Articles Posted in Medical Malpractice

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When you pursue a wrongful death lawsuit, you’re seeking to hold accountable those responsible for your loved one’s premature demise. The other side seeks to avoid or minimize liability to the greatest extent possible. That defense position often entails making the litigation process as burdensome on you as possible within the confines of the law. These harsh realities serve as reminders of the importance of a skillful Oregon wrongful death lawyer, both in shouldering that burden and applying the brakes when the other side has stepped outside the confines of what the law allows.

One area where this can be particularly true is the pretrial discovery process. Defense attorneys might demand a wide array of things, including many personal medical records. Is it frustrating? Yes. Is it intrusive? Yes. Is it legal? As one recent wrongful death case that originated here in Portland demonstrates, not necessarily.

The lawsuit originated after the passing of H.D., a boy born prematurely who died of cardiac arrest at the age of five months. The boy’s mother, acting in her capacity as the personal representative of the estate, sued for wrongful death, alleging medical negligence.

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In 2018, CNBC reported that “more than 250,000 people in the United States die every year because of medical mistakes, making it the third leading cause of death after heart disease and cancer,” according to research conducted by Johns Hopkins. The Journal of Patient Safety concluded that the number of deaths attributable to medical errors actually was more than 400,000. Inevitably, thousands of those annual deaths occur right here in Oregon. Families impacted by medical negligence only have a limited period of time to pursue legal action, which is why contacting a knowledgeable Oregon medical malpractice lawyer as soon as possible is crucial.

Late last month, the Oregon Court of Appeals issued a ruling that revived a widow’s medical malpractice case against the hospital and doctors who treated her husband.

This case is a reminder of several important things, but we’ll focus on two. The first is the prevalence of fatal mistakes by medical providers. As noted above, reputable sources have placed the number of deaths in the hundreds of thousands every year. These mistakes include everything from prescribing (or administering) the wrong drug (or the wrong dosage) to leaving surgical instruments inside patients after operations to making incorrect diagnoses as a result of reviewing the wrong test results.

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Last month I wrote about the problems plaguing Portland’s Unity Center for Behavioral Health.  According to The Oregonian, serious reports of neglect and abuse began to emerge almost as soon as the facility opened in 2017. In short order there was evidence of at least 16 incidents that ought to have been reported to police but were not. Now, only a few weeks later, the center is in the news again, with the paper reporting that its director has stepped down. “Legacy Health, which operates Unity, gave no explanation for her departure… although she will stay on as an advisory member of the Unity Board of Managers.”

As the paper outlines, “within the first month of opening, Unity staff reported instances of neglect and abuse within the facility. A federal and state investigation, started in spring 2018, eventually found that staff were poorly trained and underworked.” This, at what was routinely described as one of the state’s premier mental health facilities.

This incident raises serious questions about Oregon’s regulation and oversight of health care facilities. I have been covering the issue in this blog for several years and, more importantly, it has been the subject of some excellent investigative reporting by a number of Oregon media outlets. It is worth asking, however, why these issues never seem to go away. The mandatory reporting obligations of almost all staff members and even many of the people simply passing through a facility like Unity (medical or law enforcement professionals who might visit, for example) ought to offer strong protection for patients but, clearly, they do not (see links below for more information on mandatory reporting as well as the numbers to call to report abuse and neglect). This is where Oregon’s civil and criminal laws enter the picture. They are designed to prevent abuse in nursing homes, mental care centers and similar facilities.

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A recent CNN investigation highlights a problem that is both widespread and under-reported: the abuses that can arise when drug companies pay doctors to prescribe their medications. Though not widely known or appreciated this is a common practice in the medical and pharma industries. But, as CNN outlines, it can lead to life-threatening abuses.

As the story linked below documents one major pharmaceutical company paid “nearly 500 doctors to speak or consult on its drug, Nuedexta, between 2013 and 2016, according to government data.” According to CNN this raised two separate and equally serious issues.

First, the manufacturer was not particularly discriminating about who it paid to promote its drug. Among the doctors on the manufacturer’s payroll: one doctor who “had his prescription pad taken away after he repeatedly failed tests for his competency. Another was banned from treating mentally ill inmates and accused of endangering nursing home patients by prescribing excessive dosages of medications. At least three others had criminal convictions for illegal prescribing.”

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On Wednesday the US House of Representatives passed the misleadingly-named “Protecting Access to Care Act” on a largely party-line vote of 218-210 (all of the ‘yes’ votes came from Republicans; the noes included 191 Democrats and 19 Republicans). There is no indication yet whether the Senate will take up this little-noticed piece of legislation, but it is worth keeping an eye on, because the provisions of the bill could dramatically curtail patients’ rights. Earlier this month the Trump administration issued a statement of support for the bill – signaling that the President will sign the legislation if it ever reaches his desk.

Earlier this week the website HuffPost published a detailed analysis of the bill by a law professor from New York University. According to that article, the legislation would severely limit the “non-economic” damages that could be awarded in medical malpractice suits involving “injuries like permanent disability, mutilation, trauma, loss of a limb, blindness, sexual or reproductive harm, and other types of suffering and pain. HR 1215 would federally-mandate that if you suffer the most severe non-economic injuries, they are worth exactly $250,000 (no matter what the local jury finds).” In addition, the bill would impose an arbitrary time limit of three years on healthcare lawsuits, making it impossible for injured people to claim compensation for problems that emerged only slowly over a longer period of time.

The measure, in other words, would override state law to protect the economic interests of doctors, hospitals, the drug industry, medical device manufacturers and the insurers who cover all of them.

