Articles Posted in Medical News

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In what appears to be a change in 100 years of law, the 11th U.S. Court of Appeals in Atlanta has ruled that Royal Caribbean Cruise Lines can be successfully sued for medical malpractice by passengers who have been negligently injured or killed by the ship medical providers.

The federal appeals court refused to reconsider the decision that essentially opens the doors for cruise ship passengers to sue cruise lines for medical malpractice.

In a hearing that was held in the U.S. Court of Appeals for the 11th Circuit in Atlanta, Ga., the appeals court rejected a bid by Royal Caribbean Cruise Lines to revisit its ruling. The court noted that none of the 11th circuit judges voted in support of reconsideration.

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The Illinois Supreme Court is about to entertain two cases that may have great impact on how medical-malpractice cases are handled. In the case of Klaine v. Southern Illinois Hospital Services, the state Supreme Court will decide whether  a doctor’s application for hospital privileges to practice at a particular hospital are privileged and cannot be produced in discovery.

In this case, Carol Klaine filed a medical-malpractice lawsuit against Dr. Frederick Dreesen claiming that she was injured after a colon surgery performed by the doctor. Klaine also filed a claim against Southern Illinois Hospital Services alleging negligent credentialing of Dr. Dreesen.

During the discovery process, Klaine wanted the documents that Dr. Dreesen submitted as part of his application for staff privileges at Southern Illinois Hospital. The documents requested included information about his work history, claims history and insurance history, as well as the history of decisions and recommendations on his prior applications for hospital privileges.

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A Tuesday, July 15, 2014 a story in the Science section of the New York Times covered the circumstances in which doctors are faced with a dilemma in practice. They are reluctant to say to a patient or his or her family that they were sorry for a poor outcome in medical care. It has long been discussed whether doctors should approach patients and family members of patients to express regret or say the word “sorry” because of a bad outcome.

Many risk managers would stand in the way of doctors saying they were sorry for fear that those words might translate into an admission of wrongdoing, guilt and/or negligence.

The New York Times story, written by a physician, Abigail Zuger M.D., relates the medical issue to that of a plumber who worked in her home; a chain of events led to gushing water. Although the plumber wasn’t directly at fault for the problem, he happened to be at the wrong place at the wrong time when he turned a bolt, screw or valve that was old and ready to break at anytime. The issue there was whether the plumber could have said “I’m sorry” without taking responsibility. The writer of this story wrote that saying, “I’m sorry” is not an expression of anything other than empathy and not an admission of fault.

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In a 9th Circuit decision handed down in January 2013, the court of appeals found that the Medical Device Amendments (MDA) to the Federal Food, Drug and Cosmetics Act were not a wedge to prevent a plaintiff from making a state negligence claim against Medtronic. In a series of previous cases dating back to 2008, defendants, manufacturers and distributors of medical devices were armed with preemption defenses as a result of the cases of Riegel v. Medtronic, Inc. and bolstered by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.  Because of the conflicts in the different U.S. Circuit Courts, there is a good possibility that the U.S. Supreme Court will take up these cases to clarify this litigation and rectify the conflict in the districts.

In the Stengel v. Medtronic case, the 9th Circuit held that the plaintiff’s claim of state law negligence for the defendant’s choosing not to report known risks of its product to the FDA, was not expressly nor impliedly preempted by the Medical Device Amendments to the Federal Food, Drug and Cosmetic Act.

In the Stengel case, Stengel had a Medtronic pump implanted in his abdomen to control pain he had in his back. Unfortunately, an inflammatory mass formed at the tip of the pump’s catheter that caused permanent paraplegia. 

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The U.S. Department of Labor reports that in 2008 only 12% of doctors were self-employed. With the implementation of the Affordable Care Act (ACA) and other healthcare reforms, the future of employment by physicians in hospitals will be overtaking the past trends. Hospital employment of doctors is expected to increase between 10 and 25% over the next five years. 

