaller ATVs intended for children and a full-sized adult ATV. These “transitional” ATVs are marketed to generally teenage boys in the 14 to 15 year-old age group. And we all know how safety cautious 13 to 16 year-olds are. Kids in this age generally have no fear and without proper training, guidance and supervision there is an increasing likelihood of serious injuries or death.

As a group ATV manufacturers have fought any attempt to impose regulations on ATV ownership or use (such as age limits and mandatory helmet laws).

In my practice I have handled claims against various manufacturers of vehicles, including ATV and Motorcycles. If you or someone you know has been injured or killed while riding an ATV, please contact me, Richard M. Katz, Esq. at 626-796-6333 so that my office can help protect your legal rights. Visit us at our website https://www.lawyer-personal-injury-law.com

 

 

FOOD POISONING – FOODBORNE GERMS IS AN ONGOING THREAT

The Centers for Disease Control issued an alarming report today concerning the problems of foodborne germs.

Foodborne germs, that are antibiotic resistance is a continuing public health threat. The Centers for Disease Control and Prevention found that every year, antibiotic-resistant infections from foodborne germs cause an estimated 430,000 illnesses in the United States. Multi-drug resistant Salmonella, from food and other sources, causes about 100,000 illnesses in the United States each year.

Bacteria and viruses are the most common cause of food poisoning. The symptoms and severity of food poisoning vary, depending on which bacteria or virus has contaminated the food. The bacteria and viruses that cause the most illnesses, hospitalizations, and deaths in the United States are Salmonella, Norovirus (Norwalk Virus), Campylobacter, E. coli, Listeria and Clostridium perfringens. Foodborne illness in the United States causes an estimated 48 million illnesses and 3,000 deaths each year.

If you have eaten contaminated food, the onset of symptoms may occur within minutes to weeks and often presents itself as flu-like symptoms. Symptoms such as nausea, vomiting, diarrhea, or fever are common. The symptoms are often flu-like and many folks may not recognize that the illness is caused by pathogens or harmful bacteria.

Although recent data revealed that multi-drug resistant Salmonella decreased during the past decade. Unfortunately, Salmonella typhi, the germ that causes typhoid fever, resistance to quinolone drugs increased to 68 percent in 2012, raising concerns that one of the common treatments for typhoid fever may not work in many cases.

The Salmonella that has been linked to recent outbreaks associated with poultry. Is resistant to ceftriaxone, a cephalapsorin drug. Ceftriaxone resistance is a problem because it makes severe Salmonella infections harder to treat, especially in children.

A report from Centers for Disease Control NARMS compares resistance levels in human samples in 2012 to a baseline period of 2003-2007. According to Robert Tauxe, M.D., M.P.H, deputy director of CDC’s Division of Foodborne, Waterborne, and Environmental Diseases
“Our latest data show some progress in reducing resistance among some germs that make people sick but unfortunately we’re also seeing greater resistance in some pathogens, like certain types of Salmonella,” He said. “Infections with antibiotic-resistant germs are often more severe. These data will help doctors prescribe treatments that work and to help CDC and our public health partners identify and stop outbreaks caused by resistant germs faster and protect people’s health.”

The President’s budget for 2015 requests funding for CDC to improve early detection and tracking of multidrug resistant Salmonella and other urgent antibiotic resistance threats. The proposed initiative would increase CDC’s ability to test drug-resistant Salmonella. With a $30 million annual funding level over 5 years, CDC estimates that it could achieve a 25 percent reduction in multidrug resistant Salmonella infections, as well as significant reductions in other resistant infections.

What this all means is you need to be careful. Bacteria multiply rapidly between 40 °F and 140 °F. Remember to keep cold food cold and hot food hot. Store food in the refrigerator (40 °F or below) or freezer (0 °F or below). Always cook food to a safe minimum internal temperature.
Beef, pork, lamb and veal steaks, chops, and roasts should be cooked to a minimum internal temperature of 145 °F as measured with a food thermometer before removing meat from the heat source. For safety and quality, allow meat to rest for at least three minutes before carving or consuming. For raw ground ground beef, pork, lamb, and veal cook to an internal temperature of 160 °F as measured with a food thermometer. All poultry should be cooked to a minimum internal temperature of 165 °F as measured with a food thermometer.

In case of suspected foodborne illness use this general guidelines:
Preserve the evidence. If a portion of the suspect food is available, wrap it securely, mark “DANGER” and freeze it. Save all the packaging materials, such as cans or cartons. Write down the food type, the date, other identifying marks on the package, the time consumed, and when the onset of symptoms occurred. Save any identical unopened products.

Seek treatment as necessary. If the victim is in an “at risk” group, seek medical care immediately. Likewise, if symptoms persist or are severe (such as bloody diarrhea, excessive nausea and vomiting, or high temperature), call your doctor.

Call our office and we can assist you further. We are always here to help. Please call us, the Law Offices of Richard M. Katz at 626-796-6333. We are located at 1122 East Green Street, Pasadena, California 91106. We are here to assist you on your personal injury claims.

Medical Malpractice: Time Limitations

In California and is all states there exists strict time limits on when you can file a medical malpractice lawsuit. The time limits vary from state to state. So if you believe you have a medical malpractice claim whether in California or elsewhere it important to contact a local personal injury who handles medical negligence claims and he or she can tell you what the statute of limitations is.

A statute of limitations is the deadline for filing a lawsuit. Most lawsuits MUST be filed within a certain amount of time. In general, once the statute of limitations on a case “runs out,” the legal claim is not valid any longer. The tragedy is that if you have a valid claim but decide to pursue it after the time limit (statute of limitations) has run out, you are out of luck. I have at least one call a week in which that is the case, someone waited to long.

The lesson from all this is: do not keep your suspicions about medical negligence / medical malpractice a secret. If you suspect that you, or a loved one has been the victim of medical negligence, find a medical malpractice lawyer to discuss your concerns with. Most experienced medical malpractice attorneys will provide an initial free consultation either by telephone or in person. Often times he or she will be willing to look at some medical records or review a summary that you have prepared at no charge. Our office offers this service.

One of the most important things you will likely learn by consulting with a medical malpractice attorney is the type of the probable statue of limitations for your claim. For example, in California if a medical malpractice incident involves a private healthcare provider and the victim is an adult the California Code of Civil Procedure § 340.5 provides “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

For minors, not including birth related injuries, which is covered by a different statute, California Code of Civil Procedure § 340.5 provides for such minors as follows: “Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence. ”
For claims involving medical malpractice claims involving California state public / governmental entities the following general guideline applies to medical negligence claim being made against a a public entity (including the state of California, a county, city or special district), including employees. A written claim must be filed. The current law required that the written claim be filed within six (6) months of the loss, even if the claimant is a minor. If the claim is not approved, a legal action must then be filed within a specified time.

You should know that many medical malpractice lawyers will not take on a new case when a claimant / injured party contacts them shortly before a statute of limitations is likely to run. There are exceptions but you must understand that an personal injury attorney / medical malpractice attorney needs enough time to properly consider and evaluate your claim. It can often take weeks or months to obtain medical records and then evaluate them.

So, do not be a victim twice, if you believe you or a loved one has been hurt because of medical negligence, seek legal counsel. Please feel free to give me a call if you live in California and believe you may have a claim. You may contact me Richard M. Katz at 626-796-6333. Our website address is www.lawyer-personal-injury-law.com.

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