Medical Errors and Litigation: Investigation and Case Preparation

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Guidelines are provided here for sorting through the paperwork and bureaucracy involved in medical errors cases, useful for attorneys, healthcare professionals, and insurance agents. Coverage encompasses roots of patient injury, patient care algorithms, medical instruments and devices, client intake, and medical records, as well as identifying responsible parties, the roles of medical experts and consultants, standard of care experts, voir dire and medical malpractice, and settlement and alternatives to ...
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More About This Book

Overview

Guidelines are provided here for sorting through the paperwork and bureaucracy involved in medical errors cases, useful for attorneys, healthcare professionals, and insurance agents. Coverage encompasses roots of patient injury, patient care algorithms, medical instruments and devices, client intake, and medical records, as well as identifying responsible parties, the roles of medical experts and consultants, standard of care experts, voir dire and medical malpractice, and settlement and alternatives to litigation. Annotation © 2004 Book News, Inc., Portland, OR
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Product Details

  • ISBN-13: 9780913875803
  • Publisher: Lawyers & Judges Publishing Company, Inc.
  • Publication date: 6/28/2004
  • Pages: 388
  • Product dimensions: 6.20 (w) x 9.30 (h) x 1.20 (d)

Table of Contents

1. Roots of Patient Injury 1
1.1 Introduction 2
1.2 Incompetence 3
A. Competence on a continuum 5
B. Fatigue 6
C. The National Practitioner Data Bank 7
D. Healthcare Integrity and Protection Data Bank 7
1.3 Lack of Knowledge and Experience 9
A. Board certification 12
B. Nurse certification 13
1.4 Impaired Critical Thinking 14
A. Physicians' cognitive errors 14
B. Errors and critical thinking 16
C. Types of errors 17
1.5 Chemical Dependency 21
A. Substance abuse and physicians 21
B. Substance abuse and nurses 22
C. Profile of the Nurse Practice Act violator 24
1.6 Distractions and Interruptions 24
1.7 Communication Breakdowns 26
1.8 Increased Complexity of Medical Care 28
A. Failure to follow agency policy 28
B. Improper use of equipment 29
1.9 Inadequate Staffing 32
A. Need for nurses 32
B. Shortage of nurses 33
1.10 Improper Delegation by Physicians 38
A. Nurse practitioners 38
B. Nurse-midwives 40
C. Physician assistants 41
1.11 Improper Delegation by Nurses 42
A. Licensed practical nurses 42
B. Unlicensed assistive personnel 43
1.12 Poor Customer Relations and Patient Injury 45
A. Predisposing factors 45
B. Precipitating factors 47
1.13 Concealment of Errors 47
A. Failure to intervene 48
B. Concealment of errors 48
C. Mandatory reporting of errors 49
1.14 Summary 51
References 51
2. Codes of Medical Ethics and a Clinician's Duties to the Patient 59
2.1 Introduction 60
2.2 Autonomy of the Person 62
A. Informed consent 63
B. Exceptions to informed consent 65
C. Incompetence and surrogate decisionmakers 68
D. Advance directives 69
E. Paternalism redux 71
2.3 Nonmalfeasance (Primum Non Nocere) 73
A. Technical competence and the standard of care 74
B. Medical futility 76
C. Quality of life and the withdrawal of treatment 77
D. Patient abandonment 78
2.4 Beneficence 80
A. Research protocol and experimental treatments 80
B. Pain management 82
C. Physician-assisted suicide and euthanasia 83
2.5 Distributive Justice 84
A. Allocation of medical resources 85
B. Issues specific to organ transplants and donations 87
C. Treatment of underserved populations 88
2.6 Truthfulness 90
A. Privacy and confidentiality 90
B. Conflicts of interest between the patient and third parties 91
C. Conflicts concerning the physician's self-interest 92
D. The placebo effect 93
E. Elective and controversial procedures 94
2.7 Conclusion 95
Endnotes 95
3. Medical Instruments and Devices 105
3.1 Introduction 106
3.2 Overview 106
3.3 Case Study: The Unstoppable X-ray Machine 108
3.4 Product Defects 117
A. Manufacturing defects 117
B. Design defects 121
C. Defects in labeling 125
D. Defects induced by the user 131
3.5 Malpractice Claims in Medical Device Cases 132
3.6 Medical Device Regulations 133
A. Medical Device Amendments of 1976 133
B. The Safe Medical Devices Act of 1990 138
C. Safe Medical Device Amendment of 1992 139
D. Biomaterials Access Assurance Act of 1997 140
E. FDA Modernization Act of 1997 140
F. Restatement (Third) of Torts: Products Liability 140
3.7 Some Common Defenses 141
A. Learned intermediary doctrine 142
B. Preemption2 142
