Medical Malpractice – Misread Tests and Radiographic Studies

Medical Malpractice, do I have a case

Medical Malpractice Call

Almost once a week I get a call regarding a potential medical malpractice case involving a misread test or x-ray. A patient can suffer serious personal injury or even death because of misread x-rays or tests. In Pasadena, California the Law Offices of Richard M. Katz are all too familiar with such medical malpractice claims in which patients suffered personal injury or death.

 

Brain Cancer Study

Brain MRI Showing Cancer

I got a call yesterday from a possible client who is a patient at Kaiser Permanente. He believes he may have been a victim of medical negligence because of a misread radiographic study, resulting in at least a three year delay in treatment.

I also got a call from another potential client, yesterday, who believes mammograms may have been misread resulting in three and a half year delay in treatment.

When we have medical testing and in particular x-rays or other radiographic studies as a patient you expect to receive a correct reading of the study or test and a correct diagnosis of any health problems that you may have. Studies and tests are done to evaluate, guide treatment decisions and give you information about your health. As well, provide the opportunity for you to receive care for any problems that may affect your health and well-being.

Medical Malpractice if fine needle aspiration cytology is misread

Misread ultrasound can have devasting consequences.

Unfortunately, things can go wrong and medical malpractice happens. The failure to do proper testing or properly read an X-ray or other radiographic study (medical malpractice) can have devastating consequences. You may lose the opportunity for early intervention. When that opportunity is lost, you may experience a worsening of your medical condition. Sometimes, you may need more complicated, dangerous or expensive treatment as a result. In the most tragic cases, a person may even die from injuries or an illness that otherwise may have been treated or preventable. Severe personal injury or death can happen becasue of medical malpractice.

 

Medical Malpractice Misread Study

MRI Studies life saving if read correctly

Medical testing and x-rays or other radiographic studies are some tools that doctors use to diagnose patients with many different illnesses and injuries. Some examples of testing / procedures patients may undergo are X-rays, MRIs, CT-Scans, PET-Scans, Bone scans, Ultrasounds and Mammograms to name a few.

Some examples of tests or diagnostic work ups include Pap smears, Cancer screenings for cervical cancer, prostate cancer or other common cancers, Biopsies to detect if there is a malignant tumor or cancer cells in the body, Blood pressure tests, Allergy test, Cholesterol tests, Allergy test, Blood tests, Amniocentesis to detect fetal abnormalities, STD testing, including testing for HIV/AIDs, Fertility testing.

These studies and tests are done to figure out what is wrong with you. From broken bones to cancers to other life-threatening illnesses. Prenatal tests can tell you whether your baby is going to be born with a serious or fatal condition. Allergy tests can determine if whether you are allergic to anything that could cause a fatal reaction or whether your cholesterol or high blood pressure are putting you at risk of a heart attack. When a mistake is made on any of these studies or tests, the consequences may be far-reaching. Bad medicine can seriously adversely affect one’s health as a result.

The Law Offices of Richard M. Katz has handled many medical malpractice cases involving misread tests and misread X-Rays and other radiographic studies. Some of the cases we have handled resulted in serious injury or death as a result of an internal bleeding or leak going undetected or misread. Because of mammograms being misread, the progression of cancer spreading throughout the body. Worsening of cardiac problems from failure to see the signs of trouble in an artery. Brain damage because of an internal brain bleed being missed. As a result of the improper pap smear cervical cancer went undetected. The examples go on and on.

These and other consequences of medical malpractice can be devastating or fatal. One report found that 28 percent of 583 diagnostic mistakes were life threatening or had resulted in death or permanent disability. Another study estimated that fatal diagnostic errors in U.S. intensive care units result in 40,500 deaths each year.

Healthcare professionals make many different types of mistakes in reading tests and X-rays. Tests can be lost, patient sample mix ups have known to happen. There also situations where a doctor or other healthcare professional never follows up with a lab to see what became of the results or the results come into the office and no one ever reads the report. These are all examples of medical malpractice.

It is devastating when the healthcare providers who were supposed to protect and treat you make mistakes that cost you your health or the life of a loved one. Negligent healthcare providers must be held accountable.

