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Surgeon marks ‘right’ instead of ‘left’ testicle, then operates
Wrong-site surgery
Florida regulators have imposed a fine and other measures on a Tampa doctor who made a crucial error prior to his patient’s testicular surgery, as a story in the Miami Herald, among other news sites, reports.
On Sept. 10, 2019, a patient referred to in state documents as “C.F.” showed up for a procedure – a varicocelectomy – that would remove the enlarged veins in his left testicle. His doctor that day was Raul Fernandez-Crespo, MD, a urologist who had been licensed to practice in Florida since April of the same year. Dr. Fernandez-Crespo completed his urology residency at the University of Puerto Rico in 2019.
Following a conversation with C.F., Dr. Fernandez-Crespo designated what he believed was the proper surgical site – his patient’s right testicle.
He then proceeded to operate, but at some point during the procedure – news accounts don’t make clear when or how he became aware of his error – he realized C.F. had actually consented to a left-testicle varicocelectomy. With his patient still sedated, Dr. Fernandez-Crespo also completed the second procedure.
His mistake came to the attention of the Department of Health, which filed an administrative complaint against the surgeon. On June 17, 2021, the department’s medical licensing body, the Florida Board of Medicine, handed down its final order about the case.
In addition to imposing a $2,500 fine on Dr. Fernandez-Crespo and issuing “a letter of concern” – a public document that can be used as evidence in any relevant future disciplinary action against him – regulators said the surgeon must reimburse $2,045.56 to the department for its case-related administrative costs; take a 5-hour CME course in risk management or attend 8 hours of board disciplinary hearings; and, finally, give a 1-hour lecture on wrong-site surgeries at a board-approved medical facility.
Before this, Dr. Fernandez-Crespo had no previous disciplinary history with the Florida Board of Medicine.
Huge judgment after fertility procedure goes wrong
A Connecticut couple whose fertility and prenatal care at a state university health center proved disastrous will receive millions of dollars in damages, according to a report in the Hartford Courant.
In 2014, Jean-Marie Monroe-Lynch and her husband, Aaron Lynch, went to UConn Health, in Farmington, for treatment of Jean-Marie’s infertility. Her care was overseen by the Center for Advanced Reproductive Services (CARS), a private company then under contract with UConn Health. (The contract, which ended in 2014, obligated UConn to provide CARS providers with medical malpractice coverage.)
There, Jean-Marie was inseminated with sperm from a donor who turned out to be a carrier for cytomegalovirus (CMV), the herpes virus that can cause severe birth defects, or fetal death, when contracted by a pregnant woman. The insemination resulted in a twin pregnancy, a boy and a girl. The girl, Shay, died in utero after several of her organs became infected with CMV; the boy, Joshua, was born with severe mental and physical disabilities.
In their suit, Ms. Monroe-Lynch and her husband alleged that they were never cautioned about the risks associated with using a sperm donor whose blood had tested positive for CMV antibodies. Their suit further alleged that, at the 20-week ultrasound, UConn’s prenatal team failed to detect evidence of congenital CMV infection and again failed, at the 22-week ultrasound, to properly recognize and respond to abnormal findings.
“They totally dropped the ball,” said the couple’s attorney. “If you’re a pregnant woman and contract the virus for the first time, the results can be devastating.”
CARS disputes this conclusion, arguing that the plaintiffs failed to prove as a “matter of scientific fact” that Ms. Monroe-Lynch was infected with CMV as the result of her intrauterine insemination.
But Superior Court Judge Mark H. Taylor disagreed. In his 107-page ruling, he said that the court “agrees with the vast majority of superior courts, concluding that a physician providing obstetric care owes a direct duty to a mother to prevent harm to her child during gestation and delivery.”
Jean-Marie Monroe-Lynch and Aaron Lynch received a $37.6 million award, consisting of $24.1 million in economic damages and $13.5 million in noneconomic damages.
Their surviving child, Joshua, will reportedly require a lifetime of medical and other care. In the meantime, UConn Health vows to appeal the Superior Court’s decision.
COVID patient’s relative demands justice for fatal outcome
An Indiana man whose grandfather recently died after suffering a stroke is calling on state lawmakers to rethink legislation passed earlier this year to protect health care providers during the COVID-19 pandemic, according to a story reported by CBS4Indy.
