It’s usually understood that when a healthcare provider makes a mistake doing something that any lay person can do, the case is one of simple negligence, not medical malpractice. There’s an extremely important difference. Medical negligence must be proven through the testimony of a medical expert. In some states, damages for medical malpractice are capped. Simple negligence, on the other hand, is conduct that falls below what a reasonable person—not an expert—would do. Damages are usually left to the jury’s good judgment.

Texas law as interpreted in a recent case, however, seems to confuse the two standards—leading to what appears to be a gross injustice. In Marks v. St. Luke’s Hospital, the Texas Supreme Court ruled narrowly that hospital injuries unrelated to doctor error may still be subject to the state’s onerous medical malpractice requirements and caps.

The patient/plaintiff alleged that he fell because of a broken hospital bed footboard. He brought a premises liability claim, which is not subject to the medical malpractice rules imposed by Texas law on physician negligence claims. Reversing an earlier ruling upholding the plaintiff’s claims, the court withdrew its prior opinion and upheld the claim’s dismissal. The court reasoned that “[m]edical equipment specific to a particular patient’s care or treatment is an integral and inseparable part of the health care services provided. When the unsafe or defective condition of that equipment injures the patient, the gravamen of the resulting cause of action is a health care liability claim.”

It is difficult to see how a broken piece of hospital room furniture is “integral and indispensable” to medical care. Under the court’s reasoning, a broken thermostat in a patient’s room that allowed the room to become cold enough to cause pneumonia would be treated the same way as a failed IV pump. Is a wet floor that the patient must shuffle across during hospital admission “integral” to the care that he or she receives once in his or her room?

Texas appellate courts have applied similar reasoning Texas appellate courts to find that Texas medical malpractice “tort reform” covered claims by a patient who was sexually assaulted during an exam and by a patient suing a doctor for disclosure of confidential information. The Austin plaintiffs’ law firm Perlmutter & Schuelke has noted that decisions such as these and the recent Marks case create ” a strange anomaly. If a third party visitor to a hospital or doctor’s office is sexually assaulted by another patient or a staff member, that visitor has an assault claim. But a patient is limited to a medical malpractice claim. Similarly, if a visitor goes to see someone in the hospital and is sitting on a bed and it collapses, that visitor has a products liability or premises defect claim. But, again, a patient is limited to a medical malpractice claim. In each case, the stranger receives more protection from the law than the actual patient.” What appears broken here isn’t just a hospital bed.

Portland Medical Malpractice Lawyer
If a broken bed or anything else has harmed you or loved ones during a hospital or doctor visit, contact us. Oregon medical negligence attorney Dane E. Johnson offers a no-cost, no-obligation case evaluation. Call us at (503) 975-8298 or contact us online.

Operating room mistakes appear to remain a widespread medical malpractice problem. A recent report on surgical error medical negligence noted doctors removing a cancer patient’s healthy kidney while leaving the diseased one behind, removing the wrong patient’s appendix, and operating on a patient’s wrong side.

Serious consequences of surgical error

Surgical team members may also cause or contribute to devastating personal injury or wrongful death. A serious mistake by an anesthesiologist may cause severe and permanent brain damage. Even a nurse’s failure to keep a correct count of tools can leave a patient with retained surgical instruments or sponges, cause a serious post-surgery infection, and require the pain of a second surgery.

A 2006 article published in the medical journal Archives of Surgery concluded that the following types of surgical errors occur across all medical specialties:

  • wrong side surgery errors
  • wrong site surgery errors
  • wrong surgical procedure errors
  • wrong patient errors

High numbers of medical mistakes were noted in orthopedic and dental surgery. Another 2006 study showed that sixty-five percent of surgical mistake cases examined involved significant or major injury, and twenty-three percent involved death. Surgeon-reviewers examined the litigation file and medical record in 444 malpractice cases and identified surgical errors that resulted in patient injury in more than half of these claims.

Time limits on surgical mistake claims

Serious surgical errors such as removing the wrong limb or organ or operating on the wrong part of the body may result from what should be easily avoidable clerical mistakes by surgeons or support staff. Healthcare providers must be held accountable when such unnecessary errors cause harm. The time period for filing a claim for surgical negligence or any other medical malpractice claim in Oregon, however, is only two years.

If you have suffered due to misdiagnosis or surgical errors, our law firm may be able to help.

