Medical Malpractice

The Story of a Routine Surgery Gone Terribly Wrong at the Hospital

December 18, 2013 | Gregory J. Brod

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Typically the prognosis for anyone undergoing a routine form of surgery is good to excellent. And certainly a tonsillectomy would fall into the category of one of the most routine of surgeries. That’s why Bay Area personal injury attorney Gregory J. Brod is as shocked as the rest of the community and the nation over the tragic case of a teenager in Oakland who is now clinically brain dead after having her tonsils removed.

Procedure Done in Hopes of Controlling Sleep Apnea
According to the San Jose Mercury News, Jahi McMath, 13, checked into Children’s Hospital Oakland for tonsil surgery on Dec. 9. McMath suffered from sleep apnea, which is a potentially serious sleep disorder in which the afflicted person’s breathing is repeatedly interrupted during sleep, and her doctors felt that removal of her tonsils would help alleviate the sleep apnea.

Just after her surgery, McMath seemed healthy and alert, but later that evening she began to bleed and then she went into cardiac arrest. After experiencing a massive swelling in her brain, McMath was pronounced brain dead three days after the operation. Tests conducted since the operation have shown no brain activity.

McMath’s family has sought to keep her on life support, but her mother said that staff at the hospital had been pressuring her to sign paperwork to take McMath off life support and release her body to the Alameda County coroner’s office. In response, the McMath family attorney has delivered a cease-and-desist letter to officials at the hospital to keep the teenager alive.

Hospital Staff Remains Mum
Children’s Hospital Oakland officials decline to discuss the specifics of the case, claiming that the family has denied them permission to speak on the matter. As is the case in such situations, privacy laws forbid a hospital from releasing information concerning a patient’s condition or care without his or her consent.

Meanwhile, the McMath family understandably has maintained a vigil for their stricken teenager. And the family had been touched by the outpouring of support from strangers.

“A lot of people here don’t know my daughter, and they came out to pray for her, said Nailah Winkfield, the girl’s mother. “I can’t wait to get back to the hospital and tell her how many people are praying for her.”

Indeed, many are praying for her recovery, and news of her condition has spread around the world. McMath’s story has resonated on social media, where there has been an upwelling of support for the family.

For their part, the family is appreciative of the support and maintains hope that McMath will recover.

“We’d like to thank everyone across the nation who took time to pray for Jahi,” said Omari Sealey, the girl’s uncle. “We feel rejuvenated, we feel recharged, and we are ready. We are praying for a medical miracle, but we are also praying for the hospital to have more compassion.”
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Questions Raised After Missing Patient Is Found Dead at S.F. General Hospital

October 9, 2013 | Gregory J. Brod

One doesn’t normally expect to sustain personal injury when checking into a hospital or other medical facility, but unfortunately a significant number of patients are wrongly harmed or die every year while receiving medical care in the United States. And the perplexing death of one San Francisco hospital patient has left questions unanswered, including whether medical malpractice was involved.

Medical Examiner Investigating Cause of Death
As reported by the San Francisco Chronicle, the body of Lynne Spalding, 57, was found by a San Francisco General Hospital employee in a stairwell about 10 a.m. Tuesday. As shocking as the discovery of the body of the mother of two and native of England was, the fact that Spalding was reported missing from the hospital more than two weeks before adds to the bizarre nature of this story. Spalding was last seen at SFGH on the morning of Sept. 21, two days after she was admitted to the hospital for complications resulting from an infection, and she disappeared from her room during a scheduled check by hospital staff on that day. Spalding’s friends have speculated that she may have been disoriented as a result of medication for her condition, and the San Francisco medical examiner’s office is attempting to determine the cause of her death.

While the exact cause of Spalding’s death remains to be determined, one thing that is certain is that SFGH had a duty of care for her and would be responsible for any incompetence on the part of hospital staff that led to her injury or death and that any such negligence would be the basis for a medical malpractice lawsuit. Typically one of the questions involved in a medical malpractice lawsuit against a hospital is whether the attending physician or physicians of the harmed patient is or are considered hospital employees or contractors, a factor that may impact the hospital’s liability.

Medical Errors Growing Problem in United States
The tragic death of Spalding stands out as grim example of when things go wrong at a hospital and may very well have been avoidable, but preventable errors at medical facilities include a wide range of never-should-have-happened phenomena, such as sponges left inside surgical patients, administration of improper medications, use of contaminated equipment and other types of mistakes. And it may come as a surprise to many, but medical errors are an increasingly deadly occurrence in the United States.
According to a recent report in Forbes magazine, 1999 statistics showed that 98,000 people were dying every year from preventable errors in American hospitals. However, the magazine goes on to say that a new study reveals that as many as 440,000 – or four times as many – people die from preventable medical errors in the United States. Putting the new numbers in perspective would mean that medical errors are now the third leading cause of death in the United States, more deadly than auto accidents or diabetes but in line behind notorious killers such as cancer and heart disease.