Late last year, Daniel Enlow’s 83-year-old grandfather, Edward Rigney, was checked into Eskenazi Hospital, in Indianapolis. Mr. Rigney suffered from COPD and had also been diagnosed with COVID-19.
At some point during his hospitalization, medical staff attempted to place what seems to have been an arterial line in order to monitor his condition. During the procedure, or at some point shortly thereafter, an “iatrogenic air embolus” was released into his veins and caused a stroke, according to medical records and Mr. Rigney’s death certificate.
“I started asking for medical records because I wanted to know what was happening leading up to it in black and white in front of me,” said Mr. Enlow, who wished to present his evidence to a medical review panel, as required by Indiana law. The first step in this process would have been to consult with a medical malpractice attorney, but several declined to take his case.
Why? Because a pair of bills passed by Indiana legislators in early 2021 make COVID-19–related suits – even tangentially related ones – potentially difficult to take to court.
The bills raised the bar to file a medical malpractice claim in COVID-19 cases and to allow only those that involve “gross negligence or willful or wanton misconduct.”
“In the vast majority of cases, it’s impossible to prove that,” said Fred Schultz, immediate past president of the Indiana Trial Lawyers Association, who lobbied against the legislation.
The bills were never designed to offer “blanket freedom,” said GOP State Senator Aaron Freeman, sponsor of one of the bills. “If something is being used in a way that it is a complete bar to certain claims, then maybe we need to go back and look at it and open that up a little bit and make it less restrictive. I’m certainly open to having those conversations.”
Meanwhile, Mr. Enlow has vowed to keep pushing in the name of his late grandfather. The hospital’s parent company, Eskenazi Health, has declined to comment.
A version of this article first appeared on Medscape.com.
Wrong-site surgery
Florida regulators have imposed a fine and other measures on a Tampa doctor who made a crucial error prior to his patient’s testicular surgery, as a story in the Miami Herald, among other news sites, reports.
On Sept. 10, 2019, a patient referred to in state documents as “C.F.” showed up for a procedure – a varicocelectomy – that would remove the enlarged veins in his left testicle. His doctor that day was Raul Fernandez-Crespo, MD, a urologist who had been licensed to practice in Florida since April of the same year. Dr. Fernandez-Crespo completed his urology residency at the University of Puerto Rico in 2019.
Following a conversation with C.F., Dr. Fernandez-Crespo designated what he believed was the proper surgical site – his patient’s right testicle.
He then proceeded to operate, but at some point during the procedure – news accounts don’t make clear when or how he became aware of his error – he realized C.F. had actually consented to a left-testicle varicocelectomy. With his patient still sedated, Dr. Fernandez-Crespo also completed the second procedure.
His mistake came to the attention of the Department of Health, which filed an administrative complaint against the surgeon. On June 17, 2021, the department’s medical licensing body, the Florida Board of Medicine, handed down its final order about the case.
In addition to imposing a $2,500 fine on Dr. Fernandez-Crespo and issuing “a letter of concern” – a public document that can be used as evidence in any relevant future disciplinary action against him – regulators said the surgeon must reimburse $2,045.56 to the department for its case-related administrative costs; take a 5-hour CME course in risk management or attend 8 hours of board disciplinary hearings; and, finally, give a 1-hour lecture on wrong-site surgeries at a board-approved medical facility.
Before this, Dr. Fernandez-Crespo had no previous disciplinary history with the Florida Board of Medicine.
Huge judgment after fertility procedure goes wrong
A Connecticut couple whose fertility and prenatal care at a state university health center proved disastrous will receive millions of dollars in damages, according to a report in the Hartford Courant.
In 2014, Jean-Marie Monroe-Lynch and her husband, Aaron Lynch, went to UConn Health, in Farmington, for treatment of Jean-Marie’s infertility. Her care was overseen by the Center for Advanced Reproductive Services (CARS), a private company then under contract with UConn Health. (The contract, which ended in 2014, obligated UConn to provide CARS providers with medical malpractice coverage.)
There, Jean-Marie was inseminated with sperm from a donor who turned out to be a carrier for cytomegalovirus (CMV), the herpes virus that can cause severe birth defects, or fetal death, when contracted by a pregnant woman. The insemination resulted in a twin pregnancy, a boy and a girl. The girl, Shay, died in utero after several of her organs became infected with CMV; the boy, Joshua, was born with severe mental and physical disabilities.