If you or loved ones believe that a surgical mistake of any kind has occurred, consult an Oregon medical malpractice lawyer immediately. Your potential surgery error case can be evaluated by our Portland law firm at no cost. Call us toll free at (800) 975-8298 or contact us online for a free confidential initial consultation. There are no attorneys’ fees unless we recover compensation for you.

A new U.S. Senate Committee on Finance staff report suggests that GlaxoSmithKline (“GSK”) has known for several years that there were possible cardiac risks associated with the diabetes drug Avandia (rosiglitazone), once one of the drug manufacturer’s most financially successful products. Such knowledge, the report alleges, imposed a duty to warn patients and the U.S. Food and Drug Administration (“FDA”) about concerns over the link between Avandia and heart attacks.

A study published in the New England Journal of Medicine in May 2007 showed a link between Avandia and heart attacks, finding a 43 percent higher risk of heart attack for those taking Avandia compared to those taking other diabetes drugs or no diabetes medication. The new committee report, however, found that “GSK executives attempted to intimidate independent physicians, focused on strategies to minimize or misrepresent findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that a competing drug might reduce cardiovascular risk.”

The FDA is now reviewing data submitted in August 2009 from a large, long-term study on possible heart-related risks with Avandia. It has estimated that the drug caused 83,000 heart attacks between 1999 and 2007. But the FDA has emphasized that it has not made any new conclusions or recommendations about the use of rosiglitazone in the treatment of type 2 diabetes. It has advised that patients prescribed Avandia should not stop taking their medication without first talking with their health care professionals.

If Avandia is an example of a pharmaceutical company putting profits over people, patients should rightly be extremely concerned. Such corporate choices can lead to serious injuries and death. Contact your doctor immediately if you have concerns about an Avandia prescription.

If you or a loved one have been harmed after taking a prescribed medication, contact a prescription drug lawyer and medical malpractice attorney. Our Portland, Oregon personal injury law firm is currently investigating product liability claims involving personal injury or death related to Avandia, Byetta, or other prescription drugs used in the diabetes treatment. The Law Office of Dane E. Johnson provides a no-cost, no-obligation legal consultation. Call us toll free at (800) 714-3204 or reach us through our online attorney contact form here.

Related Web Resources
Staff of S. Comm. on Finance, 111th Cong., Report on GlaxoSmithKline and the Diabetes Drug Avandia (Comm. Print 2010).
FDA, Consumer Updates, Safety Review of Avandia (Rosiglitazone)

Failure to diagnose is an especially harmful form of medical malpractice when cancer is the condition affected by the doctor’s negligence. A successful cancer treatment depends almost entirely on a prompt and reliable diagnosis. If such a diagnosis is made, a malignant tumor may be detected during an earlier and more treatable stage. But if an imaging study, biopsy, or other diagnostic test is not ordered or if such tests are misinterpreted, a critical opportunity for a person facing cancer to overcome it may be lost.

Cancer’s serious risk means that most patients place their care and trust in the hands of physicians specializing in oncology. The initial diagnosis, however, is generally the responsibility of the treating physician, who is probably a general practice doctor. Because most people do not present to oncologists until referred by a primary health care provider, the “regular doctor” must be prepared to act responsibly in his or her role as “gatekeeper.” If there is a failure to perform to the necessary medical standard of care, the patient may not be sent to the specialist promptly.

If there is a claim for negligence in cancer diagnosis, it is likely to be based on the failure to make a cancer diagnosis, or failure to make such a diagnosis in a timely manner. The gatekeeper physician’s failures may allow cancer to metastasize, meaning to spread from the primary site in the body to another organ or system. If given the opportunity to advance to metastasis, cancer is likely to cut life expectancy short significantly. If aggressive surgery or other therapies are possible, the patient may survive. He or she may have to endure extreme pain, perhaps even facing the loss of a limb or bone which must be sacrificed to prevent the cancer from spreading further. If such harms would have been avoided had appropriate or sufficient diagnostic tests been performed and interpreted, a failure to diagnose cancer claim may be possible.

A claim based on misdiagnosis may also occur. If the gatekeeper physician does order diagnostic tests such as an MRI or biopsy, a radiologist or pathologist may err in interpreting the image or specimen information. The result may be a cancer diagnosis where the disease does not actually exist. If misdiagnosis is not corrected, the patient may be exposed to unnecessary surgery, chemotherapy, or radiation treatment.

