Corporate recalls and other corrective measures taken by corporations typically occur under great duress.  One need not look far to see this is so.  Banking fraud recently in the news is a perfect example.  Banking fraud  is appalling but no lives were lost.  Other corporate decisions related to consumer safety have much graver consequences.  It happens time and time again that corporations fail to take action despite knowledge of deadly threats to consumers.  Why is this?

The Wisdom of Fight Club:  Airplane Chat Scene

A new car built by my company leaves somewhere traveling at 60 mph. The rear differential locks up. The car crashes and burns with everyone trapped inside. Now, should we initiate a recall? Take the number of vehicles in the field, A, multiply by the probable rate of failure, B, multiply by the average out-of-court settlement, C. A times B times C equals X. If X is less than the cost of a recall, we don’t do one.

Are there a lot of these kinds of accidents?

You wouldn’t believe.

Which car company do you work for?

A major one.

Tragic Consequences of Recall Economics

The scene from Fight Club is humorous and shocking at the same time.  The humor and shock derive from the absurdity, immorality and truth of the decision-making process spelled out by Jack.  Most consumers who are paying attention are fully aware of these types of decisions with or without knowledge of corporate cost-benefit analysis.  Yet we continue to buy the products that kill us and the companies that sell them continue to see lost lives as a mere balance sheet item.  The result is countless consumer deaths in auto accidents, exploding phones and vape pens, dangerous children’s toys, unsafe car seats and baby beds and many more consumer products.  It does not stop there.  It permeates even the most sacred safe places: i.e. hospitals and medical care.

In the worst cases, even given public knowledge and outrage, corporations continue to put dangerous products out to the public.  The analysis simply shifts from the costs of “out of court settlements” referred to by Jack.  The costs-benefit analysis must now simply factor in the costs of governmental fines and penalties.  These are generally a small pittance compared to the profits of keeping the products on the market.  They hardly serve to deter the behavior.

The Corporate Costs of Dangerous Misbehavior Must be Enormous to Change Behavior

Just the last year brings plenty of examples of corporate resistance to basic morality and decency.  Take banking as an example who fought tooth and nail to maintain the fraudulently earned profits.  Still ongoing is the resistance of Wall Street to any consumer protection regulations to prevent another economic collapse.  This resistance will soon have a place in the White House.

Yet again, these were financial in nature.  There were numerous others throughout the year that came with deadly consequences and unfathomable harm to consumers and their families.  They continue and will never cease until consumers hold these companies and their purveyors accountable.  This is done through the consumer choices we make.  Unfortunately for far too many, this is not an option because they or a loved one has already suffered harm.  The only thing left to do to hold the companies accountable is through the courts with the aid of the much maligned trial lawyers that make this possible.

Why Do Corporations Hate Trial Lawyers?

This question has a simple answer:  trial lawyers succeed where government regulators fall short.  There is no question that government regulations are absolutely necessary for consumer safety.  However, the fines and penalties that are imposed are meager compared to the profits associated with their violation.  Trial lawyers are the last best chance for most people harmed by corporations to have any measure of justice.

Justice comes with a costs to corporations.  Corporations on the whole have no interest in justice.  The goal is not justice or safety to their customers, but profit.  Trial lawyers cut into that profit like government regulations rarely can.  This is why there is a constant beating of the corporate drums to discredit trial lawyers and their clients.  Sadly, most Americans due to the volume and pervasiveness buy into these lies.  They do so at the peril to themselves and their families.  It is only when these wrongs hit close to home that they learn that they have been lied to.  At that point, there is no amount of money that can compensate them for their losses.  But money is the only thing available and this is what corporations hold most dear.

Speak Up, Take Action, Protect Yourself and your Family

There are plenty of ways to make your voice heard.  Stop buying the products that kill.  Stop doing business with fraudulent banks, insurance companies, and other companies.  Contact your local, state and national political leaders to voice your concerns and then hold them accountable with your votes for failure to take action.  Don’t buy to corporate lies about frivolous lawsuits, dishonest trial lawyers and greedy plaintiffs.  These lies harm but only if you buy them.

For those who do suffer harm from corporate predators, hold them accountable in the courts.  Speak with an experienced attorney and make the truth known and the company held responsible.

 

Why didn’t GM fix faulty switches? A per-car cost of less than $1 – CBS News

Why didn’t GM fix faulty switches? A per-car cost of less than $1 – CBS News General Motors (GM) faces mounting criticism that it failed to repair a defective part linked to the deaths of at least 13 people because of the costs involved in making the fix.

A Cheaper Airbag, and Takata’s Road to a Deadly Crisis

A Cheaper Airbag, and Takata’s Road to a Deadly Crisis Details of G.M.’s decision-making process almost 20 years ago, which has not been reported previously, suggest that a quest for savings of just a few dollars per airbag compromised a critical safety device, resulting in passenger deaths. The findings also indicate that automakers played a far more active role in the prelude to the crisis: Rather than being the victims of Takata’s missteps, automakers pressed their suppliers to put cost before all else.