In their suit, Ms. Monroe-Lynch and her husband alleged that they were never cautioned about the risks associated with using a sperm donor whose blood had tested positive for CMV antibodies. Their suit further alleged that, at the 20-week ultrasound, UConn’s prenatal team failed to detect evidence of congenital CMV infection and again failed, at the 22-week ultrasound, to properly recognize and respond to abnormal findings.
“They totally dropped the ball,” said the couple’s attorney. “If you’re a pregnant woman and contract the virus for the first time, the results can be devastating.”
CARS disputes this conclusion, arguing that the plaintiffs failed to prove as a “matter of scientific fact” that Ms. Monroe-Lynch was infected with CMV as the result of her intrauterine insemination.
But Superior Court Judge Mark H. Taylor disagreed. In his 107-page ruling, he said that the court “agrees with the vast majority of superior courts, concluding that a physician providing obstetric care owes a direct duty to a mother to prevent harm to her child during gestation and delivery.”
Jean-Marie Monroe-Lynch and Aaron Lynch received a $37.6 million award, consisting of $24.1 million in economic damages and $13.5 million in noneconomic damages.
Their surviving child, Joshua, will reportedly require a lifetime of medical and other care. In the meantime, UConn Health vows to appeal the Superior Court’s decision.
COVID patient’s relative demands justice for fatal outcome
An Indiana man whose grandfather recently died after suffering a stroke is calling on state lawmakers to rethink legislation passed earlier this year to protect health care providers during the COVID-19 pandemic, according to a story reported by CBS4Indy.
Late last year, Daniel Enlow’s 83-year-old grandfather, Edward Rigney, was checked into Eskenazi Hospital, in Indianapolis. Mr. Rigney suffered from COPD and had also been diagnosed with COVID-19.
At some point during his hospitalization, medical staff attempted to place what seems to have been an arterial line in order to monitor his condition. During the procedure, or at some point shortly thereafter, an “iatrogenic air embolus” was released into his veins and caused a stroke, according to medical records and Mr. Rigney’s death certificate.
“I started asking for medical records because I wanted to know what was happening leading up to it in black and white in front of me,” said Mr. Enlow, who wished to present his evidence to a medical review panel, as required by Indiana law. The first step in this process would have been to consult with a medical malpractice attorney, but several declined to take his case.
Why? Because a pair of bills passed by Indiana legislators in early 2021 make COVID-19–related suits – even tangentially related ones – potentially difficult to take to court.
The bills raised the bar to file a medical malpractice claim in COVID-19 cases and to allow only those that involve “gross negligence or willful or wanton misconduct.”
“In the vast majority of cases, it’s impossible to prove that,” said Fred Schultz, immediate past president of the Indiana Trial Lawyers Association, who lobbied against the legislation.
The bills were never designed to offer “blanket freedom,” said GOP State Senator Aaron Freeman, sponsor of one of the bills. “If something is being used in a way that it is a complete bar to certain claims, then maybe we need to go back and look at it and open that up a little bit and make it less restrictive. I’m certainly open to having those conversations.”
Meanwhile, Mr. Enlow has vowed to keep pushing in the name of his late grandfather. The hospital’s parent company, Eskenazi Health, has declined to comment.
A version of this article first appeared on Medscape.com.
Wrong-site surgery
Florida regulators have imposed a fine and other measures on a Tampa doctor who made a crucial error prior to his patient’s testicular surgery, as a story in the Miami Herald, among other news sites, reports.
On Sept. 10, 2019, a patient referred to in state documents as “C.F.” showed up for a procedure – a varicocelectomy – that would remove the enlarged veins in his left testicle. His doctor that day was Raul Fernandez-Crespo, MD, a urologist who had been licensed to practice in Florida since April of the same year. Dr. Fernandez-Crespo completed his urology residency at the University of Puerto Rico in 2019.
Following a conversation with C.F., Dr. Fernandez-Crespo designated what he believed was the proper surgical site – his patient’s right testicle.
He then proceeded to operate, but at some point during the procedure – news accounts don’t make clear when or how he became aware of his error – he realized C.F. had actually consented to a left-testicle varicocelectomy. With his patient still sedated, Dr. Fernandez-Crespo also completed the second procedure.