Another disturbing fact that came to light this year concerns the record of hospital care in the San Francisco Bay Area. While Bay Area hospitals generally get high marks for keeping patients alive, at least half of all the region’s medical institutions posted worse-than-average death rates in one or more medical procedure or patient condition in 2010 and 2011, according to a recent report in the San Jose Mercury News. SFGH was among the many regional hospitals that registered worse-than-average death rates in some categories compared with the state average.
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Dangerous Drug Alert: Potentially Risky Hormone Therapy Aimed at Aging Men

September 10, 2012 | Gregory J. Brod

The recent spate of advertisements focusing on life-enhancement through medical science. While making these advancements, the companies are also working to market their new product to consumers, a process that sometimes has two steps: 1) Convincing the customer that they are facing a meaningful health issue, and 2) Convincing the customer that the product is an effective treatment for said condition. Uncertainty about both the condition and the treatment can lead to poor results when the product is ultimately used. Our San Francisco products liability team works to help the victims of dangerous drugs recover when companies market and sell unsafe medications.

Abbott Laboratories manufacturers Androgel, a testosterone gel used by millions of men worried about low testosterone (“Low T”) levels as they age. Testosterone levels decline starting around age forty and drugmakers, along with some physicians, have touted the benefits of gel for reversing some signs of aging. However, as discussed in an Associated Press article carried by the San Francisco Chronicle, there is a disturbing lack of evidence supporting the treatment. The Low T debate is only one example of the increase in attention to problems once considered a normal part of the aging process. With the aging baby boomer population and longer life expectancy, drug companies and others have targeted age-related changes with promises of longer youth. Print and television advertisements targeted testosterone treatments rose more than 170 percent in the past three years with over $14 million spent in 2011, leading to a 90 percent rise in the number of prescriptions in the last five years.

As a whole, testosterone therapy is not entirely new. Injections have long been used to treat certain medical conditions that lead to a drop in the hormone. However, the latest push markets the hormone to a wider range of otherwise healthy men. Some researchers worry that the treatments are being marketed without sufficient scientific support, including disagreement about what constitutes a normal hormone level in older men. Further, there is little understanding as to whether replacement therapy actually helps symptoms that advertisers associate with Low T. In one study on 230 men in 2008, treatment did not statistically improve muscle strength, bone density, or overall quality of life. Another study is currently underway through the National Institute on Aging, but results aren’t expected until 2014.

Doctor Charged with Murder After Patient Overdose

March 10, 2012 | Gregory J. Brod

Several months ago, Dr. Conrad Murray was convicted of involuntary manslaughter for the role he played in bringing about the death of pop sensation Michael Jackson in 2009. That case was one of several similar cases that demonstrated California’s new resolve to go after irresponsible doctors more aggressively than in the past. Since that time, charges have been filed against other doctors throughout the state.

Our San Francisco wrongful death lawyer learned this week of a recent case in which charges were filed against a doctor, signifying an even stronger hand being brought to bear against those in the medical profession who misuse their authority as doctors. The case involves a doctor from the San Francisco bay area named Hsiu-Ying “Lisa” Tseng, who lives in the Bay Area. The doctor has been charged with murder in the deaths of three different young men between the ages of 21 and 28. All three died by overdosing on prescription medications that Tseng had prescribed for them. It appears that authorities believe Tseng was prescribing drugs with the knowledge that they were going to be used for recreational use. According to an article from CBS San Francisco, one of the young men reportedly drove all the way from Arizona just to get a prescription from Tseng.

While the murder case has only just begun and will likely continue on for at least a few months, if not longer, our San Francisco wrongful death lawyer knows that its outcome may mean more to the families of these young men than whether or not someone is held criminally responsible for their deaths. However, local residents should be aware that a criminal case is wholly distinct from a the civil case that might be filed in the case.

Palo Alto and San Francisco Hospitals Fined for Putting Patients in Danger

December 13, 2011 | Gregory J. Brod

The California Department of Public Health issued a list on December 8, 2011 of 14 California hospitals that received administrative fines for not properly following hospital policies and procedures meant to ensure the health and safety of its patients. Out of the fourteen hospitals cited, seven were fined for leaving behind foreign objects in patients during surgery, four hospitals were fined for improperly administering medication, and three hospitals were fined for other reasons.

In total $850,000 in fines were issued for five different types of medical errors. Agents of the California Department of Public Health are trained to look for 28 different adverse events that range from performing surgery on the wrong body part to using medical equipment for a purpose other than its intended use to patient falls in the facility while care is being provided.

Amendments to California Health and Safety Code §1280.1 and §1280.3 were passed in 2007. The statutes now allow the California Department of Public Health to issue administrative fines to hospitals whose noncompliance with safety policies and procedures put a patient in immediate jeopardy of serious injury or death. In 2009, the fines were raised in accordance with the statute. The penalty for first offenses increased from $25,000 to $50,000 and implemented fines up to $100,000 for multiple offenses. These fines are only applicable to General Acute Care Hospitals, Acute Psychiatric Hospitals, and Special Hospitals.