Some automakers still use riskier Takata airbags

Some automakers still use riskier Takata airbags Despite more than 28 million Takata airbag inflators being recalled in the U.S., some automakers are still using them in new cars.

 Grilled About Deadly Superbug Outbreaks, Execs At Scope Maker Olympus Take Fifth | Kaiser Health News

Grilled About Deadly Superbug Outbreaks, Execs At Scope Maker Olympus Take Fifth | Kaiser Health News At least 35 patients in American hospitals have died since 2013 after developing infections tied to tainted Olympus duodenoscopes — flexible, lighted tubes used to peer deep inside the body. More than 25 patients and families, including the Seattle-area widow, have sued Olympus for wrongful death, negligence or fraud.

In a Feb. 6, 2013 response to a question from a U.S. Olympus executive about whether American hospitals should be warned, Nishina replied it is “not need[ed] to communicate to all the users actively,” because a company assessment of the risk to patients found it to be “acceptable.”

 

Breast Cancer Misdiagnosis Too Often DeadlyThere have been enormous advances in the detection and treatment of breast cancer.  In fact, with early detection, there are very good survival rates.

Unfortunately, breast cancer is not always detected early.  This is often a result of a failure to properly diagnose breast cancer.  A failure to diagnose breast cancer will in turn cause enormous unnecessary harm to the patient, including wrongful death.

Breast Cancer Survival Rates by Stage

The survival rates are laid out by stage by the American Cancer Society.  It does not take high-level math to understand that the survival rate drops off significantly from one stage to the next.

As a rule of thumb, the earlier the detection, the earlier the stage, the higher the survival rate.  According to the American Cancer Society’s survival rate estimates, the survival rates are as follows for 4 stages of breast cancer:

  • State 1 has a 5-year survival rate of 100%.
  • State 2 has a 5-year survival rate of 93%.
  • State 3 has a 5-year survival rate of 72%.
  • State 1 has a 5-year survival rate of 22%.

It is clear that early detection has enormous consequences for survival of the breast cancer patient.  Late detection has equally disastrous consequences.

Regular Screening is Essential

Regular breast cancer screening is absolutely essential.  This is particularly so where certain risk factors are present.

There are numerous risk factors that will dictate the commencement and frequency of breast cancer screenings. These include the patient’s previous history of cancer, the patient’s age, the patient’s family history of cancer, obesity, and alcohol to name just a few.  To see a full list of risk factors, go the American Cancer Society’s fact sheet on breast cancer risks.

Better yet, use the National Cancer Institute’s the Breast Cancer Risk Assessment Tool to assess your individual risk.  This tool is not a substitute for expert medical examinations but it is very useful and may actually save your life.

Failure to Diagnose Breast Cancer

It is estimated that up to 80,000 deaths per year result from medical diagnostic errors.

This is certainly by no means all breast cancer related but in consideration of the numbers on breast cancer and the numbers on failed diagnosis, it is fairly safe to say that failure to diagnose breast cancer causes countless deaths each year and countless more permanent injuries.

It is important for patients of all stripes to protect themselves to the degree possible from the harm associated with diagnostic errors.  This includes women and particularly those who exhibit any breast cancer risk factors.

This is one reason the breast cancer risk assessment tool might be important.  If you are at risk, then you should make sure that the doctor and medical staff are fully aware of each and every one of your risk factors.

Whether you exhibit any of the risk factors, you should question any suspicious findings.  We would like to trust our medical providers to take every precaution to protect us against diagnostic errors but the reality is we can’t.  The numbers speak for themselves.

Breast Cancer Diagnostic Errors Lead the Way in Medical Malpractice Claims

In fact, the failure to properly diagnose breast cancer leads the way in medical malpractice lawsuits.  They also lead the way in settlement payouts, which is a good indication of the high rate of failed diagnosis.

The medical malpractice insurance industry has found that breast cancer claims were the costliest medical malpractice claims from 2002 to 2011.  Among breast cancer claims as a whole, diagnostic error was the number one complaint.

Be Proactive!

As a patient, you must be proactive in every way.  First, you must take precautions to protect yourself not just against diagnostic error, but against all varieties of medical negligence—which is estimated to kill up to 440,000 patients each year.

Also, be proactive in determining your risk factors.  Be proactive in questioning suspicious findings.  Be proactive in insisting on testing and follow up testing where called for.

One area to be particularly proactive is in setting up and showing up for follow up appointments.  Do not entirely rely on your medical professionals to remind you of the need for a follow up or a courtesy call to remind you of the date of the follow up.  And do not miss follow up appointments.  If you do, immediately reschedule.

In the event that you are a victim of diagnostic error, be proactive in seeking legal guidance.  There are many unique, sometimes short and often unfair deadlines for medical malpractice claims.  These apply equally to breast cancer cases.

Be proactive in every way with your medical care.  Your health, your financial security and even your life may literally depend on it.