His mistake came to the attention of the Department of Health, which filed an administrative complaint against the surgeon. On June 17, 2021, the department’s medical licensing body, the Florida Board of Medicine, handed down its final order about the case.
In addition to imposing a $2,500 fine on Dr. Fernandez-Crespo and issuing “a letter of concern” – a public document that can be used as evidence in any relevant future disciplinary action against him – regulators said the surgeon must reimburse $2,045.56 to the department for its case-related administrative costs; take a 5-hour CME course in risk management or attend 8 hours of board disciplinary hearings; and, finally, give a 1-hour lecture on wrong-site surgeries at a board-approved medical facility.
Before this, Dr. Fernandez-Crespo had no previous disciplinary history with the Florida Board of Medicine.
Huge judgment after fertility procedure goes wrong
A Connecticut couple whose fertility and prenatal care at a state university health center proved disastrous will receive millions of dollars in damages, according to a report in the Hartford Courant.
In 2014, Jean-Marie Monroe-Lynch and her husband, Aaron Lynch, went to UConn Health, in Farmington, for treatment of Jean-Marie’s infertility. Her care was overseen by the Center for Advanced Reproductive Services (CARS), a private company then under contract with UConn Health. (The contract, which ended in 2014, obligated UConn to provide CARS providers with medical malpractice coverage.)
There, Jean-Marie was inseminated with sperm from a donor who turned out to be a carrier for cytomegalovirus (CMV), the herpes virus that can cause severe birth defects, or fetal death, when contracted by a pregnant woman. The insemination resulted in a twin pregnancy, a boy and a girl. The girl, Shay, died in utero after several of her organs became infected with CMV; the boy, Joshua, was born with severe mental and physical disabilities.
In their suit, Ms. Monroe-Lynch and her husband alleged that they were never cautioned about the risks associated with using a sperm donor whose blood had tested positive for CMV antibodies. Their suit further alleged that, at the 20-week ultrasound, UConn’s prenatal team failed to detect evidence of congenital CMV infection and again failed, at the 22-week ultrasound, to properly recognize and respond to abnormal findings.
“They totally dropped the ball,” said the couple’s attorney. “If you’re a pregnant woman and contract the virus for the first time, the results can be devastating.”
CARS disputes this conclusion, arguing that the plaintiffs failed to prove as a “matter of scientific fact” that Ms. Monroe-Lynch was infected with CMV as the result of her intrauterine insemination.
But Superior Court Judge Mark H. Taylor disagreed. In his 107-page ruling, he said that the court “agrees with the vast majority of superior courts, concluding that a physician providing obstetric care owes a direct duty to a mother to prevent harm to her child during gestation and delivery.”
Jean-Marie Monroe-Lynch and Aaron Lynch received a $37.6 million award, consisting of $24.1 million in economic damages and $13.5 million in noneconomic damages.
Their surviving child, Joshua, will reportedly require a lifetime of medical and other care. In the meantime, UConn Health vows to appeal the Superior Court’s decision.
COVID patient’s relative demands justice for fatal outcome
An Indiana man whose grandfather recently died after suffering a stroke is calling on state lawmakers to rethink legislation passed earlier this year to protect health care providers during the COVID-19 pandemic, according to a story reported by CBS4Indy.
Late last year, Daniel Enlow’s 83-year-old grandfather, Edward Rigney, was checked into Eskenazi Hospital, in Indianapolis. Mr. Rigney suffered from COPD and had also been diagnosed with COVID-19.
At some point during his hospitalization, medical staff attempted to place what seems to have been an arterial line in order to monitor his condition. During the procedure, or at some point shortly thereafter, an “iatrogenic air embolus” was released into his veins and caused a stroke, according to medical records and Mr. Rigney’s death certificate.
“I started asking for medical records because I wanted to know what was happening leading up to it in black and white in front of me,” said Mr. Enlow, who wished to present his evidence to a medical review panel, as required by Indiana law. The first step in this process would have been to consult with a medical malpractice attorney, but several declined to take his case.
Why? Because a pair of bills passed by Indiana legislators in early 2021 make COVID-19–related suits – even tangentially related ones – potentially difficult to take to court.