Of the fourteen hospitals fined by the California Department of Public Health, four are located in the Greater Bay Area. San Francisco General Hospital received its second administrative penalty of $50,000 fine for performing a partial mastectomy on a woman who had requested a full mastectomy. UCSF Medical Center was fined $75,000 for its sixth administrative penalty because a surgeon mistakenly made an incision under the patient’s left eye, but closed it after he realized the incision should have been made under the patient’s right eye. The Kaiser Foundation Hospital in South San Francisco was given its first administrative fine of $50,000 for storing vaccines and some other medicines at an improper temperature, which could decrease their effectiveness. The compromised vaccines and medicines were administered to almost 5,000 patrons of the hospital. Finally, the Lucile Salter Packard Children’s Hospital at Stanford was fined $50,000 for its second administrative penalty for administering an improper dose of medication to a patient, causing the patient to seizure.

The California Department of Public Health looks at eight factors when determining whether a fine should be issued to an acute care provider and how much the fine should be. These factors include the risk to the patient from the non-compliant action, financial harm to the patient, the hospital’s record on compliance with safety policies and procedures, and the hospital’s responsiveness to the problem. Licenses and certification may not be revoked based on the number of administrative penalties, but hospitals are required to submit a plan of correction, which demonstrates how the hospital will attempt to prevent future occurrences of similar medical errors. The hospitals may file an administrative appeal within 10 days to request a hearing.
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The Dangerous Mix of Money and Medicine

December 9, 2011 | Gregory J. Brod

As San Francisco medical malpractice lawyers, the Brod Law Firm is keenly aware of the many ways in which money and other financial factors can influence medical decision-making. Sadly, sometimes patients are harmed when doctors make decisions based on cost rather than focusing on what is best for the patient. When patients are harmed, whether as the result of a decision made by a doctor or an insurance company, a San Francisco medical injury attorney can help determine if improper financial motivations resulted in medical care falling below the required standard of care.

It seems like every few weeks we come across a new story about the way money and medicine intersect. The San Francisco Chronicle recently explored the link between changes in Medicare payments and an increase in a specific diagnosis. Unfortunately, this practice is common enough to have its own name and is referred to as “upcoding” in the insurance field. The Chronicle’s article focused on the Chino Valley Medical Center in San Bernadino County and its parent company, Prime Healthcare services. The companies deny any wrongdoing but authorities are investigating a suspicious surge in the hospital diagnosing “acute heart failure.” In the 2008 to 2010 time frame, 35.2% of the hospital’s Medicare patients were listed as having the condition, six times the state average. The diagnosis triggered bonus payments from Medicare of thousands of dollars for every patient. This surge followed a rule change entitling a hospital to increased payments for patients with certain major complications.

It is not clear whether the alleged upcoding impacted patient care or just resulted in changes in paperwork filing. Of course, improper reporting does have a financial impact, particularly concerning when it involves a public program like Medicare. However, the financial influence on medicine can also have a direct impact on the quality of care. There are many factors at play including the rates at which insurers reimburse for different procedures and concerns related to medical malpractice insurance fees. These factors can influence the decision-making process, either at the physician or the insurance company level, and patient care can suffer.

California pain and suffering cap in medical malpractice lawsuits

August 18, 2009 | Gregory J. Brod

For the past 34 years, California has had a cap on the amount of non-economic damages that an injured person may recover in a medical malpractice lawsuit. Under the current law in California, if a doctor is supposed to repair a knee injury but amputates the leg due to being drunk, for example, the maximum amount of non-economic damages (pain and suffering) that can be recovered in a personal injury case is $250,000.00. If that person’s one passion in life was dancing, and a jury awards $500,000.00 in non-economic damages, the award gets reduced to $250,000.00. If that person had jogged every day to alleviate stress, keep their weight down and maintain a healthy heart rate, and a jury awards $650,000.00 in non-economic damages, the award gets reduced to $250,000.00. It is absurd to think that the value of $250,000.00 in 1975 is anywhere close to the value that same amount represents today, which essentially means that the maximum an injured person can recover, has steadily gone down in the State of California.

The cap on medical malpractice lawsuits was supposed to help both consumers and doctors by keeping insurance premiums from rising, which the insurance industry likes to blame on lawyers, juries, and our civil judicial system, in general. It is more than doubtful that health care premiums, as well as medical malpractice premiums for doctors, have consistently risen in California, despite this cap in medical malpractice lawsuits.

The constitutionality of the law that caps these damages was recently upheld in a California Court of Appeal decision, and the California Supreme Court refused to review the decision, which means that the cap will remain in place. The insurance industry is very powerful, has tremendous resources and influence, which is important to take into consideration whenever it sends out its claims of “tort reform” and “lawsuit abuse” in our system.