A doctor’s duty of care to a patient in New Mexico is fairly broad.  One important aspect of the duty of care is the duty to refer a patient to a specialist when one is needed.

Medicine has Grown More Specialized

Obviously, this duty is extremely important.  Medicine has grown increasingly specialized.  With specialization, there have been significant advances in science, treatment, procedures, techniques and so on.

A primary care provider is not likely to keep abreast of these advances.  Nor is a specialist in one field likely to have sufficient knowledge of advances in another.

The Jury Instruction is clear and succinct on the issue of referral to a specialist

When it is clear that the problem requires a specialist outside of the doctor’s area of expertise, then there is absolutely no gray area in the duty to refer the patient to an appropriate specialist.  NM Jury Instruction Civil 13-1103 Duty to inform patient of need for another doctor, states the duty quite clearly and succinctly:

“If a treating doctor knows, or should know, that a doctor with other qualifications is needed for the patient to receive proper treatment, it is the duty of the treating doctor to tell the patient.”

In case there was any doubt, the New Mexico courts have interpreted this to mean that the duty is breached when a doctor fails to inform the patient that the patient’s condition requires treatment from a specialist.

There is little wiggle room here where the condition clearly indicates the need for a specialist.  More importantly for a patient that suffers harm due to a failure to make a referral, the medical records must indicate the need for a specialist.  Where this is the case, the duty is clear.

Need for a Referral to a Specialist Not Always Clear

However, the need for a specialist or the need for a different specialist may not always be so clear-cut.  Uncertainty may shield a doctor or other medical providers from liability.  The need for a specialist is measured at the time of the doctor’s treatment, not typically in hindsight.

Of course, there remains the general standard of care that requires the doctor or medical provider to “possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors/healthcare providers.”  So clear negligence in properly detecting the need for a specialist will not get the doctor off the hook.

Gray areas arise often particularly in referral between somewhat overlapping specialists

However, there are some very gray areas here.  One such gray area occurs when one specialist fails to recognize or consider the need for a second or a more appropriate specialist.  As they say, when your only tool is a hammer, everything looks like a nail.  Perhaps more cynically, when your only tool is a hammer, it quite literally pays to see everything as a nail.

This comes up more often than one might think.  Just by way of example and by no means to limit the issue to orthopedist, spine issues may result in hip issues.  For instance, an impinged nerve in the spine can cause radiating pain into the hips and other extremities.  If you first see a hip specialist, he may very well suggest hip surgery.  Of course, if the problem originates in the spine, there will be no relief and you may have endured an unnecessary surgery.

 How to does one show the doctor knew or should have known of the need for another specialist when there is possible uncertainty?

On the other hand, maybe the x-rays and MRI’s also show issues in the hip, just not the issues causing the pain.  The hip doctor may honestly determine a need for hip surgery to repair those issues.  So what then is the duty?

Has the duty been breached if the doctor knew or should have known that the hip problems were not the source of the pain?  Perhaps more importantly, how would one go about, proving the doctor knew that it wasn’t the problem?  Certainly, the notes will not state as much.

Failure to Refer Has Many Risks of Which Patients May Not Be Aware

Again, this is not to pick on orthopedists.  This potential issue/conflict occurs with other specialists as well.  In any event, a failure to refer a patient has significant potential risks and costs.  The potential issues go far beyond the expense, pain and recovery from an unnecessary surgery.

Medical error accounts for “roughly one-sixth of all deaths that occur in the United States each year”

In a recent report from the Journal of Patient Safety, it is estimated that as many as 440,000 patients die each year as a result of preventable medical error.  The report shockingly reports that “This is roughly one-sixth of all deaths that occur in the United States each year”.  Perhaps, just as troubling, the report further estimates that 10-20 times that number suffer serious harm.  

So assuming you become one of these victims as a result of an unnecessary surgery, then what?  In the obvious case, the liability is clear.  In these cases with some level of ambiguity or doubt, it may very well be that the decision of the doctor is given the benefit of the doubt even though in hindsight, the decision was clearly wrong.

Moral of the Story – Get a Second Opinion

Surgery should be the last recourse in any situation.  It most certainly should not be done in the absence of necessity.  In order to determine the necessity or appropriateness of a given surgery, it is important for the patient to get a second opinion (and even third or fourth where there is any doubt).

“Trust but verify”

Your health and safety are far too important to do otherwise.  In light of all that can go wrong and how frequently things do go wrong, you owe it to yourself and your family to seek a second opinion.  As they say, “Trust but verify”.  

Online bullying has become a very real concern for children and their parents. Some recent press illustrates, once again, the horrendous consequences online harassment can have.

The most recent high profile case of the 12 year old in Florida that committed suicide as a result of relentless online (and school) bullying points to the many consequences that this unacceptable behavior can have on the victim, the youthful perpetrators, and the parents.

Beyond the horrible loss of the child, other consequences are mounting. The youthful bullies have been charged with felonies, which will, along with their conscience, follow them forever. The sheriff is now contemplating criminal charges against the bullies‘ parents.