The bills raised the bar to file a medical malpractice claim in COVID-19 cases and to allow only those that involve “gross negligence or willful or wanton misconduct.”
“In the vast majority of cases, it’s impossible to prove that,” said Fred Schultz, immediate past president of the Indiana Trial Lawyers Association, who lobbied against the legislation.
The bills were never designed to offer “blanket freedom,” said GOP State Senator Aaron Freeman, sponsor of one of the bills. “If something is being used in a way that it is a complete bar to certain claims, then maybe we need to go back and look at it and open that up a little bit and make it less restrictive. I’m certainly open to having those conversations.”
Meanwhile, Mr. Enlow has vowed to keep pushing in the name of his late grandfather. The hospital’s parent company, Eskenazi Health, has declined to comment.
A version of this article first appeared on Medscape.com.
Wrong-site surgery doc says he can’t be sued
A neurosurgeon who operated on the wrong side of his patient’s spine claims he can’t be sued because of a federal law that protects health care professionals during a public health emergency, according to a report by KSDK, an NBC-affiliated television station in St. Louis.
Natalie Avilez, who lives in Missouri with her husband and five children, had been suffering from intense back pain. At some point in the recent past (the story doesn’t identify precisely when), she was referred to Fangxiang Chen, MD, a neurosurgeon affiliated with Mercy Hospital and Mercy Hospital South, in St. Louis. Ms. Avilez reportedly claims that Dr. Chen told her that an “easy” surgery – a hemilaminectomy – could relieve her back pain.
Something went wrong during the procedure, however. Dr. Chen ended up operating on the left side of Avilez’s spine instead of the right side, where he had initially diagnosed disk-related pressure. Dr. Chen realized his mistake while his patient was under anesthesia but couldn’t remedy it.
As the patient awakened, Dr. Chen asked her to authorize an immediate right-side surgery, but, as Ms. Avilez told the TV station, her “charge nurse would not let him get authorization because I wasn’t fully awake.” In the recovery room afterward, Dr. Chen explained what had happened to his patient, who permitted him to redo the surgery the following day.
But the redo didn’t remedy Ms. Avilez’s pain; in fact, the second surgery made things worse. “I’m always in constant pain,” she said. “I kind of feel like I would have been better off not even doing it at all.”
In January of this year, Ms. Avilez filed a medical malpractice suit against Dr. Chen and Mercy. But the neurosurgeon made a surprising claim:
Initially passed in 2005, PREP was intended to shield doctors and other licensed health care professionals from liability during a public health emergency except in cases of willful misconduct. On March 17, 2020, then–Health and Human Services Secretary Alex Azar invoked the PREP Act “for activities related to medical countermeasures against COVID-19.”
But could this declaration – which has since been amended multiple times – shield a physician from a claim of wrong-site surgery?
Ms. Avilez’s attorney, Morgan Murphy, doesn’t think so. “Obviously, we are not claiming that COVID had anything to do with the fact that Dr. Chen operated on the incorrect side of Natalie’s spine. It is a fairly straightforward situation. A doctor should never perform the incorrect surgery, period.”
Other observers are less certain that the Chen defense won’t hold. It’s true the PREP Act doesn’t protect doctors against claims of willful or intentional misconduct, says Deidre Gilbert, who leads a national medical malpractice patient-advocacy group. But such claims are, she quickly adds, very difficult to prove, never more so than during a pandemic.
Several states, including Missouri, have passed or are considering additional measures to protect health care professionals against the expected wave of COVID-related claims. (One estimate places the number of those claims at almost 6,000 as of February 2021.) “We want to make sure that there is a heightened standard for holding somebody liable in ... COVID transmission cases,” said the sponsor of the proposed Show-Me State legislation.
As for Ms. Avilez, she feels lucky that she’s not even worse off than she is now. She worries, though, about other patients who are less fortunate and who are told that the pandemic protects their health care professionals from liability. “That’s just not fair,” she says.
Hidden beliefs about people of color raise liability risks
Clinicians’ “implicit bias” can exacerbate medical disparities and also malpractice claims, a story in the Dayton Daily News reports.
The story’s authors cite La Fleur Small, PhD, a medical sociologist at Wayne State University, in Detroit, who sees “implicit bias” as a set of “unconscious associations and judgments” that affect social behavior, causing people to act in ways that are often contrary to their perceived value system. In the medical profession, such thinking can have unintended consequences, especially for people of color.
