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Author: Lauren Davis

Lauren E. Davis litigates complex medical malpractice and personal injury cases. She has handled cases from inception to trial in federal and state courts throughout Virginia. To speak with Lauren about your case, contact her at (540)985-0098.

Headlines highlight continuing problem of neglect

October 18, 2017

Some of my friends think I am on some kind of crusade, that I have taken on medical malpractice and nursing home neglect cases as a cause.  Maybe I have, but it’s with good reason.  If you doubt that, take a look at these two recent reports:

 

From The Roanoke Times: “Former medication aide at Covington facility convicted in overdose death of resident.”  A resident at an assisted living facility died of a medication overdose because of a medication that was given to him in error.  The facility employee who made the error was charged with and convicted of manslaughter, perhaps largely because after learning of her error, the prosecutor said she waited about 45 minutes before calling 911 and did not take other appropriate steps to help.

 

Or this, from the Boston Globe: “A nurse’s aide plays video games while a veteran dies at Bedford VA hospital.”  The headline speaks for itself.

 

Every case of negligence may not be so headline worthy, but every case does involve unnecessary and preventable harm to our society.  Call it a crusade or call it by whatever other name you’d like – I am grateful for the opportunity to address this real and substantial problem.

What do you mean I don’t have a case?

August 11, 2017

When people call us, they are generally emotional and hurt about what has happened to them.  That makes saying “no” one of the hardest things about my job, even when it is the right answer.   A “no” in this case generally comes in the form of recommending against pursuing a case.  

The truth is there is a lot more to pursuing a case than being able to prove each legal element.  There are many circumstances that affect our evaluation of a potential case.  We either recommend further investigation – or not – after weighing many things.  Unfortunately and understandably, despite our efforts to explain our thoughts, “no” is simply not easy to hear.

Some recent conversations have put the spotlight on this problem for me.  I am sharing some things here about our process in hopes that it might shed more light on how we analyze potential claims.

  • We care.  

We take our work seriously and we consider ourselves to be in the profession of helping people.  If we cannot help you, we believe the right thing to do is to let you know from the outset.  To better assess whether we can help you, we gather more initial information than you may expect.

  • We are not judging you for the work you do – or do not do.  

One piece of information we ask is whether you work and, if so, where you work and what you do.  There are several reasons this information is important.  If you have lost wages, that may increase the value of your claim.  In other words, from a monetary perspective, we may be able to show more financial loss which may make the case a better one for you to pursue.  The fact that you are employed, regardless of what you do, can be seen as a good thing if the consequences of someone’s negligence led or will lead you to miss work.

Also, certain companies who offer health insurance are entitled to be repaid for medical expenses they have paid.  That lien would then take away from what you would otherwise receive from a case.  If you do not work and are on disability (and likely receiving Medicare), Medicare also has a lien.  Medicaid and other insurers have liens.  If the liens are big enough, they can leave you with little or no recovery at the end of the day, even if the case is successful.

When we ask about your work, we are asking because it helps us get to important information.  

We are not judging you.

  • We do not expect you to be able to pay us our hourly rates.

When we ask about your work, we are also not assessing whether you can afford to pay our legal fees.

Almost without exception, our personal injury clients are not in a position to pay our legal fees because of the very circumstances that bring them to us.  For that reason, we handle personal injury claims on a contingency fee basis.  That means that our clients do not pay us at all for our time (and do not owe any legal fees to us) unless their cases are successful. 

  • We are not perfect.

We do the best we can to understand the facts of your situation.  We cannot guarantee perfection in understanding everything.  After all, you are the one living through this.  We do, though, try incredibly hard.  And, in situations where we have missed something important, we are okay with you telling us that.

  • We use logic and reason.

When you call us, you are likely experiencing many emotions and trying to figure out what your future will look like.

Part of our job in evaluating a potential claim for you is to set aside emotion and, instead, to logically analyze the advantages and disadvantages of a potential claim.  If, in our opinion, the disadvantages outweigh the advantages, we will not recommend you pursue a claim.

  • You can get a second opinion.

When we give you our recommendation, it is just that.  You are entirely free to seek other opinions.  If you have concerns about how we have analyzed things, contacting another attorney is a great option.

  • We really do care.

To finish where we began, we take this work seriously.  We try to present our recommendations in an accurate and caring way because we really do care.

If you have questions about our intake and investigation process for personal injury, wrongful death, or medical malpractice cases in Virginia, please feel free to call.

Do I have a case? How much will it cost to get my records?

February 23, 2017

 

Potential medical malpractice clients ask us many important questions.  Here are two of them: Do I have a case?  How much will it cost to get my medical records?  

 

The first is not as easy to answer and the latter is thankfully getting much easier to answer.  Let us start with the not so easy one.

 

Do I have a case? 