At the same time that employment of doctors is increasing in hospitals, the numbers of physicians practicing on their own is declining. This data comes from the Physician Compensation and Production Survey from the Medical Group Management Association (2003-2009) report. According to that report, physician-owned practices declined from 70% in 2002 to just under 50% by the year 2008.  In contrast, by 2008, hospital ownership of physician practices exceeded the percentage of physician practice sowned by physicians.  Hospital ownership of physician practices in 2002 was only slightly more than 20%.

Back in the 1990s, hospitals and health systems were employing primary care physicians more so than medical specialists because it was thought that the healthcare model of the future would ensure that primary care physicians would be gatekeepers to health care. Because of reform and the ACA, that trend has changed.  The rate of increase in employment of primary care physicians by hospitals and specialists is about equal now.  That is because the ACA does not promote a primary care gatekeeper model. The lowest cost resource at the earliest point of medical care means that specialists will be directed to the patient instead of through the primary care physician.

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In a May 16, 2013 New York Times opinion page editorial, written by assistant professor of law at the University of California, Los Angeles, Joanna  C. Schwartz, discussed the Affordable Care Act in relation to medical malpractice lawsuits. The article was titled, “Learning from Litigation.” The thrust of the article is that new evidence contradicts the “conventional wisdom that malpractice litigation compromises the patient safety . . .”  Professor Schwartz says that the opposite appears to be occurring;  that with more openness and transparency, hospitals are responding to the risk of litigation in positive ways.

Professor Schwartz interviewed dozens of hospital risk managers who confirmed that a hospital’s approach to lawsuits has begun to change. She says that hospitals have become more open to handling medical errors up front and are apologizing to patients when mistakes do happen in some cases.

The given reason that hospitals are more open to these types of solutions is that in disclosing errors up front, hospitals and patients tend to resolve matters much earlier, reasonably and much more cost effectively. 

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A new study shows that energy drinks may increase blood pressure and lead to a dangerously high heartbeat.

The study is an analysis of seven previous studies. It showed that these drinks appeared to disturb the heart’s natural rhythm. Over time, the drinks may lead to an irregular heartbeat or death and raise blood pressure, according to the study. The study results were presented by the American Heart Association on March 21 during a convention in New Orleans.

Two commonly sold energy drinks are Monster Energy Assault and Rockstar.

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More Yasmin birth control lawsuits have made their way through the court system against the manufacturer Bayer. According to a recent report, Bayer has settled many cases and paid a reported $402 million setting aside another $600 million for future settlements. Approximately 11,000 lawsuits have been filed in the federal multidistrict litigation consolidated in the Southern District of Illinois.

Some of the lawsuits brought by injured plaintiffs are for blood clots while others claimed gall bladder problems.

Bellwether trials, those cases found to be most meritorious, were scheduled to go to trial early in 2012. But the parties instead wanted to mediate cases resulting in settlements in at least some of them. Other settlements have been reached in blood clot lawsuits, but there have been no settlements of gall bladder claims.

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GlaxoSmithKline has settled with 38 state attorney generals for $90 million in connection with its unfair and deceptive promotion of a diabetes drug, Avandia. Illinois Attorney General Lisa Madigan and Oregon Attorney General Ellen Rosenblum led the way in the allegations that GlaxoSmithKline marketed its brand-name medication, Avandia, to treat Type 2 diabetes.

The attorney generals alleged that GlaxoSmithKline misrepresented the drug’s safety or left out facts about its effects on cholesterol and cardiovascular health.

“Our investigation demonstrated that GlaxoSmithKline had little regard for the facts or for the health and safety of the patients it targeted with its misleading marketing,” Illinois Attorney General Madigan stated.

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A new Finnish study suggests that high blood levels of lycopene may significantly reduce the risk of stroke. Vegetables, especially tomatoes, are a significant source of lycopene.

The analysis was published in the journal Neurology, prospectively followed 1,031 men ages 46 to 55, measuring their blood levels of five antioxidants and recording incidents of stroke.

According to the journal, serum concentrations of carotenoids retinol and α-tocopherol were measured by high-performance liquid chromatography. The association between the serum concentrations of lycopene α-carotene, β-carotene, α-tocopherol, and retinol and the risk of strokes was studied by using Cox proportional hazards models.

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