What Did The CARE Act Say About Hospital Coronavirus Liability?

Coronavirus mostly spared our hospitals from being overwhelmed, but that was because our government took precautions to prevent overcrowding. Liability concerns have been overwhelming because former patients will blame hospital workers for infecting them with coronavirus during treatments for other injuries or illnesses — all without proof. Now that elective procedures are allowed again (or will be soon), we can expect more frivolous lawsuits.

But there are legitimate lawsuits as well, as are determined by the details of those stories. We advise everyone with a story to tell their side — but find an experienced malpractice attorney who’s willing to hear it first. You’ll need one on your team to have a chance at financial compensation. 

The is especially the case considering what the CARE Act has to say about hospital liability in the wake of coronavirus. Lobbyists from the American Hospital Association are fighting on behalf of doctors and nurses while others are fighting to keep patients’ rights to sue intact for the duration of the ongoing crisis.

Senate Majority Leader Mitch McConnell, who has a large foothold over Senate Republicans and a great deal of influence throughout the chamber, said that legal protections for employers were needed before any deal could be struck. 

Senator John Cornyn (Republican-Texas) said, “We simply cannot allow a flood of frivolous lawsuits to harm our incredible health care workers or stunt our economic recovery.”

And in fact liability concerns were the primary reason that elective procedures were so delayed in returning to the table. Hospitals wanted greater protections because of coronavirus, knowing they would be sued on a grander scale than every before. But how do our elected officials balance the need for legal protections for one group with the need for legal options for another?

For now, hospitals that have followed state and federal guidelines are mostly shielded from liability due to coronavirus — as long as they can prove those guidelines were followed.

What Is Judicial Admission And What Does It Mean For Medical Malpractice Defense Cases?

Judicial admission is a courtroom process that helps one party from having to prove a fact. A piece of evidence is admitted by the judge, in writing, and is treated as if it is already a fact. Judicial admission has sometimes been referred to as admission in judicio, true admission, and solemn admission. In general, judicial admission is a concession by one courtroom party that a claim or defense is not false.

According to Ohio’s Supreme Court, certain of these admissions cannot be used during medical malpractice cases. What exactly does this mean for plaintiffs and defendants?

Think of it this way: your healthcare providers made a big mistake during surgery, either yours or someone else’s. Maybe your condition or injury was made worse by a mistake. Maybe a friend or loved one was inadvertently killed because of the mistake. The healthcare providers who allegedly made the mistake decide to personally apologize. Ohio’s decision means that apology is not proof that the mistake occurred, and that it cannot be used against them in court.

This was decided in the case of Stewart v. Vivian in 2017.

When Michelle Stewart tried to kill herself, healthcare providers placed her in the psychiatric unit of an Ohio hospital. She was in the care of Rodney Vivian, who had decided that Stewart should be checked on at least once every fifteen minutes. Only a day later, Stewart’s husband, Dennis, arrived for a visit to find her hanging unconscious. Stewart succumbed to the second suicide attempt days later.

Subsequently, Vivian made expressions of condolence to Dennis, and Dennis tried to use that as an admission of guilt in court after he sued the hospital. It didn’t work. The Ohio court ruled against him, but an appellate court heard his case and ruled in his favor. And it turned out that there were conflicting cases already in the pipeline. Because of this, the case was turned over to the Supreme Court, where it was finally dismissed yet again.

Chief Justice Maureen O’Connor described the potential consequences that the ruling may have on medical malpractice cases and many others. She did not agree that “the statute must be rigidly construed to cover only those statements including the words ‘I apologize’ or ‘I sympathize.’”

She wrote, “A health-care provider could render any statement inadmissible simply by affirming a subjective intent to apologize or to console.”

In other words, incriminating statements made by hospitals or healthcare staff could, in the future, be deemed inadmissible if the hospital’s defense attorneys can convince a judge or jury that they implied condolence or apology — which would be a dangerous precedent indeed.