Getting help from a personal injury lawyer who has a deep background in medical malpractice law is important. I have more than thirty-five years of experience. My office has a superb track record in handling medical malpractice claims. To learn more about how I can assist you with your case, please give me a call. My office serves clients throughout Pasadena, Los Angeles and California. Please give me, Richard M. Katz, a call at 626-796-6333.

What You Need to Know About Medical Malpractice Mediation

What You Need to Know About Medical Malpractice Mediation

You have been hurt or injured because of the medical negligence of a doctor, nurse, hospital or a health maintenance organization such as: Aetna Health of California, Inc., CIGNA HMO Kaiser Permanente, United Healthcare of California and Western Health Advantage.

Image: Wikimedia Commons, public domain

How are these medical malpractice cases resolved?
Sue the bastards!!! and Go To Trial!! NOT SO FAST

About 65% of all medical malpractice claims are dropped, dismissed, or withdrawn before trial or arbitration. There are a many reasons cases are dropped, dismissed, or withdrawn. Only about 10 % of all the medical malpractice case are resolved through trial or arbitration. However, the results for the victim / plaintiff is not encouraging, the physician or other healthcare provider wins in about 80% – 90% of the time.

 

Put it another way the victim/patient only wins 10% to 20% of the time. 80% -90% of the time the patient losses and often times faces an enormous cost bill from the defense, in cases that go to trial. Of all medical malpractice cases, roughly 25% of these claims are fairly settled during the pendency of the claim. According to a survey done by the American Medical Association in 2010, covering the years 2007-2008.

It has been my experience in medical malpractice cases that mediation is often helpful in resolving medical malpractice claims. Using mediation to resolve medical malpractice lawsuits clearly reduces cost, compensates a patient / victim for injury and often times will encourage changes in procedures at healthcare facilities to prevent recurrences of the mistake / negligence that led to the lawsuit.

Too often, however that avenue (mediation) for resolution goes unrealized. According to a study published in the Journal of Health, Politics, Policy and Law “Change will require medical leaders, hospital administrators, and malpractice insurers to temper their suspicion of the tort system sufficiently to approach medical errors and adverse events as learning opportunities, and to retain lawyers who embrace mediation as an opportunity to solve problems, show compassion, and improve care.”

Based upon my experience, anecdotal events, and some research about 70% to 80% of medical malpractice claims that went to mediation settled either during or following mediation for reasonable sums.

The MICRA Problem

California patients / victims face some unique problems. In 1975 the Medical Injury Compensation Reform Act (MICRA) of 1975 was a statute enacted by the California Legislature in September 1975 and signed into law by Governor Jerry Brown. The Supreme Court of California and the California Courts of Appeal have upheld most of MICRA. MICRA is the law in California.

MICRA places a cap on damages. Non-economic damages are limited to $250,000. Non-economic damages include claims for pain and suffering, loss of consortium and wrongful death. MICRA has no provisions to adjust the cap for inflation, so it has remained at $250,000 since California enacted it in 1975. Attorneys’ fees are capped and the fee decreases as the amount recovered increases. Recovered “means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. While economic damages are not capped, depending upon the age of the patient / victim past and future economic damages (loss of income/future loss of income) is difficult or impossible to prove. Likewise past medical expenses paid for by an insurance company (not an ERISA plan) while technically recoverable as a practical matter is not recoverable. Also large awards are subject to periodic payments, and it allows doctors to pay the award over time in certain circumstances. These various matters are covered in various sections to the California Codes. The codes include; Business & Professions Code Section 6146, Civil Code Sections 3333.1 and 3333.2, and Code of Civil Procedure Section 667.7.

I think you can see what challenges are presented. The wisdom of mediating medical malpractice cases is clear because:
The parties (plaintiff, defendant, insurance company and attorneys) control the outcome of the process.
Plaintiffs usually receive compensation relatively soon after their injury instead of waiting years to proceed with trial or arbitration.
Defendants (insurance carriers) do not have to pay for ongoing litigation, which can be considerable.
Even if mediation doesn’t resolve the case, it may create enough momentum to lead to a settlement.

So What is a Mediation?

Mediation is a method for settling disputes (medical malpractice claims) in which an experienced independent mediator helps the parties in achieving a mutually satisfactory settlement. A mediation will normally be attended only by the parties, their attorneys, the claims manager for the defendant’s insurance company and the mediator. Usually effective mediation can be completed in a day or less.