But these are likely to be only first steps in this very tragic event. There will likely be civil wrongful death lawsuits as well. This is the topic of this article.

Liability of the School

The issues will be addressed from a New Mexico law perspective and may not apply to other states.

The press seems to indicate that the bullying was severe, public, and known by teachers and other school officials. The question will immediately arise regarding liability of the school and school district for the wrongful death of the young girl.

Prior to reading about this tragic case, I wrote an article on a recent New Mexico Supreme Court case on just this subject. Because of the broad applicability of the principals set forth in the article beyond schools to all government and business facilities, I also wrote a follow up article.

School Violence: Duty of Care in New Mexico Under Principles of Premises Liability

Knowledge and Ability to Prevent Harm Key to Governmental Premises Liability Claim in New Mexico

One thing that is clear from the cases is that, in New Mexico, the school would be held liable if in fact the school had knowledge of the bullying and failed to address it. In the Florida case, the suggestions have been that the school did have knowledge and not only failed to address the situation with the offending students, also failed to notify the parents of the victim or the bullies.

In short, if the facts were as suggested, in New Mexico the school would be facing liability for the wrongful death of its student.

Liability of the Parents

The issue of liability of parents for the bullying behavior of their child is a slightly more complex. There are a number of considerations. Obviously, knowledge of the parents would be important. However, that is not the end of it even if there was no knowledge, there might be liability.

By statute, a parent‘s liability for the wrongful acts of a child is limited to $4000. The New Mexico Children‘s Code, §32A-2-27(A) states as follows:


“Any person may recover damages not to exceed four thousand dollars ($4,000) in a civil action … from the parent or guardian having custody and control of a child when the child has maliciously or willfully injured a person….”

This seems pretty clear cut. In actuality, this is not the end of the discussion. We have an older article addressing this issue.

Parent Liability for the Negligence of a Child in New Mexico

In a nutshell, the knowledge of the parent is key. If the parents knew of the behavior and did nothing to stop it, then they can be held liable above and beyond the $4000 cap not for the negligence of the child but for their own negligence.

Even This is Not the End of the Story on Liability.

Homeowners Insurance – Back to Premises Liability

This leads us back to the discussion above regarding premises liability law in New Mexico. More specifically, a case such as the one in Florida would raise issues of homeowner‘s insurance.

This is an issue that will be played out in the future. There will be a very good argument for liability under these policies. The insurance companies will most likely argue for exclusion of coverage for intentional tortious acts.

However, homeowner‘s insurance has pretty broad coverage. After all, homeowner‘s insurance covers injuries to guests caused by drunken accidents, reckless behavior, inherently dangerous conditions of the property, dangerous conditions on the property created by the homeowner, and so on.

Perhaps most analogous to the bullying situation would be coverage for dog bites. Homeowners‘ clearly covers injuries to guests from dog bites. There is trend toward exclusions for “dangerous breeds.” However, these exclusions arise at the inception of the policy based upon perceived dangerousness of the breed. They do not arise and cannot be applied in hindsight when it is later discovered that the dog was indeed dangerous.

This situation has some similarity to bullying (without suggesting or implying that children are dogs). After all, most parents would never expect their children to behave in such an atrocious behavior. Nor can insurance companies define all kids as “dangerous” with respect to bullying.

Presuming lack of prior knowledge, it is only in hindsight after the occurrence that the parents learn that the child was in fact dangerous. Where there is knowledge of the parents, an entirely different and more difficult insurance coverage analysis would be in order.

Seek Help!

If your child is a victim of bullying, seek help. Bring it to the attention of the school. Bring it to the attention of the other parents. In cases of ongoing extreme bullying as appears to be the situation in the Florida case, bring it to the attention of the police.

If your child has been seriously harmed by bullying, contact an experienced personal injury attorney. When all else fails, money talks and schools like everyone else hates to part with it.

DISCLAIMER

Related Reading:
Business Owners‘ Duty of Care to Protect Customers from Criminal Acts
Reexamined Duty of Care in New Mexico Personal Injury Lawsuits

There was an interesting article in the ABA Journal recently about a New Jersey case where a remote texter/sender of messages to a driver could be held liable for ensuing auto accidents.

The case raises a number of interesting issues. First, may this signify a trend that will spread to other states? Second, as the article points out, it must be proven that the remote texter knew the other texter was driving, thereby encouraging texting and driving. How will this be proven? Third, if this becomes policy or law, does it make sense? Finally, what is a remote texter and/or driver to do to avoid this liability?

Though any other issues will undoubtedly come up as well, we will focus on those above. On the other hand, it is worth keeping an eye on these other issues, which get to the nuts and bolts of liability for the remote texter. For instance, how will liability be delegated between the two texters? Who is more to blame?

There are also insurance issues to be considered. After all, if there is no insurance to invoke, is it really worth suing a high school kid? This leads to the next question. Even if the remote texter is to blame, how would someone injured as a result proceed against the remote texter? Is this considered related to driving thereby invoking auto insurance coverage? Would it come under homeowners insurance if the texts originate from home? Many more will arise as well with perhaps the insurance industry taking the lead in defending on these various grounds.

