Medical Malpractice

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Medical malpractice or medical negligence is the failure of a physician or other medical provider to meet the standard of care in diagnosing or treating a patient. Despite claims that there are very few medical errors, studies (cited below) show estimate that more than 225,000 patients due each year from medical errors.

In addition, although insurance companies and some members of Congress claim that there is a medical malpractice crisis, the truth is that the number of medical malpractice claims paid nationwide in 2008 was the lowest since medical malpractice tracking began in 1990.

McCutchen and Sexton is committed to protecting consumers. In support of our firm’s commitment to fight any legislation that attempts to reduce the rights of patients injured through medical negligence, the following statistical data proves that what is needed is safety measures to ensure good treatment, not tort reform that helps to eliminate accountability of bad doctors and hospitals.

• 2004-06 study revealed 238,337 preventable hospital deaths in Medicare patients alone resulting from patient safety errors and costing the Medicare program $8.8 billion dollars.
Source: www.healthgrades.com

• According to an article published in the Journal of the American Medical Association, more than 225,000 people die each year
due to medical errors. Approximately 80,000 of these are related to infections in hospitals and more than 100,000 are due to medication errors or reactions.
Source: Journal of the American Medical Association

• According to a report from the Institutes of Medicine, annual deaths due resulting from a physician’s activity, manner, or therapy range between 230,000 to 284,000.
Source: www.mercola.com

• According to a report from the Institute of Medicine of the
National Academies, as many as 98,000 patients die each year
due to medical errors.
Source: Institute of Medicine of the National Academies

• According to a 2000 study of the World Health Organization, the United States ranked an average of 12 out of 13 (second from the bottom) when considering 16 available health indicators.
Source: World Health Report 2000

• Despite the requirement that hospitals report most instances of peer reviewed action taken concerning physicians practicing at the hospital to the National Practitioner Data Bank (“NPDB”), a 2006 Report shows that more than half of Arkansas hospitals with active NPDB registration had never made even a single report.
Source: NPDB Annual 2006 Report

• According to a 2009 report, chances are that five Americans will die every hour from preventable medical errors. There is better than a 50% chance that no medical malpractice payment will be made due to the medical malpractice error resulting in such deaths.
Source: Public Citizen Article “The 0.6 Percent Bogeyman”

• Despite claims of a need for tort reform due to claims of runaway juries, studies show that there is no medical malpractice crisis. For example, in 1999 when up to an estimated 98,000 hospital patients were killed, fewer than 15,000 malpractice payments were made.
Source: Public Citizen Article “The 0.6 Percent Bogeyman”

• The number of medical malpractice payments made in 2008 was the lowest since tracking measures were first instituted in 1990.
Source: Public Citizen Article “The 0.6 Percent Bogeyman”

• There are between 380,000 and 450,000 preventable adverse drug events that occur in United States hospitals annually. Both numbers are believed to be underestimates.
Source: Institute of Medicine of the National Academies

Traumatic Brain Injuries

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The attorneys at McCutchen and Sexton have considerable experience in representing patients having traumatic brain injuries. This experience has taught us that some doctors fail to appreciate and diagnose traumatic brain injuries following a motor vehicle accident or other injury.

Did you know that anyone who suffers a loss of consciousness has, by definition, suffered a traumatic brain injury? However, a loss of consciousness is not required to suffer a brain injury. We also frequently see clients having a brain injury that did not even hit their head in an accident or when they were injured.

The accepted definition of a mild traumatic brain injury, as developed by the Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine, includes:

(a) any period of a loss of consciousness

(b) loss of memory for events immediately before or after an accident

(c) any alteration in mental state at the time of an accident

(d) focal neurological deficit(s) that may or may not be transient

Our attorneys know that it is frequently difficult to diagnose a mild traumatic brain injury even though the injury may be significant enough to disrupt an individual’s entire life. While a proper diagnosis is the key to achieving proper compensation following injury in an accident, it is more importantly the key to obtaining proper treatment.