Implicit bias can erode the physician-patient relationship, which in turn can make a malpractice suit more likely should an adverse event occur. Studies reported in recent years in the AMA Journal of Ethics, for instance, found that poor communication was a factor in almost three-quarters of closed claims. Other studies have revealed that, of patients seeking legal advice following a medical mishap, more than half cited a poor doctor-patient relationship as a contributing factor in their decision.
To remedy things, it would be helpful to boost the number of doctors of color, at least to the point that it more closely reflects the percentage in the general population, say experts. Currently, although Black and Hispanic persons constitute 13.4% and 18.5%, respectively, of the overall U.S. population, they make up only 5.0% and 5.8% of active physicians. (As of 2018, 56.2% of all physicians were White and 17.2% were Asian, according to data from the Association of American Medical Colleges.)
Father of impaired baby seeks mega damages
An Oregon man whose son sustained permanent neurologic injuries during childbirth has sued the hospital where the 2017 delivery took place, as reported in The Astorian.
In the suit on behalf of his son, Wesley Humphries claims that Columbia Memorial Hospital in Astoria, Oregon, failed to monitor the baby’s heart rate and other aspects of the labor and delivery. As a consequence, the baby needed to be transferred to Oregon Health and Science University Hospital in Portland, approximately 100 miles away, for emergency treatment. Doctors there diagnosed the child as having hypoxic ischemic encephalopathy, which his lawyers say resulted in cerebral palsy, among other neurologic conditions.
Because of his son’s permanent impairment, Mr. Humphries is seeking significant damages: more than $45 million in medical, custodial, and life-care expenses and $65 million in noneconomic damages. Should his claim prove successful, the payout would mark one of the largest awards – if not the largest award – in Oregon State history. The hospital has declined to comment.
At press time, a trial date hadn’t been set.
A version of this article first appeared on Medscape.com.
A neurosurgeon who operated on the wrong side of his patient’s spine claims he can’t be sued because of a federal law that protects health care professionals during a public health emergency, according to a report by KSDK, an NBC-affiliated television station in St. Louis.
Natalie Avilez, who lives in Missouri with her husband and five children, had been suffering from intense back pain. At some point in the recent past (the story doesn’t identify precisely when), she was referred to Fangxiang Chen, MD, a neurosurgeon affiliated with Mercy Hospital and Mercy Hospital South, in St. Louis. Ms. Avilez reportedly claims that Dr. Chen told her that an “easy” surgery – a hemilaminectomy – could relieve her back pain.
Something went wrong during the procedure, however. Dr. Chen ended up operating on the left side of Avilez’s spine instead of the right side, where he had initially diagnosed disk-related pressure. Dr. Chen realized his mistake while his patient was under anesthesia but couldn’t remedy it.
As the patient awakened, Dr. Chen asked her to authorize an immediate right-side surgery, but, as Ms. Avilez told the TV station, her “charge nurse would not let him get authorization because I wasn’t fully awake.” In the recovery room afterward, Dr. Chen explained what had happened to his patient, who permitted him to redo the surgery the following day.
But the redo didn’t remedy Ms. Avilez’s pain; in fact, the second surgery made things worse. “I’m always in constant pain,” she said. “I kind of feel like I would have been better off not even doing it at all.”
In January of this year, Ms. Avilez filed a medical malpractice suit against Dr. Chen and Mercy. But the neurosurgeon made a surprising claim:
Initially passed in 2005, PREP was intended to shield doctors and other licensed health care professionals from liability during a public health emergency except in cases of willful misconduct. On March 17, 2020, then–Health and Human Services Secretary Alex Azar invoked the PREP Act “for activities related to medical countermeasures against COVID-19.”
But could this declaration – which has since been amended multiple times – shield a physician from a claim of wrong-site surgery?
Ms. Avilez’s attorney, Morgan Murphy, doesn’t think so. “Obviously, we are not claiming that COVID had anything to do with the fact that Dr. Chen operated on the incorrect side of Natalie’s spine. It is a fairly straightforward situation. A doctor should never perform the incorrect surgery, period.”