3.8 Investigation Checklist 144
3.9 The Process 146
A. The complaint 147
B. Discovery 160
C. Requests for jury voir dire 181
3.10 Conclusion 185
Endnotes 185
Resources 185
4. Making Sense of Standards of Care 189
4.1 Introduction 190
4.2 Elements of Malpractice and Their Relation to Standards of Care 195
A. Duty 195
B. Breach of duty 196
C. Causation 196
D. Injury 196
4.3 The Learning Curve 196
4.4 The Process 197
A. Recognition 198
B. Analysis 198
C. Research 201
D. Application 202
4.5 Sources of Standards of Care 202
A. Statutes and laws: Federal and state; case law 204
B. Regulations and agencies: Federal and state 206
C. Organizations--Private and professional 207
D. Academic curricula 211
E. Authoritative textbooks 212
F. Professional journals 213
G. Manufacturer's instructions 214
H. Institutional policies and procedures manuals, bylaws, and job descriptions 214
I. Expert witnesses 215
J. Treating physicians and other treating healthcare providers 216
4.6 Research Tools 217
4.7 Standard of Care: Application and Examples 219
A. "Clear-cut," single-source standards 219
B. "Off label" drug use: A deviation from the standard of care? 221
C. Medical folklore 223
D. Specific treatment issues 224
4.8 Conclusion 227
References and Recommended Reading 228
Cases 231
Web Sites Referenced in This Chapter 231
5. Gathering Information: Medical and Other Records 233
5.1 The Content of Medical Records 234
5.2 The Retention of Medical Records 235
5.3 The Confidentiality of Medical Records 235
5.4 Which Records to Obtain 236
A. Medical malpractice cases 236
B. Personal injury cases 237
C. Birth injury cases 237
D. Wrongful death cases 237
5.5 Obtaining Medical Records and Information 237
5.6 Locating Physicians, Hospitals and Healthcare Facility Addresses 241
5.7 Ensuring That the Record Is Complete 242
5.8 Subpoenaing Medical Records and Information 245
5.9 Conclusion 245
References 246
Suggested Reading 246
6. Analyzing Medical Records 247
6.1 Introduction 249
6.2 Obtaining Medical Records 249
6.3 Special Requests 252
6.4 Components of Medical Records 254
A. Special records 257
B. Indexing 258
6.5 Analysis of Medical Records 260
A. Initial approach 261
B. Comprehensive review 261
C. Review of hospital records 262
D. Review of outpatient records 271
6.6 Review of the Long-Term Care Record 275
A. Introduction 275
B. Components of the long-term care record 275
6.7 Review of Personal Injury Records 281
A. Rescue squad records 282
B. Emergency room records 283
C. Physician's office records 285
D. Analysis of physician factors affecting personal injury cases 286
E. Analysis of physical therapy factors affecting personal injury cases 287
F. Analysis of chiropractic care factors affecting personal injury cases 288
G. Analysis of attorney factors affecting personal injury cases 288
6.8 Altered Medical Records 288
A. Late entries 289
B. Missing records 289
C. Falsified entries 289
D. Late dictation 289
E. Discrepancies between nurses' and physicians' entries 289
F. Inaccurate medical billing 289
G. Pathology reports that do not correlate to procedures performed 290
H. Disparity between patient's account of events and entries in the medical records 290
6.9 Checklist 290
6.10 Summary 290
References 291
Appendix A. Glasgow Coma Scale 292
Appendix B. Medical Abbreviations 294
7. Finding Medical Experts and Consultants: The Internet Way 335
7.1 Qualities of an Expert 336
7.2 Background of Focused and Generic Expert Searches 337
A. Focused search 337
B. Generic search 339
7.3 Detail of Search Methods 341
A. PubMed review 341
B. Footnote review method 342
C. Selecting the expert with the AMA-PS opened to "specialty" 344
D. Use of jury verdict reports 347
E. Medical school faculty search 348
F. KnowX search 348
7.4 Final Steps before Making the Call 349
A. Check the medical and narcotic licenses and publications 349
B. Finding telephone numbers 349
C. Contacting the expert 350
D. Using the expert evaluation form 354
E. Sending the file 355
Appendix 358
8. Voir Dire and Medical Malpractice 361
8.1 Introduction 361
8.2 Alternate Methods of Selecting the Panel of Potential Jurors to Question from the Pool 363
8.3 Voir Dire: The Parameters 364
8.4 Objections During Voir Dire 365
8.5 Questioning the Panel 366
8.6 Challenges for Cause 367
8.7 Preserve the Record 367
8.8 Bias or Prejudice of the Juror 367
8.9 Eliciting Information from the Panel 368
8.10 Peremptory Challenges 369
8.11 Limitations on Peremptory Strikes 370
8.12 Pretext for Discrimination 372
8.13 Voir Dire in the Era of Medical Liability Reform 372
Endnotes 374
Index 379
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