 

We hear this question so often and, yet, it is such a hard question to answer – at least at first.

 

By the time of trial, we have worked to make cases clear, simple, and – hopefully – obviously meritorious.  But when we first hear from potential clients, that is rarely true.

 

To answer the question of whether someone has a case, we do several things.  One of the first and most important things we do is request and review the patient’s medical records.  We usually learn many facts that patients may not even know, things like:

 

  • how many different medications they received and how much of them,
  • the identities of people involved in their care, which usually numbers much higher than patients knew or expected,
  • what patients supposedly said to their doctors and nurses, and
  • vice versa, that is, what doctors and nurses supposedly said to their patients.

 

In addition to what the records say in black and white, we may also get a sense about what is going on between the lines.  For instance, a doctor may use language that suggests that he really likes a patient (or not so much).  Records can show whether a particular problem was within the range of something expected (or that it was very unexpected).  It may be clear that a nurse was overburdened with too many patients.  It may appear that doctors or nurses are frustrated with one another.

 

As important as the records are to reviewing a potential case, we almost always will find mistakes in the records or things entirely left out, for instance, a non-smoker documented as a smoker, a woman with a lump on her left breast documented as being on her right, or an important medication allergy that is missing.

 

These things make a big difference when we assess whether someone has a case.

 

Once we explain the importance of the medical records, we usually hear a second, related question.

 

How much will it cost to get my records? 

 

This is a very common question and a very good one.  Most people who call on us are in difficult financial situations because of the medical care that has led them to us in the first place.  Until the last few years, the cost of getting medical records was quite high, sometimes even cost prohibitive.  With long hospitalizations, we would often see bills in the thousands of dollars.  That was when we received the records on paper.

 

Now, in large part thanks to some new federal law, patients can request and receive their records electronically.  Using this federal law, patients can receive their records on CDs or jump/USB drives, by email, and by other electronic means.  The cost for receiving records this way is substantially less.  Instead of 25 to 50 cents a page, a CD of records commonly costs $6.50, no matter how many pages of records are on the CD.  This welcome change helps us do our job better and gives better access to justice for more people.

 

This just scratches the surface of the many questions people can have for us.  If you have questions about a potential Virginia medical malpractice case, feel free to reach out.

A Complex Diagnosis: Complex Regional Pain Syndrome

January 18, 2017

Recently, we have heard from more people who end up with complex regional pain syndrome (CRPS) after medical malpractice.  Because we are seeing more of it, and because it is not always immediately recognized, we want to lay out some of the things to watch for.

 

To start, CRPS is considered a chronic pain condition that usually affects a limb – arm, leg, hand, or foot.  It also usually develops after an injury or trauma to that limb, for example after a surgery.  (Not surprisingly, most of our clients with CRPS developed it after an injury from some sort of medical procedure.)  

 

CRPS has been known by many names over the years, including more recently reflex sympathetic dystrophy syndrome.  People believe it may be caused by problems with the nervous system and perhaps the immune system.  NIH has a helpful fact sheet here.

 

While early diagnosis is important, there is no one way to diagnose CRPS.  As a patient there are some telltale signs and symptoms to look out for:

  • Unexplained pain (described as deep, aching, cold, burning, and/or with increased skin sensitivity)
  • Pain out of proportion to an initial injury
  • Pain from things that should not cause pain, like from the touch of clothing or a shower
  • Swelling in the area
  • Abnormal hair or nail growth
  • Abnormal skin color changes
  • Abnormal skin temperature (compared to unaffected areas)

 

These are just some of the signs and symptoms of CRPS.  They may come and go and change over time in the same person. 

 

In our cases, one very common theme we hear from medical experts is this: Early recognition, correct diagnosis, and proper treatment are all essential.

 

The good news: if our experience is any indication, CRPS seems to be getting more attention, leading to earlier recognition, diagnosis, and treatment for more patients.  

Remembering Veterans Beyond Veterans Day

November 15, 2016

It is easy in this Hallmark, holiday driven world to get caught up in celebrating something or someone on its designated day.  But we should not forget them the rest of the year either.  That is certainly true for celebrating and appreciating veterans.

 

We practice law out of Roanoke, Virginia.  That means it would be easy to focus on what is happening medically by reference to the two largest hospital chains around Roanoke – Carilion Clinic and LewisGale (owned by HCA).  But there is another hospital in our area that serves many of our local veterans – the Salem VA.  

 

Many of us have heard about the troubles the VA system has had nationally – long wait times, bad care, retaliation against whistleblowers trying to bring VA problems to light, etc.  Our local Salem VA is also not perfect.

 

We recently settled a VA medical malpractice case that involved the wrongful death of a 49-year old veteran.  Here is a brief summary of the facts:

 

The veteran was a patient of the Veterans Affairs Medical Center from late 2011 through his death from cancer in June 2013.  He sought care beginning in December 2011 for thyroid-related symptoms, including a prominent goiter. 