Can a Trend be Expected?

Getting back to the topics addressed in the ABA Journal article, this is likely to represent a trend. Texting and driving has catastrophic consequences. Distracted driving in fact leads to over 1000 deaths each year according to the CDC‘s Distracted Driving Fact Sheet. Many of these relate to texting. Many more relate to mobile phone use leading to yet another question of whether this comes next.

It is no secret that the government at all levels, from local to national, is attempting to address this issue. There are many laws regarding texting while driving. As far as I know, there are none addressing criminal liability for remote texting. As a result, the civil side will likely take the lead. With this case in place, it can be expected that where texting played a part an accident, there will be investigations to find out who was at the other end.

Problems with Proving Knowledge

This leads to problems with proving knowledge that the remote texter knew the person at the other end of the text was driving. How would this be proven? What level of proof is required? Perhaps, the standard will be “knew or should have known? “Should have known” will raise even more problems regarding proof. The facts of each case will be determinative but rest assured there would likely be few clear-cut cases al a “I know you‘re driving, but I really can‘t help myself.”

In the New Jersey case, it was found that the burden had not been met. However, as noted by the ABA Journal, this was a case of first impression (i.e. first time in court) so the fact patterns necessary to provide knowledge will likely evolve over time.

Is this Good Law?

If it does become a trend in the courts, does the law make sense? Perhaps, the policy makes sense. Obviously, texting and driving can lead to catastrophic results. The wisdom of the policy will come in its application by the courts.

It may be expected that with the door open on these types of claims, there will come many more lawsuits where the remote texter is named as a defendant. It will be up to the courts to determine the fairness of liability in any particular case. It will be up to the courts to hold the parties to the burden necessary to prove knowledge.

After all, without knowledge, how is one to avoid the consequences of the law. And like other areas of negligence, how can you be held responsible for something you could not avoid or prevent?

What Should Remote Texters Do To Avoid Liability?

Obviously, if you know the recipient of your message is driving, then don‘t text. It can wait. Likewise, if it becomes apparent that the recipient is driving, stop texting. Evidence of driving may be explicit or implicit (i.e. “I‘m driving” v. “I am on my way…”).

Little imagination is required to see how remote texters will be put in a bind when the evidence is much less clear. In short, it is hard to know how to behave in the absence of a clear indication of driving.

Avoiding Liability Does Not Mean Avoiding a Lawsuit

It should be noted that avoiding liability and avoiding a lawsuit are two different things. It may be expected that remote texters will start getting named even without clear evidence of knowledge. This will raise the aforementioned insurance issues.

How would a remote texter defend such a suit in the absence of insurance or significant financial resources to expend on a legal defense? The law will evolve over time. In the meantime, there will likely be many innocent remote texters ensnared in lawsuits right along with the guilty.

DISCLAIMER

Related Reading:
Car Accidents: A Leading Cause of Death in Teens
Hypertexting & Hypernetworking: Busy Hands are the Workshop of the Devil?
Employer Liability for Texting Employees

How can you protect sensitive health records? The Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of your sensitive health records.

This protection comes into play in most every personal injury case. It is particularly important in cases involving significant levels of medical records and medical discovery. These would include medical malpractice cases and cases involving very serious injury with significant and ongoing medical treatment.

Keep in mind that these records will generally have to be turned over the other side at some point for a number of reasons, most important of which is to establish damages. However, there are HIPAA protections as to how and when these documents are turned over.

What is HIPAA?

It‘s an act that Congress passed in 1996, and according to the Department of Health and Human Services (HHS), it does the following:

  • It provides the ability for American workers to transfer and continue healthcare coverage when they change or lose their jobs
  • It reduces incidents of healthcare fraud and abuse
  • It mandates industry-wide standards for healthcare info related to electronic billing and other processes
  • It requires the protection and confidential handling of protected health info

For purposes of healthcare privacy, the requirement related to the protection and handling of health information is the most significant. Under this requirement, healthcare providers must “develop and follow procedures that ensure the confidentiality and security of protected health information” any time that it‘s transferred, received, handled, or shared. This includes any form of protected health information, whether it‘s paper, oral, or electronic. In addition, HIPAA requires that only a minimum of health information “necessary to conduct business” can be used or shared.

How Exactly Does HIPAA Protect Our Privacy?

As healthcare professionals rely more and more on electronic health records, it seems that there are greater threats to the privacy of our sensitive health records. In order to ensure privacy, there‘s a HIPAA Privacy Rule that healthcare professionals must abide by.

First, it‘s important to know who is covered by the Privacy Rule. HHS explains that the Privacy Rule applies to health plans, healthcare clearinghouses, and “to any healthcare provider who transmits health information in electronic form” in connection with certain transactions.

