Articles Posted in Medical Malpractice

The Texas Supreme Court recently denied the request of Rio Grande Valley neurosurgeon Dr. Madhavan Pisharodi to halt the peer review process which he alleges is abusive and retaliatory. Dr. Pisharodi is accused of destroying and falsifying a patients’ records at the Valley Regional Medical Center in Brownsville, Texas. State 197th District Judge Migdalia Lopez denied Dr. Pisharodi an injunction and the 13th Court of Appeals affirmed the Trial Court. The Texas Supreme Court denied the petition for review reaffirming the peer review process.

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Tylenol is the brand name for over-the-counter acetaminophen made by McNeil Consumer Healthcare Products, a division of Johnson & Johnson. According to the American Association of Poison Control Centers (AAPCC), more people die as a result of an overdose of acetaminophen that all or the other over-the-counter pain medications combined. Many of the overdoses are the result of a consumer taking two different medications both of which contain acetaminophen. This is known as “double dipping” in the industry and the dangers of combining medications are either not known or under appreciated by the consuming public. According to the U.S. Centers for Disease Control and Prevention, more than 300 people die each year from an accidental overdose of acetaminophen.

The problem is compounded by the fact that over 600 different medications containing acetaminophen have been approved for use in the US by the FDA, their normal dose is very close to the overdose limit resulting in a small margin for error, and when combined with alcohol acetaminophen can cause liver damage or even death.

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The Texas Supreme Court recently ruled in Psychiatric Solutions, Inc. v. Palit that when a health care provider fails to provide proper safety and security for its’ employees the failure is governed by the Texas Medical Liability Act(TMLA). A psychiatric nurse was provided inadequate assistance and protection by her employer while trying to restrain a violent psychiatric patient and was injured. The nurse filed a negligence claim against her employer. The employer, Psychiatric Solutions, Inc., moved to dismiss the claim on the grounds that the nurse had failed to comply with the TMLA requirement for the filing of a medical malpractice claim. The Trial Court predictably denied the motion to dismiss since the employee was not a patient, the employer was not providing medical care to the employee, and there were no allegations of medical malpractice. The Court of Appeals affirmed. The Texas Supreme Court reversed holding that the employee’s allegation of inadequate security and safety was a healthcare liability claim governed by the TMLA.

It appears that the Texas Supreme Court is going to consider any legal claim against any healthcare provider to be a medical malpractice claim governed by the protections of the Texas Medical Liability Act(TMLA).

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The Texas Supreme Court has held that a properly drafted expert report, as required by the Texas Medical Liability Act, asserting the liability of a nurse was sufficient to support the liability of the nurses’ employer.

The Plaintiff, Cherie Potts, was admitted to Christus St. Catherine’s Hospital where she alleged that she was sexually assaulted by nurse Les Hardin. Nurse Les Hardin worked for a staffing service, Certified EMS. Potts submitted expert reports as required by Texas Civil Practice and Remedies Code 74.351 addressing the breaches of the applicable standards. The reports did not directly address the vicarious liability of Certified EMS for its’ employee, Les Hardin.

The Texas Supreme Court held that the expert report addressing the liability of the nurse was sufficient to support the vicarious liability of the employer even though not specifically mentioned.

A doctor examined a suicidal patient and determined that she did not meet the standard for involuntary hospitalization for psychiatric care and released her. Three days later she committed suicide by gunshot wound to the head. Her sons sued Dr. Rodriguez-Escobar alleging that he was negligent in failing to involuntarily commit their mother. A jury found against Dr. Rodriguez-Escobar and awarded $200,000 in damages. Dr. Rodriguez-Escobar appealed the jury verdict and the Thirteenth Court of Appeals affirmed.

At the Texas Supreme Court Dr. Rodriguez-Escobar did not challenge the jury’s finding that he was negligent but asserted that he had immunity under Texas Health and Safety Code Sec. 571.019(b). The Texas Supreme Court ruled that there was no evidence that Dr. Rodriguez-Escobar’s failure to diagnose and commit Goss proximately caused her death and reversed the Thirteenth Court of Appeals and rendered a verdict in Defendant’s favor.

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Johnson & Johnson’s own internal review of the hip implant known as the Articular Surface Replacement, or ASR, indicates that approximately 40% of the implants would fail within the first five years of implantation. Johnson & Johnson recalled the troubled hip implant in mid- 2010, yet did not release their internal analysis until after the recall.

The ASR recall is one of the largest medical device failures in years and raises questions as to what the managers of the DePuy Orthopedics Division of Johnson & Johnson knew about the hip implant’s problems before the implant was recalled. The ASR hip implant uses both a cup and ball component made of metal. Over time the grinding of the metal-on-metal device tends to produce metallic debris which damages the surrounding bone and tissue.