The mediation process is non-binding and entirely voluntary. The mediator does not have the power to “make a ruling” or “force a settlement.” The mediator’s role is to help the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them. A mediation session under California is completely private and confidential.

A mediation today typically begins with each “side” in separate rooms. The plaintiff / victim and her / his attorney in one room and the defendant, his / her attorney and often insurance company representatives in another room. The mediator usually first explains the format and discusses the confidential and non-binding nature of the proceedings with the plaintiff’s group. The mediator may ask the plaintiff’s attorneys what the case is about and ask about what issues are in dispute. Our office always prepares a very comprehensive brief about the case, including illustrations, citations and other evidence when necessary. Often our briefs are 20 to 30 pages, and we generally file them 10 days or longer before mediation. We also supply multiple copies to the defendants. Our office considers the mediation process as a very crucial step in assisting our clients to resolve claims fairly.

The mediator will then begin meeting with the parties in a series of private, confidential meetings. In these confidential meetings the mediator works with each party to scrutinize their respective positions and explore options for settlement. Normally, the mediator will do “shuttle diplomacy” with both sides for hours. Occasionally the parties will do a joint session, particularly in cases where the mediator believes it will be helpful. The shuttle diplomacy will continue either until the case settles or it becomes apparent that settlement cannot be reached. Even if case does not settle that does not mean it will not settle following the mediation. Often time mediators will continue to work with the parties to settle the case following the mediation.

According to the American Arbitration Association over 85% of all mediations result in a settlement. This is true even where all past attempts at settlement have failed. It is true even in case where the parties are pessimistic about the prospects of settlement.

The bottom line is that mediation is an effective tool. It brings all necessary parties to the bargaining table. Remember in private mediation both parties are their to try and resolve the claim. Mediation works because the mediator can help each side to “realistically” evaluate their positions and safely explore settlement options.

So if you have a medical malpractice case or a personal injury case and the opportunity for mediation presents itself it is an avenue that you may wish to explore. The resolution / settlement of your claim is in your hands. Remember though in serious injury cases it is always best to have an experience personal injury attorney on your side. As an experienced Pasadena personal injury / medical malpractice attorney, I have participated in hundreds of mediations. Should you have any questions, please call me at 626-796-6333 there is no charge for a consultation or you can contact me through my website https://www.lawyer-personal-injury-law.com. Remember the Law Offices of Richard M. Katz has been helping folks like you for more than 35 years.

Medication Errors: Don’t Let Them Happen to You

Medication errors like happen frequently. According to the well respected 2006 report “Preventing Medication Errors” from the Institute of Medicine, medication errors injure 1.5 million Americans each year and cost $3.5 billion in lost productivity, wages, and additional medical expenses.

We have all seen that almost yearly there is an announcement of some new wonder drug to treat a condition or disease. We have all seen the drug commercial and the all important disclaimer. No drug or medication is without some adverse risk or reaction. The increase in the number of drugs available and in the number of drugs the average person takes has led to an explosion in the number of errors made in prescriptions.

These errors can take all kinds of forms and can occur in many different ways. Sometimes a drug other than the one prescribed is provided, or the correct drug is provided in the wrong dosage. Sometimes a drug is prescribed that interacts negatively with another drug the person is taking and the patient is not warned of the danger. Sometimes the mistake is made by the doctor prescribing the drug, sometimes by the pharmacist filling the prescription, sometimes by the person administering the prescribed drug. Mistakes can occur in hospitals, nursing homes, and the corner drugstore. Regardless of the many different ways that prescription problems can occur, they all share one thing: They can be serious and potentially deadly.

In 2008 it was estimated by researchers that preventable adverse drug events kill 7,000 Americans annually. The researchers also concluded that medication errors that result in harm are the number-one cause of inpatient fatalities. Experts believe at least one medication error occurs per hospital patient every day. However, error rates vary widely among facilities. It has been found that medication errors pose the greatest risks and consequences in critical care settings, the reason for this is that usually patients in such settings are quite ill and do not have the resilience to respond adequately to an adverse event. Further, critical care patients often receive twice as many medications as patients on general floors. It is estimated that some 20% of critical care medication errors are potentially life-threatening, and half of these medical errors necessitate
additional life-sustaining treatments.