  • Health Plans: these include health, medical, dental, vision, prescription drug insurers, health maintenance organizations (HMOs), Medicare, Medicaid, and long-term care insurers. The health plans described here are covered by HIPAA‘s Privacy Rule.
  • Health Care Providers: regardless of the size of the healthcare organization, every health care provider is a “covered entity.” In other words, every health care provider must abide by HIPAA privacy standards.
  • Health Care Clearinghouses: these are “entities that process nonstandard information they receive from another entity into a standard (meaning a standard format or data content). They include billing services, re-pricing companies, and community health management information systems. These entities typically only receive patient information when they‘re providing these processing services to healthcare providers. Only “Certain provisions of the Privacy Rule” are applicable to the information that‘s processed by these clearinghouses.

Court Orders and Subpoenas: HIPAA Privacy May Not Always Apply

While the Privacy Rule protects your health records in most circumstances, a court order can require a healthcare provider to disclose your protected health information, according to an HHS.

A subpoena is different from a court order, and it can only require disclosure of private health information if certain steps are taken. According to the Privacy Rule, a healthcare provider can only disclose protected health information to a party that issues a subpoena if it meets the notification requirements of the Privacy Rule. These include:

  • Notifying the person who is the subject of the information so that the person can object to the disclosure, or
  • Seeking a qualified protective order for the information

What is a HIPAA Qualified Protective Order? Under 45 C.F.R. § 164.512(e) of the HIPAA Privacy Regulations, this document can help protect you when someone is trying to subpoena your sensitive health records. The Qualified Protective Order can do two things:

  • Prohibit a person or entity from using or disclosing protected health information for any purpose other than the litigation (or other proceeding) for which it was requested, and
  • Require a person or entity to return the health information to the covered entity (typically, the healthcare provider) or to destroy it (including all copies made) at the end of the court proceeding.

If you are involved in personal injury case, it is important to understand your rights to privacy. These rights will be balanced against the rules of discovery. After all, to prove you are hurt and the seriousness of those injuries will require medical documentation. Without it, it will be difficult, if not impossible, to prevail in your case.

DISCLAIMER

Related Readings:
Medical Privacy in a Personal Injury Case
Discovery in a Personal Injury Lawsuit: Often Difficult and Expensive but Always Necessary!
Disclosing Pre-Existing Conditions and Injuries in a Personal Injury Case

The fact is that medical care can be quite hazardous to your health. The numbers on medical negligence, medication errors, and injury and wrongful death caused by these preventable medical errors are pretty stark. The numbers could make one fearful of a visit to a doctor‘s office or hospital.

Take heart care for example, there are a number of things that can be done to protect yourself and/or your loved ones. Some medical errors are easily prevented with a certain amount of vigilance on the part of the patient. There are few important, perhaps essential, measures that should be taken to protect yourself against preventable medical errors.

Patient Advocate

One of the most important things a patient can do is to have a patient advocate present at all important medical visits or procedures. The patient may not be in a position to protect himself in many situations, such as emergency care, surgery, hospital stays and other situations where the patient may not be fully cognizant of all that is happening around him. The patient advocate is there to act as the patient‘s eyes and ears to protect the patient to the necessary degree from possible harm by medical negligence.

Patient Identification

Remarkably, some preventable medical errors result from the fact that the medical providers are working on the wrong patient. This could be the result of simple medical error or inattentiveness of various medical providers and staff in the chain of care.
It is extremely important to make sure that all identifying information is correct in each and every chart or other document reviewed by the patient. This means checking all information.

This would obviously include the patient name. Likewise, it would include the patient‘s patient ID or social security number, or both if used by the medical provider. It may be that medical providers get into a hurry and check only one or the other so it is important that both are correct.

Identification of Health Issues

Just a surprising as the fact that medical providers can confuse the patient, the medical providers may confuse the health issue. It is important to make sure that all charts and documents related to your care accurately list the health issues for which you are being treated.

This problem, along with the problem with misidentification of the patient, can lead to some very serious problems. These include medication errors, which are rampant in hospitals with estimates suggesting every hospital patient will on average suffer one medication error per day. Some of these may be harmless. Others can have extremely serious and even deadly consequences.

Perhaps most troubling of all is the fact that medical providers may operate on the wrong organs or body parts. It has been recommended, by patient advocates, that the patient or his patient advocate actually mark the surgery site such as a big X on the arm to be operated on. If the surgery is on an internal organ, as a gentle reminder and to focus the medical providers attention, it might be advisable to actually write the name of the organ at the incision site.

Essential Precautions – Record Collection and Verification

In order to do some of the things above, it is necessary to review your medical file. It is important to request your medical records including all doctors and nursing notes after each visit.

This may make you uncomfortable, but it shouldn‘t. There are plenty of reasons for this practice including the issues set forth above. Beyond those reasons, it is important to review the records and notes to make sure that everything is accurate.

It is not just medical negligence that could cause errors in your file. It may very well be a simple lack of effective communication. The medical provider may have misinterpreted or otherwise misunderstood your comments during the visit.