If cancer has affected the lives of you or a loved one and you suspect that failure to diagnose or misdiagnosis may have occurred, contact a medical malpractice lawyer immediately. An Oregon medical malpractice case must generally be filed within two years of the date on which the negligence occurred. Portland medical malpractice attorney Dane Johnson provides a consultation to discuss injuries and legal rights at no cost and with no obligation. Contact the Law Office of Dane E. Johnson toll free at (800) 714-3204 or online.

Related Web Resources
American Cancer Society, Cancer Prevention and Early Detection Worksheet for Women
American Cancer Society, Cancer Prevention and Early Detection Worksheet for Men

Vasa previa is a medical condition in which blood vessels from the placenta or umbilical cord cross the birth canal opening ahead of the fetus. As birth approaches and the cervix dilates, these vessels may tear, with massive and rapid blood loss in the fetus. A gelatin-like tissue called Wharton’s jelly lines the umbilical cord and normally cushions and protects the fetal blood vessels inside. Sometimes, however, these vessels do not insert into the center of the placenta as they should. Instead, they travel across the fetal the membranes to the placenta before joining the cord. Wharton’s jelly does not protect the exposed vessels, and when they are outside the tissue in the placenta, they are at risk of tearing or compression. If the blood vessels do not tear, they may become trapped and pinched between the fetus and the birth canal walls, depriving the fetus of oxygen and causing permanent brain damage.

When vasa previa goes undiagnosed until delivery, the majority of affected babies are stillborn. If vasa previa is diagnosed properly, however, a cesarean delivery can be performed before labor begins and the blood vessels are torn or pinched. This procedure can save the baby’s life or prevent irreversible harm to the brain. Failure to diagnose vasa previa may lead to a fatal delay in the obstetrician performing a caesarean section.

Unfortunately, according to the International Vasa Previa Foundation, “physicians are often poorly educated about vasa previa; furthermore they often consider the condition to be rare. Therefore, they are often caught totally unaware when vasa previa does occur.” Studies have shown, however, that early detection of vasa previa can be made using transvaginal sonography, preferably in combination with color Doppler ultrasound. Prenatal sonographic screening using targeted scans for vasa previa has been found likely to significantly impact the likelihood of fetal death or serious injury.

Whether an obstetrician failed to diagnose vasa previa is a complex medical question. Even if failure to diagnose occurred, an attorney must determine whether the doctor’s conduct fell below the required medical standard of care. These complexities make a medical malpractice lawyer essential in every case where medical negligence causing birth injury is suspected.

If you believe that vasa previa or another birth injury may have contributed to the death or brain damage of an infant, Portland medical malpractice lawyer Dane Johnson provides a free, confidential, and compassionate consultation to answer your questions and discuss your legal rights. Call the Law Office of Dane E. Johnson toll free at (800) 714-3204. If you prefer, you may also communicate with us about your potential case online.

Related Web Resources
International Vasa Previa Society

The U.S. Food and Drug Administration (“FDA”) has announced a Class I recall of Exel/Exelint Huber needles, Exel/Exelint Huber Infusion Sets and Exel/Exelint “Securetouch+” Safety Huber Infusion Sets manufactured by Nipro Medical Corporation for Exelint International Corporation. The recall affects over two million medical products that may put patients at risk.

The International Sharps Injury Prevention Society describes a Huber needle as one that is used to administer chemotherapy, antibiotics, and total parenteral nutrition through an implanted IV port. Huber needles are used to access ports implanted under the skin of chronically ill patients for repeated access to veins. They may remain in the port for extended periods, making them difficult to remove. Huber needles are designed with guards that retract or shield the needle upon removal from the implanted port, preventing the potential of recoil resulting in an accidental needlestick.

Needles subject to the recall, however, were found to cut and dislodge silicone cores or slivers from the ports into which they are inserted. Needles penetrating ports could carry this dislodged silicone into patients’ bodies. The recall’s designation as Class I—the most serious—indicates that the defective medical devices may also carry a high risk of death or injury. The FDA notes that if the needle pushes a silicone sliver into a patient, it could lead to decreased effectiveness of the port, infection, necrosis, swelling, and embolization, which may result in pulmonary embolism, limb ischemia (inadequate blood supply), stroke, and local extravasation (forcing out) of medication such as chemotherapy or other caustic material.

The FDA has not yet received any adverse event reports related to silicone foreign bodies released in patients by Huber needles. It warned, however, that it may be very difficult for clinicians to associate adverse patient outcomes with the use of defective Huber needles, leading to potential under-reporting.