As part of the workup for his thyroid, in early 2012, the veteran underwent a thyroid scan and ultrasound.  The thyroid scan revealed a large “cold nodule.”  While hot nodules are almost always not cancerous, some cold nodules are cancerous.  The thyroid scan alone cannot distinguish between a benign and malignant cold nodule.

After receiving the radiology reports, his doctors did not order a biopsy of the cold nodule or otherwise rule out cancer.  Instead, he was medically managed for hyperthyroidism for about 15 months.

In May 2013, the patient presented to the Emergency Department because his thyroid mass began rapidly growing in size.  He was admitted and, shortly after his admission, diagnosed with metastatic thyroid cancer.  He had two types of thyroid cancer – one non-aggressive type with near 100% survival rates and a second aggressive type that can develop from the less aggressive and has high mortality rates.  By that point, the patient was not a surgical candidate.  He received palliative care until his death about a month later at age 49.

He was the primary provider for three statutory beneficiaries – his wife, step-daughter, and step-granddaughter.

Our experts on standard of care opined that the defendant’s employees were negligent in failing to order a biopsy of the patient’s thyroid mass once the cold nodule was discovered.  Our medical experts would have testified that had a biopsy been timely performed, the cancer would have been diagnosed and could have been successfully treated.

The defense offered no standard of care experts.  The defense causation expert opined that earlier diagnosis and treatment of the thyroid cancer would not have materially changed the outcome because he had the aggressive form of thyroid cancer all along.  In part based on this causation theory, the defense offered an expert economist who offered a much lower value of the veteran’s lost wages and services as compared to the $800,000 proffered by our economist.

Suit was filed and extensive discovery undertaken. The case settled a few days before trial for $1,000,000.

 

Medical malpractice cases are generally hard fought, expensive, and time consuming.  That is just as  true for medical malpractice cases that come out of VA facilities.  The reward for success in these cases is largely measured by knowing we are doing right by veterans and their families.

ERCPs, the CDC, the FDA, & You

June 1, 2016

Before doing medical malpractice work, I took for granted that doctors and hospitals would only use clean instruments and tools on patients.  That naivete is long since gone, and FDA Safety Communications like this reaffirm why.

 

A bit of medical background:

Gastroenterologists and their staff who help with procedures called endoscopic retrograde cholangiopancreatography (ERCP) use duodenoscopes hundreds of thousands of times a year.  Duodenoscopes are flexible, lighted tubes that doctors thread through the mouth, throat, stomach, and upper part of the small intestine to examine patients internally and drain fluid from the pancreatic and biliary ducts.  They are intended to be cleaned and disinfected between uses.

 

Close-up view of an ERCP endoscope tip

Photo: fda.gov

 

These are not your average scopes used for colonoscopy and endoscopies.  They have more parts.  They are more complex.  And, as the Centers for Disease Control and Prevention (CDC) explained in 2013, they might be harboring multidrug resistant bacterial infections.

 

The FDA followed in 2015 with a Safety Communication.  It provides recommendations for everyone potentially affected by duodenoscopes used in ERCPs — including patients, doctors, hospitals, and virtually everyone in between.  The FDA noted that the complex design of duodenoscopes may prevent effective cleaning.

 

Given this concern, the FDA made the following important recommendations:

 

Recommendations for Health Care Providers:

  • Inform patients of the benefits and risks associated with ERCP procedures.
  • Discuss with your patients what they should expect following the ERCP procedure and what symptoms (such as fever or chills, chest pain, severe abdominal pain, trouble swallowing or breathing, nausea and vomiting, or black or tarry stools) should prompt additional follow-up.
  • Thoroughly disinfect duodenoscopes between uses and have in place a comprehensive quality program for reprocessing.
  • Take a duodenoscope suspected of being associated with a patient infection following ERCP out of service and meticulously disinfect it until it is verified to be free of pathogens.
  • Submit a report to the manufacturer and to the FDA if you suspect that problems with reprocessing a duodenoscope have led to patient infections.

Recommendations for Patients:

  • Discuss the benefits and risks of procedures using duodenoscopes with your physician. 
  • Ask your doctor what to expect following the procedure and when to seek medical attention. 

 

When it comes to your medical care, especially procedures that involve specialized medical instruments, take time to educate yourself.  If you are scheduled for a ERCP procedure, consider the FDA’s recommendations, and be sure your doctor can answer your questions about them.

 

Your electronic medical records are not always safe.

March 4, 2016

Several years ago, doctors and hospitals started moving patient records away from paper and into electronic systems.  Electronic health records have a number of benefits, but a recent cyber attack demonstrates that they are not always safe.