This could be the result of inattention on the part of the medical provider. It could just as easily be the result of a failure by the patient to accurately and clearly explain the medical issues, symptoms of problems. This is another good reason to have a patient advocate.

In any event, you should review the records to make sure you and the medical provider have understood one another. Seeing it in writing may make it crystal clear that you have not.

DISCLAIMER

Related Readings:
Hospital Medication Errors More Common Than One Might Think
Hospital Survival: The Numbers
Simple Surgical Checklist Can Save Patient Lives!

A Medical Power of Attorney basically allows you to choose someone you trust to make medical decisions on your behalf should you become incapacitated. Why is this instrument necessary prior to hospital care? The numbers on medical negligence make the need clear.

The Numbers on Medical Error

Many medical errors, or simply bad outcomes, are unavoidable. Not every bad result stems from medical negligence. The numbers below relate only to preventable medical error and do not factor in unavoidable error. This actually suggests an even greater need for patient diligence.

The estimates vary tremendously on preventable medical error. The numbers below represent only a smattering of the estimates on various medical errors in hospitals. It is important to do your own research. In particular, it is important to look into the facility and the providers where you will be treated.

The landmark study from the Institute of Medicine‘s 1999 report “To Err is Human” put the number of deaths by preventable medical error at 98,000 per year. The numbers apparently have gotten much worse since with estimates now as high as 187,000 per year.

Studies suggest that 1 in 3 hospital patients will be harmed by preventable medical error. Infections in hospitals have become so rampant that medical providers will argue that they are an inherent and unavoidable risk of hospitalization.

Finally, it is estimated by the Institute of Medicine, that patients in hospitals suffer an average of one medication error per day. This equates to injury by medication error to 1.5 million Americans each year. Worse yet, it is estimated that these errors result in 7000 deaths per year.

These numbers go on and on. So what‘s the point? The point is that you need to plan for the unfortunate event that you become a victim of medical negligence.

Purpose of Medical Power of Attorney

As stated in the opening paragraph, the purpose of the medical power of attorney is to allow someone you trust to make medical decisions on your behalf in the event that you cannot make them yourself. In light of the numbers above, as much as we would like to believe otherwise, this is a definite possibility even for routine procedures.

The medical power of attorney is effective upon signing. Its duration can be set in advance or made indefinite. In the case that it is indefinite, it would lapse whenever you become competent again to make your own decisions.

The power of attorney is not to put someone in charge of your medical care over and above your own decision making. It is to give the person power to make those decisions if you cannot. As such, the person so designated cannot make decisions that are against your wishes. If you are able to make the decisions, you make the decisions.

This means that if you do not suffer an incapacitating event, then the power of attorney will effectively be nullified, since the power of attorney kicks in only if you are incompetent.

Finally, you have the power to limit the authority under the power of attorney by any means you see fit. These limitations would be spelled out in the power of attorney itself.

Routine v. Extraordinary Procedures

Most patients contemplate a medical power of attorney only in the case of extraordinary surgeries, where incapacitation is a predicable and unavoidable risk of the procedure. For instance, most patients consider the power of attorney prior to serious and risky surgeries.

However, in light of the numbers on medical error and the complications that come with those errors, it is highly advisable to create a medical power of attorney before any hospital stay. Likewise, it is advisable to do the same for any out-patient invasive procedure.

Because some medical care is unexpected and unpredictable; such as trips to the emergency room (where a high number of errors occur), it is advisable to have the medical power of attorney in place at all times. After all, for instance, if you are seriously injured in a car accident, it is highly unlikely that you will consider or have the opportunity to enter the medical power of attorney prior to treatment.

Educate Yourself on Patient Safety

There are many steps that you may take to protect yourself in medical care. This is only one. Educate yourself on all issues related to patient safety. It quite literally can mean the difference between life and death.

DISCLAIMER

Related Readings
Hospital Survival: The Numbers
Simple Surgical Checklist Can Save Patient Lives!
Hospital Survival: Essential Strategies
The Myth of the Frivolous Medical Malpractice Lawsuit

According to the Centers for Disease Control and Prevention, as many as 1 out of every 10 nursing home residents suffer from bedsores. Also known as pressure sores, decubitus ulcers, and pressure ulcers, bedsores may be symptomatic of a greater problem of nursing home neglect.

Bedsores a leading cause of iatrogenic death in the U.S. according to numerous reports. An iatrogenic death is an unexpected death caused by medical treatment. Bedsores are caused by constant unrelieved pressure and poor circulation. They are more likely to occur in areas where bone and skin are in close contact–like the back of the head, lower back, hip, elbow, and ankle areas. People with limited mobility are more prone to acquiring pressure sores.

Bedsores are divided into four stages depending on severity; from stage I, where the site is painful but the skin is intact, to stage IV, where there is large-scale loss of tissue. Pressure sores are treatable if discovered early, but they may be fatal in some cases if not properly detected and treated. Unfortunately, the treatment of bedsores is slow and painful.

