Medical Justice® aggressively addresses the interest of doctors within the changing landscape of medical practice. Our mission; to protect our members' most important assets - reputation, character and integrity - against frivolous medical malpractice lawsuits, Internet defamation and unwarranted demands for refunds.



Jun 26 2015

Foreign Bodies Left in the Body, Oh My…

Published by under Healthcare Reform

Some unintended foreign bodies left post-op in the body never create any problems. Some are associated with continued risk. And the law is all over the place in terms of how long a surgeon or facility is liable, if at all.
 
A recent New York case illustrates this point.
 
In New York, an adult has 2 ½ years from the date of the negligent event to initiate a medical malpractice case; an infant has 10 years. Now for the foreign body exception. The foreign object exception provides that such a case may be commenced within one year of the date of this discovery. This naturally extends the typical statute of limitations. A time frame limited to one year a patient discovers a foreign body could be decades after the original procedure.
 
A three year old underwent surgery to correct a congenital heart malformation. Intra-op, a catheter was placed in the left atrium to record pressures. Naturally, the patient had a collection of other lines that were placed and remained in-situ post-op. Three days post-op, while still in the ICU, lines were removed. The nursing notes stated the left atrial line possibly broke off and it was possible a portion remained in the body. Eight days later the boy was discharged from the hospital.
 
At age 18, he had a pacemaker inserted.
 
One year later he had valve replacement (with pig’s valve).
 
One year later, the patient suffered an embolic stroke. An echocardiogram revealed “small mobile filamentous masses” in the heart – “possibly suture material though clots could not be ruled out.”
 
At age 25, the patient suffered two transient ischemic attacks. His pacemaker battery was replaced.
 
An echocardiogram done at the time the battery was replaced revealed a left atrial foreign body. (Note, this was 22 years after his original surgery.) Exploratory surgery was performed and plastic tubing was identified and removed. The pathologist documented the catheter was 0.1 cm in diameter and 12 cm. in length.
 
The inevitable lawsuit caught three hospitals and five doctors in its net.
 
The defendants tried to defend arguing that the lawsuit was well beyond the statute of limitations. They argued that the foreign body exception did not apply because of how the “foreign body” was defined by New York law. The foreign object exception does not apply to “chemical compounds, fixation devices, or prosthetic aids or devices.” They argued that the catheter was a “fixation device”, not a foreign object, because it was intentionally placed inside the boy during the operation and served a continuing medical purpose beyond the procedure itself.
That’s creative lawyering.
 
The plaintiff argued that the catheters were placed to permit monitoring of pressures for management of fluid replacement, blood pressure, and prevention and/or treatment of congestive heart failure. The plaintiff continued the catheters had no treatment function, but rather, simply served as a conduit for information about the cardiovascular system. The young man’s expert concluded the catheters were not fixative devices because they did not secure body tissues one to another, or at least provide support to some structure within the body on either a permanent or temporary basis.
The patient lost. The court reasoned that the catheter was not a foreign object (and not entitled to lengthening the core statute of limitations) because it was left in the boy’s body deliberately with a continuing medical purpose.
 
The case was appealed.
 
No surprise.
 
The Appellate Division affirmed employing slightly different reasoning. The appellate court concluded that the catheter, which was deliberately inserted into the boy’s heart to monitor atrial pressure, was a fixation device within the meaning of the statute.
Onward to the highest Court of Appeals in NY. It reversed.
 
The court concluded that tangible items, such as clamps, scalpels, and sponges, introduced into a patient’s body solely to carry out or facilitate a surgical procedure are indeed “foreign objects” if left behind.
 
And, yes, fixation devices are not considered foreign objects. A failure to timely remove a fixation device (such as pedicle screws) does not transform it into a foreign object. Every fixation device is intentionally placed for a continuing (even if temporary) treatment purpose, but it does not follow that everything that is intentionally placed for a continuing treatment purpose is a fixation device.
 
The court reasoned that the catheter inserted in the patient’s left atrium was not a “fixation device.” It noted the catheter performed no securing or supporting role during or after surgery. The catheter was placed for an instrumental purpose, specifically, to allow medical personnel to monitor the boy’s atrial pressure. The catheter was analogous to tangible items like clamps introduced into a patient’s body solely to carry out a surgical procedure. Medical personnel did not intend to leave any tubing in the boy’s heart. The catheter remained in the boy’s body a few days after surgery, but not for post-surgery healing, only monitoring. The retained catheter fragment served no purpose. The court concluded that the boy left the hospital after an operation with therapeutically useless and potentially dangerous surgical paraphernalia lodged in his body.
 
The case was sent back down to the lower court to rule on the merits of claims of negligence.
 
Yes, a retained catheter is not a fixation device.
 
Walton v. Strong Mem’l Hosp., 2015 WL 3593821 (N.Y. June 10, 2015)

2 responses so far

Jun 19 2015

Notes from a Plaintiff’s Attorney: Avoiding liability in retention of medical records

Published by under Healthcare Reform

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

 

As we move to paperless practices, the problem of retaining physical records will be less relevant. But for at least the next decade doctors who are closing their practices must understand what to do with bulky patient records.