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An Oregon Supreme Court ruling issued last week has received remarkably little coverage outside of the specialized legal press, but it deserves much more attention. In the case of Smith v Providence Health & Services (361 Or 456) the court reversed rulings from both the trial and appellate courts, and found that a legal doctrine known as Loss of Chance “is cognizable under Oregon common law.” In doing so, it significantly increased the rights of ordinary Oregonians confronted with failures or negligence on the part of the medical system.

As the Bend Bulletin, one of the few newspapers to have taken note of the case, aptly noted, the ruling means that Oregonians “can bring medical malpractice cases not only when they are injured but also when negligent care denies them a treatment with a potentially better outcome.”

The case revolved around a man “who went to a Hood River emergency room in 2011 concerned that he was having a stroke. Doctors discharged him without ordering an MRI or prescribing clot-busting drugs. By the time an MRI confirmed a stroke a week later (he) had incurred significant brain damage.” Both the article and court’s opinion note that had these precautions been taken there is a one-in-three chance that the plaintiff would have recovered substantially, perhaps even completely, from the stroke.

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The sentencing this week of a former Kaiser Permanente nurse on charges of sexually abusing five women under his care should remind us all of the responsibilities hospitals, nursing homes, other care facilities and their staffs have toward their patients.

According to The Oregonian the 38-year-old man “pleaded guilty in Washington County Circuit Court to attempted second-degree kidnapping, second-degree invasion of personal privacy, third-degree sexual abuse and computer crime.” He was sentenced to two-and-a-half years in prison and will be required to register as a sex offender.

The newspaper notes, however, that in addition to the criminal phase of the trial, which is now over, two of the man’s victims “have since filed suit against Kaiser Permanente – where he worked for two years – alleging negligence by the medical company and sexual abuse and exploitation.” These charges are both significant and serious. Hospitals, nursing homes and other care facilities have an obligation to ensure that their staff are interacting with patients in a proper manner, and to report any suspected abuse immediately (see the Oregon Department of Justice and Oregon Department of Human Services links below for more information).

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The extraordinary news of a lawsuit filed this week in Los Angeles alleging that a major university looked the other way as a school doctor abused students, some of them Olympic-level athletes, is a stern but necessary reminder of the role our courts play in holding abusers to account.

According to detailed reporting by ESPN “officials at Michigan State University missed early warning signs about… the school doctor and former USA Gymnastics team physician accused in recent months of multiple sex crimes.”

According to ESPN, citing legal proceedings, the team doctor conducted what he called “inter-vaginal adjustments” on an 18-year-old athlete who had come to him for treatment of back pain. Over time the ‘treatments’ became more and more intrusive to a point where few reasonable people reading the descriptions of them could characterize them as anything other than sexual assault.

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A story published this week in The Oregonian focuses on the suicide of a teenage boy who was living in a Corvallis residential treatment facility and on accusations that the facility falsified care records in an attempt to evade responsibility for its actions. There are broader issues also raised by the case, however, and I would like to take a few moments to examine both the issues raised by the newspaper and the ones that also merit our attention.

According to The Oregonian the boy, age 15, died last August. A state investigation showed that he was supposed to be closely monitored while in the facility, with staff checking on him every 15 minutes. Though the care center’s records indicated he had slept through the night, a state investigation showed that he had been left alone for 40 minutes at one point that evening despite having “told staff earlier in the evening that he was suicidal and had been bleeding from self-inflicted arm wounds.” The newspaper adds that the investigation turned up other instances in which “patients told regulators they also had gone without scheduled check-ins by the center’s employees.”

The focus of the newspaper story is on the alleged falsification of records and this is obviously a serious issue. If proper, legally required, records are not kept by caregivers and facilities it is impossible for patients to get the treatment they need and extremely difficult for cases of medical malpractice or nursing home abuse and neglect to be proven either while they are unfolding or after the fact. To be clear: this is an extremely important issue and one where it is critical to everyone’s health and well-being that federal, state and local regulators do their jobs.

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A lawsuit filed last week by Oregon’s ACLU is shining a light on the state’s obligations to provide medical treatment for prisoners, according to a news release from the group and coverage in The Oregonian. Last week the group filed suit on behalf of a transgender woman who is currently an inmate at the Two Rivers Correctional Facility in Umatilla. The ACLU says the prisoner “is being denied essential medical care. The suit… argues that it is cruel and unusual punishment to deny medically-necessary care to prisoners.”

The Oregon Department of Corrections’ own “Health Services” web page acknowledges that “state and federal laws have established that inmates are entitled to health care during incarceration. Health care services available to inmates must be comparable to health care provided in the community in order to meet the state’s legal obligation. This means that all types and levels of health care must be provided in a clinically appropriate manner by properly credentialed professionals in settings equipped and designed for the delivery of health care.” By these parameters health care, legally speaking, has to be considered a civil right where prisoners are concerned. Denial of appropriate care, therefore, can be challenged using 42 US Code 1983 – a key legal text concerning civil rights. 42 USC 1983 allows anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” to sue the person or institution which violated those rights in civil court.

So if we take that acknowledgement by the state DOC as a starting point, the question must be asked: how can the agency defend the conduct alleged in the ACLU lawsuit? Specifically, the group charges that the state has denied its client’s repeated “requests for hormone treatment, despite an official diagnosis of gender dysphoria. The lawsuit also accuses state officials of placing (the plaintiff) in segregation or solitary confinement for weeks and sometimes months at a time,” the newspaper reports. When placed in a Disciplinary Segregation Unit following a suicide attempt earlier this year “staff mocked her and called her a ‘freak’ and other vulgar names,” the suit alleges. A mental health professional who evaluated the woman on behalf of the DOC referred to her repeated requests for essential hormone treatments as “quality of life issues” according to The Oregonian, and repeatedly referred to the prisoner using male pronouns (the 25 year old prisoner has publicly identified as female since the age of 16).

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