If you or loved ones may have been injured after receiving injections through an implanted port, contact Portland medical malpractice lawyer and Oregon personal injury attorney Dane Johnson. The Law Office of Dane E. Johnson can help determine whether a defective Exel Safety Huber Infusion Set was involved. If so, then you may be entitled to compensation. We provide a free case consultation to evaluate potential claims and discuss legal rights. Call us toll free at (800) 714-3204 or online.

Related Web Resources
FDA, Press Release, FDA Announces Class I Recall of Certain Infusion Set Needles (Jan. 26, 2010).

The medical definition of anesthesia refers to the loss of sensation resulting from pharmacologic depression of nerve function. Pharmacologic depression, or the use of medications to depress particular aspects of the nervous system, however, results from human administration. This is the work of the anesthesiologist. It is also the source of most of the anesthesia errors that cause serious injury and death in hospital patients.

Studies have shown that the overwhelming majority of preventable anesthesia incidents involved human error. Opportunities for error are abundant. Breathing-circuit disconnections, unintended changes in gas flow, and drug syringe errors have occurred repeatedly.

Syringe swaps, in which two syringes are improperly switched and the wrong drug administered, can have catastrophic consequences. Other errors that can cause serious personal injury can include premature extubation of the patient’s trachea, mismanagement of fluid replacement, improper or negligent administration of oxygen during surgery, and dangerously prolonged sedation. Patient harm or death may also result from anesthesiologists or residents with inadequate experience, insufficient familiarity with equipment or the specific surgical procedure, inadequate communication, fatigue, and distraction.

Overt equipment failures are less common. Equipment designed with controls that are indistinguishable without visual inspection, however, may contribute to human error. Crowded, busy operating rooms may hamper the ability to read and adjust equipment quickly and accurately.

Anesthesiologist negligence may also lead to extreme emotional trauma. Delivery of anesthesia gas may be interrupted by exhaustion of a gas cylinder, inadvertent disconnection from a central gas supply, or the unintended closing of a valve. Such an interruption can lead to complications and the development of post-traumatic stress disorder. The patient may awaken during the procedure, a terrifying experience in which he or she may be paralyzed, unable to speak, and helpless to communicate his or her awareness. A patient who tries to signal the anesthesiologist by moving may face the administration of paralytic drugs while conscious. One anesthesiology awareness victim has described this as feeling “like ignited jet fuel coursing through your veins.”

Medical personnel failing to deliver an adequate level of care may be liable for medical negligence. Oregon courts define medical negligence, or malpractice, as the failure of a medical professional to meet the standard of care used in the reasonable practice of the medical profession in the same or a similar community. Like surgeons, nurses, and other skilled medical professionals, anesthesiologists must exercise due care to avoid preventable mishaps that may have serious or even grave outcomes.

If an anesthesia error has inflicted serious harm on you or a loved one or claimed a life, compensation for the harm and suffering may be possible. Contact a Portland medical malpractice lawyer promptly. Attorney Dane Johnson provides a free confidential consultation to answer your questions and discuss your legal rights. Call the Law Office of Dane E. Johnson toll free at (800) 714-3204 or tell us about your potential anesthesiology error case online.

Related Web Resources
Anesthesia Awareness Campaign, Inc.

Portland, Oregon personal injury lawyer and medical malpractice attorney Dane Johnson is pleased to announce the newest online publication of the Law Office of Dane E. Johnson, LLC.  The Oregon Medical Malpractice blog is dedicated to helping Oregonians harmed by medical negligence understand the legal issues surrounding hospital and health care provider mistakes that can cause serious personal injuries and wrongful death. This blog will feature information on topics including:

  • Anesthesia Error
  • Birth Injury
  • Brachial Plexus Injury
  • Cerebral Palsy
  • Defective Medical Devices
  • Dental Malpractice
  • Emergency Room Error
  • Erbs Palsy
  • Failure to Diagnose
  • Gastric Bypass Error
  • Hospital Malpractice
  • Lasik Surgery Error
  • Medication Error
  • Misdiagnosis
  • Nurse Error
  • Ob/Gyn Error
  • Pediatric Error
  • Prescription Drug Error
  • Surgery Malpractice

If a medical professional’s negligence has caused harm to you or a loved one, the Oregon medical malpractice and personal injury Law Office of Dane E. Johnson offers an attorney consultation at no cost and with no obligation. Contact us toll free at (800) 714-3204 or in Oregon at (503) 975-8298. You may also use our Portland injury lawyer contact form. We look forward to speaking with you and to informing you through this blog.