About 93,000 patients worldwide have received the Johnson & Johnson ASR. More than 30,000 of those patients are in the United States. Seven thousand ASR lawsuits have been consolidated in a federal court in Ohio and an additional 2,000 claims have been consolidated in a California state court action.

Sure, there are situations where trauma victims in isolated areas in immediate need of emergency surgery are rushed to the operating room by a medical helicopter. However, this seems to be more the rare exception than the rule.

Most air ambulance trips are much more mundane retrievals of accident victims who could just as easily and effectively be transported by ground ambulance. In those situations the medical helicopter is used because…it’s not in use and is too expensive to be left sitting idle. It is not uncommon in medical areas of cities to see multiple medical helicopters of competing hospitals sitting idle within sight of each other just waiting for something to do.

Are medical helicopters just one more glaring example of America’s out-of-control spending on healthcare?

The U.S. Supreme Court has granted cert in E.M.A. ex rel Plyler v. Cansler in which the 4th Circuit Court of Appeals upheld the pro rata formula in Ahlborn. Under Ahlborn when Medicaid pays accident related medical expenses and the Plaintiff subsequently obtains a recovery Medicaid may recover a proportionate share of the recovery. In the typical situation the injured victim sustain medical expenses, property damage, lost wages and intangible damages. The Ahlborn formula prevents Medicaid in the all-too-common situation where there is a limited recovery due to insufficient liability insurance from taking all of the insurance proceeds and leaving the Plaintiff with nothing in consideration of the other damages. For example, if an injury victim sustains $100,000 in medical expenses paid by Medicaid, $100,000 in property damage, and $100,000 in lost wages and there is only $100,000 in liability insurance then Medicaid would receive one third of the recovery. In such a situation Medicaid would like to take all the available funds and is challenging the limitation on Medicaid’s right to take all the funds.

To allow one interest holder to take all of the available funds is simply bad public policy. In such situation the injury victim, who advance all of the time, effort and expense in hope of recovering their damages, would have no incentive to pursue a claim and in the long run Medicaid would receive less overall recovery. This is a classic case of pigs get fat and hogs get slaughtered. If Medicaid gets its’ way then the Medicaid hog will be on its’ way to the slaughter house.

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The Texas Supreme Court recently ruled in Texas West Oaks Hospital v. Williams that the employment related claim of a hospital employee alleging negligence on the part of the hospital resulting in injuries to the employee constituted a “health care liability claim” under Chapter 74 of the Texas Civil Practices and Remedies Code. At the Trial Court level the Employer moved to dismiss the claim on the grounds that the employee had not filed an expert report as required by Chapter 74 in medical malpractice claims. It is uncontested that the Employer was not rendering health care to the Employee at the time of the alleged injuries and that the Employer was a nonsubscriber under the Texas Workers’ Compensation Act. The Trial Court denied the motion and the Employer filed an appeal. The Appellate Court affirmed. The Texas Supreme Court reversed, holding that the Employees’ claims were health care liability claims under the Act and required the submission of an expert report.

The only thing that this employment claim had in common with a health care liability claim is that the claim was asserted against a health care provider. Is any claim against a hospital a health care liability claim under the Act? If a hospital breaches a contract, fails to pay its’ taxes, or defaults on a loan and gets sued is the suit a health care liability claim governed by the Act simply because the defendant is a health care provider? At this point the Supreme Court has so broadly interpreted the Act that virtually any claim against a hospital, or any other health care provider, might fall under the Act, thereby creating a special class of defendants under Texas law.

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In Cosmetic Procedures Clinic of North Dallas v. Ayub the Dallas Court of Appeal held that claims arising out of lazer hair removal are not healthcare liability claims governed by Texas Civil Practices and Remedies Code, Chapter 74. As non-healthcare liability claims these claims are not subject to the onerous expert report requirement designed to make many legitimate medical claims cost prohibitive.

Chapter 74 defines a healthcare liability claim as a claim (1) against a health care provider or physician (2) for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, (3) which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. Chapter 74 has been so broadly applied that even janitorial services in hospitals and the actions of the delivery services that transport patients to and from medical appointments have been held to be subject to its’ requirements. Indeed, the joke in Texas is that anything that happens in sight of a hospital would probably be held to be protected healthcare under Chapter 74.

The Ayub decision is a refreshing application of common sense that has been largely missing in the interpretation of Chapter 74. The Court reasoned that lazer hair removal did not pertain to any medical condition, was not performed by one licensed to render medical care by the State of Texas, and does not constitute medical treatment under the terms of Chapter 74.

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