 

The potential benefits of electronic health records for patient care are clear.  For example:

  • It can be easier for your doctors to share information among themselves.
  • It is easier for you, as a patient, to access your health information.
  • Many electronic records systems allow you to communicate with your doctors through an online messaging service.

 

These benefits are meaningful and, in my work handling medical malpractice cases, I have seen these features improve patient care.

 

As with most technology, however, there are potential downsides.  Perhaps one of the scariest is the idea that our health information may not remain private, safe, and secure.

 

 

Photo: Alamy

 

If you have any doubt about this possibility, you need look no further than what happened to Hollywood Presbyterian Medical Center in Los Angeles, California a few weeks ago.  As The Washington Post reported, hackers used malware to hijack the hospital’s medical record system and demanded a ransom to restore the hospital’s system.  The ransom was paid in Bitcoins (a form of payment that makes tracing the hackers more difficult) and amounted to approximately $17,000.

 

What can we learn from this?  The security of our health records is not a given.  Advances that help patient care may also have risks.  And doctors and hospitals must be proactive about protecting their systems and the sensitive patient information stored on them.

The fight to get medical records

January 20, 2016

To investigate a medical malpractice case, we need to see the patient’s medical records.  One of the more frustrating parts of my professional life is dealing with doctors’ offices, hospitals, HealthPort, IOD, and others in an attempt to help our clients get their own medical records.  

Know you rights- You have the right to see or to access your medical records. HIPAA Privacy Rule.

Some of the stumbling blocks include:

  • long and complicated forms;
  • outrageous charges; and
  • time delays caused by underpaid and understaffed offices.

 

Another road block occurs because some people seem to intentionally misinterpret the law.  That’s why it’s nice that the Department of Health and Human Services has recently issued guidance to clarify what the law says.

 

The guidelines, titled “Individuals’ Right Under HIPAA to Access their Health Information 45 CFR Section 164.524,” include some helpful clarifications:

  • patients do not have to say why they want their records and
  • doctors and hospitals should ordinarily provide records within 30 days of a request.  (In Virginia, requests must be fulfilled within 15 days.)

 

Perhaps my favorite statement from the HHS guidelines is its first:

“Providing individuals with easy access to their health information empowers them to be more in control of decisions regarding their health and well-being.”

 

Well said.  So true.

The first Christmas without.

December 18, 2015

For many of the people we represent in medical malpractice cases who have lost a family member, the holidays take on a different meaning.  Rather than cheer and joy, sadness can take over.  As I’ve talked to some of our clients over the past few weeks, I have been reminded of this reality.

 

And really, regardless of how you have lost someone, perhaps there is no worse time than the first Christmas without them.  In recognition of that, I have compiled some short readings about grief and loss that may be helpful.  

 

Kristie West, a grief specialist, starts her 5-part blog post about the first Christmas without someone you love with this post about expectations for the day.  The other 4 posts, which include thoughtful tips about including your lost loved one in the day and how to take care of yourself and other family members, are accessible and real.

PBS has a t.v. series called This Emotional Life that explores mental health issues.  It also has a blog about grief and loss.  In this post, Dr. Camille Wortman spends some time giving suggestions about things to try.  She also identifies some common holiday dilemmas to prepare for.

AARP has many resources about grief and loss, including this list of 10 things to try during the holidays, including acceptance, preparation, and acknowledgement.

 

If you find yourself in this situation this year, my heart goes out to you and your family, and you have my sincerest hope that you may still find joy and cheer by honoring your lost loved one, their memory, and the gifts they gave you while here.

Speaking out about veterans’ care

November 30, 2015

The first time I had a case involving the medical care a patient received at a VA facility, I was surprised to learn that one of the doctors (a former VA employee) had major complaints about the VA himself.  Since then, I have had another case where an ex-VA doctor was willing to speak out about his concerns involving patient care.  A recent article out of Phoenix, Arizona shows these situations aren’t limited to Virginia.

 

The  Arizona Republic recently reported about Dr. Maher Huttam, who says he was fired and then defamed after exposing unsafe medical practices at the Phoenix VA Medical Center.  The practices he identified included that doctors in training (residents) did not have proper oversight and that supervising doctors were doing procedures without proper certification.  These practices, according to Dr. Huttam, resulted in complications for patients, complications like blocked colons, intestinal spills, and abscesses.

 

Any complication is concerning, but preventable medical complications are much more so.  For several reasons, including patient privacy, it is difficult to independently verify Dr. Huttam’s reports.  I can say, however, based on personal experience with VA medical malpractice cases, that doctors who are willing to voice their concerns earn my respect.  I imagine it is difficult to speak out about a colleague and even more difficult when doing so may endanger your career.

 

I commend doctors who keep patient safety at the forefront of their medical practice even at great personal risk.  We are all safer for it.