Bedsores are among the most common injuries acquired in nursing homes and may signal other forms of nursing home negligence and neglect. The development of bedsores on nursing home residents may indicate several mistakes made on the part of the nursing home staff, from negligent monitoring, to poor nutrition, lack of exercise, lack of hygiene, or improperly managed incontinence.

Despite mobility problems, paralysis, and coma, studies show that most bedsores are preventable if nursing homes are attentive and properly care for patients. In fact, to participate in Medicare and Medicaid, nursing homes must comply with several federal laws regarding nursing home care that specifically address bedsores.

Under 42 CFR 483.25, nursing homes have the duty to prevent patients from developing pressure sores. For patients with existing pressure sores, nursing homes have the duty to provide proper treatment to ensure that the sores heal, do not become infected, and do not spread to other areas.

To ensure their compliance with these regulations, nursing homes often employ a bedsore prevention program that consists of regular evaluations and the development of a care plan. The problem is that in most cases of bedsores, prevention programs and care plans have been in place but have been improperly implemented or ignored by nursing home staff.

What is even more troubling is that in cases where there were allegations of neglect related to bedsores, the accusations were often accompanied by evidence that the nursing home altered records in an attempt to cover up their negligence.

Even though they may be difficult to prevent, nursing homes have a duty to monitor all patients for the development of pressure sores. For patients with limited mobility issues, the nursing home should implement a care plan to ensure that bedsores do not develop. If bedsores are present, the nursing home staff has a duty to discover them in their early, treatable stages, and to provide adequate treatment.

In light of the fact that bedsores in patients may lead to a reduction in Medicare and Medicaid reimbursements not to mention large jury awards, many nursing homes try to shift responsibility to the patient. On several occasions, nursing homes have argued that bedsores were unavoidable due to the patient‘s old age, mobility issues, and obesity. Other nursing homes have argued that the patient did not comply with medical advice, the patient acquired the bedsore prior to admission, or the patient suffered from a medical complication such as diabetes.

Regardless of all of the above, the nursing home has a duty to evaluate each patient individually, identify bedsores or risk for bedsores, and act accordingly. At no time should bedsores go undetected for an extended period or reach a stage of infection where they are no longer treatable.

If a loved one has developed bedsores at a nursing home this may be a sign of neglect, for which there may be a personal injury claim. If you discover a bedsore, you should demand immediate treatment and a plan to avoid future such issues. If the bedsores are advanced or recurring in nature, you should probably seek the advice of a personal injury attorney to protect your loved one.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER

The recent explosion of social media (Facebook, Twitter, MySpace, Foursquare, Tumblr, Linked-In, and many others whose numbers grow daily) is creating a number of risks for its users. Some of the perils of social media have already had extremely negative and well publicized consequences for the imprudent user.

These include loss of employment and employment opportunities, criminal charges, loss of all varieties of lawsuits, discovery sanctions, contempt findings, and on and on. These are just the beginning of the hazards that have been laid by the imprudent and often reckless social media practices of its users. The problems are likely to get worse, and certainly more frequent due to the continuing explosive growth of social media.

Just for a quick look at the numbers. Facebook claims in excess of 800 million users. Twitter is somewhere in the vicinity of 200 million. LinkedIn is growing rapidly topping 100 million. MySpace is in decline but still has a huge membership. Then there are new sites that seemingly pop up on a daily basis.

With each, people have often posted some level of private information, some of which can be quite useful in litigation or even just for sizing up potential associates, partners, employees or others in anticipation of a business (or personal) relationship. These uses should be common knowledge by now which suggests the question of why folks continue to post their most intimate, private and sometimes damaging thoughts, actions, behaviors, hobbies, activities, and so on to the world.

One interesting trend to watch is the use of social media by insurance companies. In fact, insurance companies were among the earliest adopters of the opportunities in social media. For instance, many personal injury lawsuits have been completely undermined by ill-advised Facebook posts such as pictures from ski vacations, frolicking on the beach, hiking, working in the yard and so on which make claims of incapacitating physical injuries from a car accident somewhat difficult to support.

The insurance industry is said to now be scouring social media to find indications of deceit on insurance applications. Such deceit may be a basis for denying coverage on claims. It also may form the basis for higher premiums. After all, those pictures of your partying, boozing, smoking, and sky-diving with your friends may put you in another life insurance premium bracket than the non-smoking, non-drinking, conservative you that filled out the application. There are other possible problems as well with such posts that will have already arisen and most certainly will continue at an escalating pace in the very near future.

Now for the bad news. If it is posted, you cannot get rid of it. It is there for eternity. Not only can‘t you fully delete these damaging posts, the attempt to delete them can result in very serious consequences too numerous and too complex to address here in closing. The bottom line is that your social media posts are permanent. As Joe Friday might caution, “anything you post can and will be used against you in a court of law” and by prosecutors, your employers, your insurer, your spouse (your ex-spouse), your kids, your neighbor, your dog, and anyone else that spots an opportunity to utilize your posts against you.

One last thing, check your privacy settings!!! Honestly, does this still need to be said?

DISCLAIMER