Even The Incarcerated Have Rights: Inmate Wins $1 Million For Medical Malpractice

One Virginia inmate is a little happier today, having won a massive medical malpractice lawsuit after accusing the prison’s medical personnel of providing him with improper care after he broke his finger. The records of a million-dollar payout were found via the U.S. District Court system. John Kinlaw, a 32-year-old who was serving time in a Virginia prison, won the cash settlement after finding legal help.

When asked about the experience, he said, “There should be no difference in the standard of treatment between an inmate and a regular person. The people that mistreated me were going to be held responsible.”

And therein lies the problem for many victims of medical malpractice — not only do they have to prove that they were somehow hurt by the care they received, but also that the care received was somehow different from the standard of care expected anywhere else. 

According to Kinlaw, he still feels the consequences of the improperly delivered care.

The lawsuit was filed in 2017 against Armor Correctional Health Services Inc. as soon as Kinlaw was released from the Lunenburg Correctional Center. He accused prison staff of knowing that he had fractured his finger because of X-rays that had been taken. Normally the kind of break he suffered would require surgery. Instead, medical personnel at the correction center gave him a dose of Motrin and an ice pack to numb the area. 

He complained about the injury for weeks afterward, but they ignored him completely. In addition to Armor Correctional Health Services, Kinlaw named a Nurse Banks, Nurse Price, and Nurse Nwaokocha because they routinely denied new treatment.

It was over three months before the medical staff agreed to allow him to see a specialist. His theory that the fractured bone was healing improperly was confirmed.

Nexus Services Inc. is an organization that helps provide the basis for medical malpractice incurred during time spent in a correctional facility

Nexus CEO said, “What we do is we take cases involving complaints about government agencies, police, prisons, and jails, and evaluate them and refer them to a law firm to prosecute them, so we’ve been working with John…It’s very clear that they just didn’t want to spend money and perhaps that’s the ultimate irony because now they are going to have to pay over a million dollars to Mr. Kinlaw.”

Kinlaw’s settlement included $700,000 in damages and more than $300,000 in punitive damages (those that are meant to punish a person or organization for gross negligence).

How Do Breast Medical Malpractice Situations Arise?

How many of you have had acquaintances, friends, or family members diagnosed with breast cancer in the last five years? The reality is that you probably know someone, or at least have known someone in the past. The disease affects hundreds of thousands of women, 40,000 of whom will continue to die each year if we don’t find a way to eradicate breast cancer soon. Coping with cancer is hard enough — but what happens when you have to cope with the possibility of medical malpractice?

Malpractice cases are uncommon in general, but they arise in certain situations more than others. Those with breast cancer will want to pay especially close attention to the warning signs that their healthcare providers may have made a mistake.

Doctors sometimes fail to paint a complete picture of a person’s family history, sometimes due to laziness, sometimes due to a patient’s unwillingness to share, or sometimes simply due to incompetence. No matter how it happens, it’s part of the job to get it right, and get it right the first time. An incorrect family history can lead to incorrectly ordered tests to locate specific genes that can impact a patient’s fighting chance against breast cancer.

The genetic aspects of fighting cancer are becoming easier to use to our advantage, because sequencing the entire human genome is less expensive than ever before.

Communication is key: communication between you and your doctors, and then communication between your doctors. A break in communication can result in missed or inaccurate tests, or delayed treatment. These errors are the basis for many medical malpractice lawsuits involving breast cancer, and shouldn’t be taken lightly.

Even though women should check themselves for lumps at least once a month, some doctors won’t take a patient seriously if she finds something he missed during the doctor’s visit. If a doctor fails to follow through with routine healthcare, you know something is wrong. Don’t let them say it’s your imagination. Get a second opinion when necessary. Or a third.

Misreading of lab tests by technicians or other medical personnel can lead to misdiagnosis, which can in turn lead to improperly prescribed medications. Either issue can result in delay of proper treatment, which can turn life-threatening. In addition, having the wrong medication prescribed — or even wrongly dosed — can result in other complications or terrible side effects.