A undercover investigation televised by ABC News in 2007 reported on errors committed at pharmacies in the United States. The report, Pharmacy Errors: Unreported Epidemic?, drew attention to a the dangers associated with the proliferation of dispensing errors. The ABC News report showed the devastating consequences that are possible when medication errors are made. The ABC News Reported implied that overworked healthcare providers (pharmacists) are prone to making medical mistakes.

In a poll conducted by the National Patient Safety Foundation, 42% of respondents had been affected by a medical error, either personally or through a friend or relative, and 32% indicated that the error had a permanent negative effect on the patient’s health. See Medical Errors: The Scope of the Problem. Fact sheet. Rockville, MD: Agency for Healthcare Research and Quality; 2000. Publication No. AHRQ 00-P037. www.ahrq.gov/qual/errback.htm.

According to The Quality of Health Care in America Project, established by the National Academies’ Institute of Medicine (IOM), errors committed within the health care system have significant impact on patient safety and health care costs.

Some experts in the health industry consider the primary reason for the rise in medication errors to be financial—the doctors who write the prescriptions, the pharmacists who fill them, and the nurses who often administer them are pressured to serve more patients in less time, increasing profits, but also increasing the risk of an error. Others experts feel that the alarming rise in the marketing of drugs directly to patients is partially responsible. The advertisements are directed to a diverse audience, i.e. patients. It has been found that patients that see or read these advertisements are more likely to go to their doctors and demand a prescription for some drug they read about in a magazine ad or saw on television. Such patient driven requests leads to more prescriptions being written and greater chances for error.

A recent study concluded that out of 3 billion prescriptions filled each year, 51.5 million of them contain some kind of error. Although reliable statistics are hard to come by, these errors lead to thousands of unnecessary hospitalizations and hundreds of unnecessary deaths

Many factors can lead to medication errors. The Institute for Safe Medication Practices (ISMP) has identified 10 key elements with the greatest influence on medication use, noting that weaknesses in these can lead to medication errors. They are patient information, drug information, adequate communication, drug packaging, labeling, and nomenclature, medication storage, stock, standardization, and distribution, drug device acquisition, use, and monitoring, environmental factors, staff education and competency, patient education, quality processes and risk management.

Solutions to this medication error problem have been suggested. The first is also the easiest, healthcare providers should slow down and make sure the prescription is correct for the patient. Another is to install more safeguards, such as flagging a patient’s file if they are allergic to a particular medication. Another is for pharmacists to check that the prescription they are filling is appropriate some prescriptions are virtually illegible and the pharmacist is guessing. Another solution is to make sure that different drugs or different dosages don’t look similar, reducing the chance that the wrong medication will be given to or used by a patient.

Cases involving prescription errors and medication errors can involve claims of negligence, medical malpractice, and products liability, these are complex areas of the law. In my practice I have handled claims involving prescription errors and medication errors of all types. Some leading to death and serious injury. If you or someone you know has been injured or killed possibly because of a prescription error and/or medication errors please contact give me a call. Contact Richard M. Katz, Esq. at 626-796-6333 so that my office can help protect your legal rights. Visit us at our website at https://www.lawyer-personal-injury-law.com

What Everybody Ought To Know About The Kaiser Permanente Arbitration Process for Medical Malpractice Claims

It is no secret that Kaiser Permanente is the largest delivery system of its kind in the United States and has more than nine million members. In California they require all members of the organization to resolve all disputes related to claims for medical malpractice through a binding arbitration system. Members of Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) either directly or through their employer sign a binding arbitration agreement.

Many victims feel that somehow the arbitration process compromises their claim or ability to be compensated for their injuries. Clients often come to me and ask me “how do I get out of that arbitration system? ” Based upon my many years of experience and many victories against Kaiser Permanente, I assure them, that arbitrating a medical malpractice case against Kaiser Permanente depending on the circumstances of their claim may be beneficial.