 

Here, physicians faced with this unwelcome burden are tempted to cut corners, a choice that carries real liability issues.

Continue Reading »

One response so far

Jun 12 2015

Personality Profile and Specialty Choice

Published by under Healthcare Reform

 

I’ve often wondered whether medical students are attracted to a particular specialty because of their personality type; or whether their personality adjusts and evolves based on their specialty choice.

 

The answer is it’s probably a bit of both.

 

One academic medical school website delved a little deeper into the question. They noted that surgeons, for example, are stereotyped as dominant, aggressive, uninhibited. Formal Myers-Briggs personality testing – which characterizes personalities into 1 of 16 profiles (more on that in a bit) noted surgeons were more extroverted, practical, social, competitive, and structured than those in “controllable lifestyle specialties.”[1] Surgeons were less creative.

 

Controllable lifestyle specialties were more introverted and less conforming than surgeons.

 

Primary care had the most diversity in personality type.

 

One medical school in Saudi Arabia (King Saud bin Abdulaziz University for Health Sciences) publishes “Guide for Specialty Selection Based on Personality Type.

 

There are many crucial factors to take into consideration when choosing a medical specialty. One of the most unifying variables, ranking at the top of the list, is a good personality match between the student and the specialty. Unfortunately, the majority of medical students do not realize the importance of matching their personality types and the medical specialties they are interested in. In addition, the bulk of medical students’ time is spent on lectures, studying and clinical work, as a result most students do not have time to spend on thinking about their own personality type. But at some point during medical school, the student should take some time to assess his values, character, and temperament in an honest way.

There are many tools to determine the personality type but we will discuss here the most popular and widely used psychological test in the world; the Myers-Briggs Type Indicator (MBTI).

 

In Myers-Briggs testing, 4 dimensions are evaluated. Each subject has one of two elements.

 

  Dimensions Elements
1 Favorite World Extroversion (E) or Introversion (I)
2 Information Sensing (S) or iNtuition (N)
3 Decision Thinking (T) or Feeling (F)
4 Structure Judgment (J) or Perception (P)

 

For Favorite world, do you prefer to focus on the outer world or your own world?

 

For Information, do you concentrate on what can be seen, heard, felt, smelled, or tasted? Or do you naturally read between the lines and look for the meaning in all things?

 

For Decision, how do you make a decision, and based on what? Do you prefer to make decisions using an impersonal approach; making decisions that make logical sense? Or do you prefer to make decisions based on personal values?

 

Finally, for Structure, what type of lifestyle do you prefer? Getting things decided or stay open for new options?

 

The formal Myers-Briggs instrument includes 93 forced choice questions. Forced choice means the subject has to choose one of two possible answers to each question. Example questions include

  1. I am most comfortable being (a) spontaneous; or (b) a planner
  2. Change for me is (a) difficult; or (b) easy.
  3. I prefer to work (a) alone; or (b) in a team.

 

While it’s probably a stretch to pigeonhole personality into one of 16 types, here they are:

 

ISTJ ISFJ INFJ INTJ
ISTP ISFP INFP INTP
ESTP ESFP ENFP ENTP
ESTJ ESFJ ENFJ ENTJ

 

Here is the abridged list of specialties the Saudi Arabian medical school recommended based on personality type:

 

 

 

 

What do you think? If you’ve been tested with Myers-Briggs survey, does the list conform to the specialty you chose?

[1] Controllable lifestyle specialties were defined as anesthesiology, dermatology, emergency medicine, ophthalmology, pathology, psychiatry, and radiology.

8 responses so far

Jun 05 2015

Notes from a Plaintiff’s Attorney: Liability to those who are not your patients

Published by under Healthcare Reform

We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

As most doctors know, a malpractice action is grounded in first establishing a physician-patient relationship. This is a fiduciary situation in which a duty of care is owed to the specific patient.

However, there are unusual cases where a third party sues a doctor for negligence. Here, liability has increasingly been found via general negligence principles.

Continue Reading »

5 responses so far

May 29 2015

Notes from a Plaintiff’s Attorney: Blowing the Whistle

Published by under Healthcare Reform

We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Blowing the whistle.” This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.

Continue Reading »

3 responses so far

May 22 2015

Family of Jahi McMath – Declared Brain Dead – Files Lawsuit

Published by under Healthcare Reform

This is a tough one.

 

Readers will remember the case of Jahi McMath, the unfortunate 13 year old who underwent an operation to treat sleep apnea, including tonsillectomy. Post-op Jahi was coughing up blood. The following morning her heart rate dropped and she went into cardiac arrest. Three days later she was declared brain dead. The family challenged the hospital’s decision to take the patient off the ventilator. The family won the right to transfer Jahi to an undisclosed location in New Jersey.

Continue Reading »

9 responses so far

Next »