At McCutchen and Sexton, one of our primary objectives in
representing anyone that has been injured is to insure that a proper medical diagnosis has been or can be made so that our clients may receive proper treatment and their lives can return to normal or as near to their pre-injury state as possible.

Nursing Home Negligence

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“It should have never happened.” This is one of the first things we
usually hear from family members that lose a loved-one due to medical
malpractice. Too frequently, because of overbooked surgery facilities -
overloaded physician schedules and sometimes physician fatigue,
medical mishaps occur. Loved-ones die or are injured for life.

Are you mad because you are not getting straight answers? The Law Firm knows how to protect your evidence and to find the truth. Many times when medical malpractice occurs, hospitals, staff members and physicians do not cooperate. The facts may become clouded and vague, or may not match your memory of the events.

This is where The Law Firm can help. You can avoid the uncooperative spirit of hospitals and physicians who are trained to limit the information they disclose about your loved-one. We know the questions to ask and the medical records to secure.

Medical malpractice is defined as the failure to apply the degree of
skill and learning ordinarily possessed and used by members of the
same profession in good standing engaged in the same type of medical service or specialty in the same or a similar locality. This may include
the following types of medical providers:

• Doctors
• Nurses
• Medical Technicians
• Healthcare providers
• Hospitals
• Clinics
• Nursing Homes

It is not the duty of the medical provider to cure or guarantee a
positive outcome from the treatment but rather to provide medical
care at the accepted standard of the community or a similar locality.
A medical malpractice case revolves around the issue of whether a particular provider has caused damage by violating or breaching the standard of care.

When patients are treated appropriately, they return home to recover, while medical costs and health insurance rates are held at bay. The Law Firm protects victims of malpractice; negligent doctors and supporting staff members are the leading cause of skyrocketing medical costs.

Statistically, a few bad doctors cause a majority of the medical injury
that occurs. The Law Firm believes that physicians with bad records should be sanctioned by State Medical Boards and, if necessary, have their license revoked. Consumers should have access to physician malpractice history in order to make informed healthcare choices.

In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (“EMTALA”) codified at 42 USC § 1395dd. EMTALA applies to any hospital that participates in the Medicare program (which is virtually every hospital in the United States) and which has an emergency room. It requires that the hospital must provide for appropriate medical screening, within the capabilities of the hospital, to determine whether an emergency medical condition exists for any patient for whom a request for an examination is made. The request for examination may be made by the patient or by someone acting on behalf of the patient.

Under EMTALA, “emergency medical condition” means:

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

EMTALA further requires that if an individual is determined to have an emergency medical condition that the hospital must provide, within the staff and facilities available at the hospital, further medical examination and treatment as are required to stabilize the medical condition or that the hospital must transfer the patient to another facility.

EMTALA prohibits hospitals with emergency rooms that participate in Medicare (which is virtually every hospital in the United States) from failing to screen and stabilize all patients (not just those receiving Medicare) suffering from an emergency medical condition. EMTALA requires any hospital having an emergency room to screen any patient requesting treatment. Referring a patient to another facility or demanding advance payment in a manner that causes a patient not to receive an examination and treatment for an emergency medical condition have been held to violate the requirements of EMTALA.

If the hospital makes a determination that the patient has an emergency medical condition, the hospital must provide, within its capabilities, further treatment as required to stabilize the condition or for appropriate transfer of the individual to another facility. Hospitals are not permitted to merely transfer (i.e. dump) a patient to another hospital. Instead, if the patient has not been stabilized, the patient (or someone acting on behalf of the patient) must be informed of the risks of the transfer and a certificate must be signed attesting that the medical benefits reasonably expected from treatment at the facility where the patient is being transferred outweigh the risk of transfer to the patient. Also, the transferring hospital must provide medical treatment that it is able to perform to minimize risks to the patient’s health and the receiving hospital must have available space and qualified personnel for treatment and must have agreed to accept the patient and provide the appropriate medical treatment. EMTALA requires that any transfer be by qualified personnel and transportation equipment, including the use of necessary and medically appropriate life support measures during the transfer.