Other observers are less certain that the Chen defense won’t hold. It’s true the PREP Act doesn’t protect doctors against claims of willful or intentional misconduct, says Deidre Gilbert, who leads a national medical malpractice patient-advocacy group. But such claims are, she quickly adds, very difficult to prove, never more so than during a pandemic.
Several states, including Missouri, have passed or are considering additional measures to protect health care professionals against the expected wave of COVID-related claims. (One estimate places the number of those claims at almost 6,000 as of February 2021.) “We want to make sure that there is a heightened standard for holding somebody liable in ... COVID transmission cases,” said the sponsor of the proposed Show-Me State legislation.
As for Ms. Avilez, she feels lucky that she’s not even worse off than she is now. She worries, though, about other patients who are less fortunate and who are told that the pandemic protects their health care professionals from liability. “That’s just not fair,” she says.
Hidden beliefs about people of color raise liability risks
Clinicians’ “implicit bias” can exacerbate medical disparities and also malpractice claims, a story in the Dayton Daily News reports.
The story’s authors cite La Fleur Small, PhD, a medical sociologist at Wayne State University, in Detroit, who sees “implicit bias” as a set of “unconscious associations and judgments” that affect social behavior, causing people to act in ways that are often contrary to their perceived value system. In the medical profession, such thinking can have unintended consequences, especially for people of color.
Implicit bias can erode the physician-patient relationship, which in turn can make a malpractice suit more likely should an adverse event occur. Studies reported in recent years in the AMA Journal of Ethics, for instance, found that poor communication was a factor in almost three-quarters of closed claims. Other studies have revealed that, of patients seeking legal advice following a medical mishap, more than half cited a poor doctor-patient relationship as a contributing factor in their decision.
To remedy things, it would be helpful to boost the number of doctors of color, at least to the point that it more closely reflects the percentage in the general population, say experts. Currently, although Black and Hispanic persons constitute 13.4% and 18.5%, respectively, of the overall U.S. population, they make up only 5.0% and 5.8% of active physicians. (As of 2018, 56.2% of all physicians were White and 17.2% were Asian, according to data from the Association of American Medical Colleges.)
Father of impaired baby seeks mega damages
An Oregon man whose son sustained permanent neurologic injuries during childbirth has sued the hospital where the 2017 delivery took place, as reported in The Astorian.
In the suit on behalf of his son, Wesley Humphries claims that Columbia Memorial Hospital in Astoria, Oregon, failed to monitor the baby’s heart rate and other aspects of the labor and delivery. As a consequence, the baby needed to be transferred to Oregon Health and Science University Hospital in Portland, approximately 100 miles away, for emergency treatment. Doctors there diagnosed the child as having hypoxic ischemic encephalopathy, which his lawyers say resulted in cerebral palsy, among other neurologic conditions.
Because of his son’s permanent impairment, Mr. Humphries is seeking significant damages: more than $45 million in medical, custodial, and life-care expenses and $65 million in noneconomic damages. Should his claim prove successful, the payout would mark one of the largest awards – if not the largest award – in Oregon State history. The hospital has declined to comment.
At press time, a trial date hadn’t been set.
A version of this article first appeared on Medscape.com.
A neurosurgeon who operated on the wrong side of his patient’s spine claims he can’t be sued because of a federal law that protects health care professionals during a public health emergency, according to a report by KSDK, an NBC-affiliated television station in St. Louis.
Natalie Avilez, who lives in Missouri with her husband and five children, had been suffering from intense back pain. At some point in the recent past (the story doesn’t identify precisely when), she was referred to Fangxiang Chen, MD, a neurosurgeon affiliated with Mercy Hospital and Mercy Hospital South, in St. Louis. Ms. Avilez reportedly claims that Dr. Chen told her that an “easy” surgery – a hemilaminectomy – could relieve her back pain.
Something went wrong during the procedure, however. Dr. Chen ended up operating on the left side of Avilez’s spine instead of the right side, where he had initially diagnosed disk-related pressure. Dr. Chen realized his mistake while his patient was under anesthesia but couldn’t remedy it.
As the patient awakened, Dr. Chen asked her to authorize an immediate right-side surgery, but, as Ms. Avilez told the TV station, her “charge nurse would not let him get authorization because I wasn’t fully awake.” In the recovery room afterward, Dr. Chen explained what had happened to his patient, who permitted him to redo the surgery the following day.