A Brief History of Arbitrations
Our judicial system favors arbitrations. The arbitration statutory procedures are set forth in Code of Civil Procedure §1280, et seq. and the Kaiser Permanente arbitration rules. There are many state and federal court cases upholding the validity of private arbitrations, enforcement of private arbitration agreements, and enforcement of private arbitration awards.

Once arbitrations were problematic for claimants / plaintiffs because the healthcare provider / insurer had the money, manpower and volume of cases to manipulate the arbitration system to their advantage. This was especially true for Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group). This really was a problem and the propensity to manipulate the system was discussed in the case of Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.

In the California Supreme Court in the Engalla case found that Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group) was manipulating the arbitration system. The Court found they were manipulating the system. One method they used was delaying the selection of a neutral arbitrator, which made it difficult to get cases resolved timely. There were instances when the claimant died during the pendency of the claim because of delays.

In the face of having their entire arbitration system disbanded Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group) established the Office of the Independent Administrator (OIA). This independent law office acts as a third party overseeing the entire Kaiser Permanente arbitration system. They have established a screening process for arbitrators and require all parties to comply with the arbitration rules. I think the system is fair and equitable. However, for that to be true, you must have an attorney who is experienced with the process Kaiser Permanente arbitration process from selecting an arbitrator to presenting evidence. Frankly, it is my opinion that arbitrating a case correctly is just as demanding as going to trial.

The Skill of Your Attorney is Important
Your attorney must have the background, training and experience to understand and navigate the arbitration process. If he or she does have that experience then good results are probable. In all arbitration processes the “key” is getting a real “neutral” neutral arbitrator. In Kaiser Permanente arbitrations they pay half or all of the neutral arbitrator’s fees. The challenge is that Kaiser Permanente has hundreds of cases where a neutral arbitrator can serve. This raises the specter that a neutral arbitrator may find for Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) to “keep the cases coming.”

My experience with the neutral arbitrators that I have used has not shown that. I have had several cases in which neutrals have award 100s of thousands of dollars to more than 1 million dollars. It is my experience that there is many honest and honorable neutral arbitrators who will not be “unduly” swayed by the money issue. Based upon my experience and network of attorneys I know which neutrals are the truly neutral arbitrators. I generally do not have difficulty getting Kaiser Permanente to agree with the selection of a neutral to hear a case. As well, although both parties are entitled to party arbitrators, over the years I have moved away from using party arbitrators because I think it adds another layer of complexity to the case and places an adverse advocate in the room with the neutral.

If your attorney has the experience, knowledge and ability a claimant can get a reasonable neutral arbitrator and Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) will pay the arbitrator’s entire fees. This will save you thousands of dollars and you will get a timely fair hearing.

Arbitration v. Trial
My experience has caused me to conclude that if a claimant has a strong liability case, the claimant has a higher probability of a successful result in arbitration than before a jury. I believe this to be true because the neutral arbitrators or arbitration panels that I have used are knowledgeable professionals who understand medicine and understand the medical/legal issues and are not easily bamboozled by slick experts. Nor are they intimidated by doctors or lawyers.

With juries you are dealing with twelve lay people (in state court) whom we must educate often in complex areas of medicine. I think if they do not understand the medicine, Plaintiff loses. If they do not understand the complex and confusing jury instructions Plaintiff loses. If they do not like the Plaintiff, you will probably lose.

However, if you win the liability aspect of your medical malpractice case, with a jury, your general damages are limited to $250,000.00. So even if a jury were likely to award a larger damage award then an arbitrator, the law caps the general damages at $250,000.00. I have not personally had a situation in which we prevailed on liability in an arbitration and had the arbitrator give inadequate damages for pain and suffering. Not saying this is always true but that has been my experience.

Concluding Thoughts
There is a myriad of variables that present in all medical malpractice claims, whether against Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) or other healthcare provider. If you find yourself in the unfortunate situation of being a medical malpractice victim of Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) it is imperative that you choose a personal injury that has the skill training and experience to litigate in the arbitration venue. An attorney with experience and a good track record will give you the best possible chance of reaching your goal of successfully settling or winning your claim.

If you or someone you know has been a victim of medical negligence arising from the care and treatment provided to you by Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) please feel free to give me, Richard M. Katz, a call at 626-796-6333. We are found at 1122 East Green Street, Pasadena, CA. 91106.
My website is lawyer-personal-injury-law.com

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