Common Signs Of Medical Malpractice

The truth is sometimes hard to swallow, but here it is: doctors are wrong more often than they care to admit. Their misdiagnoses and mistakes on the operating table can be deadly. Even though these mistakes are common, medical malpractice paid claims are not. For every one million residents in New York, there are only about 85 claims paid out each year. Part of the reason for this low number is because people do not always realize they were the subject of malpractice!

Here are a few of the most common warning signs of medical malpractice:

  1. Waking up in surgery. Anesthesiologists have one of the most difficult jobs in the business. Calculating how much anesthesia to give a person going into surgery is difficult and based on a number of factors. These include the part of the body operated on, weight of the recipient, allergies, supplements taken, prescription drugs taken, alcoholism, smoking, etc.

    Because these factors are sometimes impossible to accurately determine based on conversations with a patient, mistakes are common. If you wake up during surgery or feel any pain during an operation, you may be the subject of medical malpractice.

  2. Unusual pain. You might be surprised how often surgeons leave instruments inside a patient. If you encounter unusual pain after an operation and it just will not go away, consider visiting a different doctor to ensure the last one didn’t make a big mistake.

  3. Repeat Visits. If you repeatedly visit the doctor, you might be the subject of medical malpractice. This means that your doctor either failed to properly diagnose you in a timely fashion, or misdiagnosed you. This can allow a disease to fester longer and become more dangerous or even life-threatening. Many patients insist on a second opinion if they believe their symptoms are indicative of cancer or an equally life-threatening condition.

  4. Incorrect Medication. When misdiagnosed, you may receive the wrong medication for your ailment. Sometimes this can result in the real issue becoming even worse. Even when that is not the case, you are still susceptible to side effects from the incorrect medication. Another situation that might arise occurs when a doctor prescribes you the incorrect dosage of a drug for the correct disease.

  5. Consent. Doctors are not allowed to perform risky procedures or treatments without your express permission or the permission of your power of attorney. The only exception occurs when the patient is unconscious or a procedure must be performed immediately to save a patient’s life. If you were not properly informed of all the risks of a procedure, or a doctor performed a procedure without your permission, then you might have a case of medical malpractice.

  6. Admission. Although it’s rare for doctors to admit their mistakes (for liability reasons), it has been known to happen on occasion. When they do, it’s important you know that you have the right to compensation for medical malpractice, and you should enlist the services of a competent lawyer.

Common Surgical Mistakes

When we undergo surgery, we expect our health care professionals to do everything correctly. This is their job after all. However, mistakes, unfortunately, do happen. If any of these mistakes happened to you or a loved, if they are due to negligence, then you might be able to file for a medical malpractice lawsuit

Foreign Objects Left In Patient’s Body

The most common surgical instrument left in a patient’s body are surgical sponges.  But often other equipment such as scalpels, pads, gauze and clamps are left in patient’s bodies. Some might go unnoticed at first but can eventually lead to pain, infections and even death. To prevent this from happening there is usually a manual count for all equipment used in surgery but human error can happen when counting. 

Anesthesia Errors 

There are a myriad of errors that can occur with anesthesia. If too much is administered the patient can get too little oxygen to the brain causing damage and sometimes death. If there is too little given, the patient can wake up in the middle of surgery causing extreme pain. 

Also Marijuana users beware. THC conflicts with anesthesia. It is important if you are getting surgery that the anesthesiologist knows that you partake in the substance so he can properly administer the correct amount of anesthesia. They will not he held liable if you wake up in the middle of surgery if you did not disclose that you were using the drug. 

Prolonged Or Additional Injury

Surgery has its risks. One mistake by the doctor can cause additional injury, permanent disability or nerve damage. They might not even be able to adequately repair the initial injury. Other types of negligence by a surgeon could be wrong side (i.e. kidney stone removal from the left kidney but performing the operation on the right kidney) and wrong patient wrong surgery (i.e. paperwork mishap).