But the redo didn’t remedy Ms. Avilez’s pain; in fact, the second surgery made things worse. “I’m always in constant pain,” she said. “I kind of feel like I would have been better off not even doing it at all.”
In January of this year, Ms. Avilez filed a medical malpractice suit against Dr. Chen and Mercy. But the neurosurgeon made a surprising claim:
Initially passed in 2005, PREP was intended to shield doctors and other licensed health care professionals from liability during a public health emergency except in cases of willful misconduct. On March 17, 2020, then–Health and Human Services Secretary Alex Azar invoked the PREP Act “for activities related to medical countermeasures against COVID-19.”
But could this declaration – which has since been amended multiple times – shield a physician from a claim of wrong-site surgery?
Ms. Avilez’s attorney, Morgan Murphy, doesn’t think so. “Obviously, we are not claiming that COVID had anything to do with the fact that Dr. Chen operated on the incorrect side of Natalie’s spine. It is a fairly straightforward situation. A doctor should never perform the incorrect surgery, period.”
Other observers are less certain that the Chen defense won’t hold. It’s true the PREP Act doesn’t protect doctors against claims of willful or intentional misconduct, says Deidre Gilbert, who leads a national medical malpractice patient-advocacy group. But such claims are, she quickly adds, very difficult to prove, never more so than during a pandemic.
Several states, including Missouri, have passed or are considering additional measures to protect health care professionals against the expected wave of COVID-related claims. (One estimate places the number of those claims at almost 6,000 as of February 2021.) “We want to make sure that there is a heightened standard for holding somebody liable in ... COVID transmission cases,” said the sponsor of the proposed Show-Me State legislation.
As for Ms. Avilez, she feels lucky that she’s not even worse off than she is now. She worries, though, about other patients who are less fortunate and who are told that the pandemic protects their health care professionals from liability. “That’s just not fair,” she says.
Hidden beliefs about people of color raise liability risks
Clinicians’ “implicit bias” can exacerbate medical disparities and also malpractice claims, a story in the Dayton Daily News reports.
The story’s authors cite La Fleur Small, PhD, a medical sociologist at Wayne State University, in Detroit, who sees “implicit bias” as a set of “unconscious associations and judgments” that affect social behavior, causing people to act in ways that are often contrary to their perceived value system. In the medical profession, such thinking can have unintended consequences, especially for people of color.
Implicit bias can erode the physician-patient relationship, which in turn can make a malpractice suit more likely should an adverse event occur. Studies reported in recent years in the AMA Journal of Ethics, for instance, found that poor communication was a factor in almost three-quarters of closed claims. Other studies have revealed that, of patients seeking legal advice following a medical mishap, more than half cited a poor doctor-patient relationship as a contributing factor in their decision.
To remedy things, it would be helpful to boost the number of doctors of color, at least to the point that it more closely reflects the percentage in the general population, say experts. Currently, although Black and Hispanic persons constitute 13.4% and 18.5%, respectively, of the overall U.S. population, they make up only 5.0% and 5.8% of active physicians. (As of 2018, 56.2% of all physicians were White and 17.2% were Asian, according to data from the Association of American Medical Colleges.)
Father of impaired baby seeks mega damages
An Oregon man whose son sustained permanent neurologic injuries during childbirth has sued the hospital where the 2017 delivery took place, as reported in The Astorian.
In the suit on behalf of his son, Wesley Humphries claims that Columbia Memorial Hospital in Astoria, Oregon, failed to monitor the baby’s heart rate and other aspects of the labor and delivery. As a consequence, the baby needed to be transferred to Oregon Health and Science University Hospital in Portland, approximately 100 miles away, for emergency treatment. Doctors there diagnosed the child as having hypoxic ischemic encephalopathy, which his lawyers say resulted in cerebral palsy, among other neurologic conditions.
Because of his son’s permanent impairment, Mr. Humphries is seeking significant damages: more than $45 million in medical, custodial, and life-care expenses and $65 million in noneconomic damages. Should his claim prove successful, the payout would mark one of the largest awards – if not the largest award – in Oregon State history. The hospital has declined to comment.
At press time, a trial date hadn’t been set.
A version of this article first appeared on Medscape.com.