Washington DC Injury Attorney Blog

The U.S. Food and Drug Administration (FDA) is proposing new guidelines for the cleaning of reusable medical equipment, which if not done properly, can cause infections at hospitals and other medical facilities and doctors offices.

The new guidelines would require manufacturers to provide detailed instructions on how to clean any medical device that will be reused on multiple patients, properly. The guidelines would also provide cleaning instructions of those devices for health care professionals.

These guidelines are being implemented because when these instruments are not cleaned and/or sterilized properly, they could carry bodily fluids and other materials from one patient to the next and therefore; cause infections. These infections can be life threatening and should be avoided, and with these new guidelines, they could potentially be avoided.

A report released by the FDA, from January 2007 to May 2010, they received 80 reports of inadequate cleaning of endoscopes and 28 reports of hospital acquired infections that were most likely spread by endoscopes. Endoscopes are small cameras that are inserted into the body. They are most commonly used in colonoscopy procedures, but can also be used on ears, nose and throat procedures.

The FDA has a public workshop scheduled for June 8 and 9th of this year, to discuss the draft guidelines with manufacturers, health care providers and other government agencies, after which, the FDA would draft a final guidance. Guidance are recommended procedures that are recognized as federal standards.

The National Health Care Anti-Fraud Association (NHCAA) defines health care fraud as an intentional deception or misrepresentation that the individual or entity makes knowing that the misrepresentation could result in some unauthorized benefit to the individual, or the entity or to some other party.

In the United States, it is estimated that almost $226 billion a year are spent on health care fraud. That is 10% of the nation's health care expenditure. Therefore; consumers have higher premiums and out-of-pocket expenses, also reduced benefits and coverage. As for employers, they have increases in the cost of providing insurance benefits to their employees, as well as increasing the overall cost of doing business.

The Coalition Against Insurance Fraud claims that two out of five Americans want little or no punishment for insurance cheats. Consumers blame the insurance industry for its fraud problems because they believe insurers are unfair.

The Journal of the American Medical Association, claims that almost one-third of doctors exaggerate the severity of a patient's illness to help the patient avoid early discharges from a hospital.

Categories of Fraud:
- Hard Fraud - this occurs when someone purposely plans or invents a loss. For example: staged automobile accidents. The "victim" obtains an attorney, who in turn refers the victim to a physician. The physician then submits charges to the insurance carrier and refers the victim for additional physical therapy. The physical therapy physician then also submits charges to the insurance carrier.
- Soft Fraud - this occurs when policy holders exaggerate a legitimate claim. For example: receiving treatment for a slip and fall accident on 2/1 and submitting that claim to insurance carrier and then changing that same service charge to 2/4 and resubmitting the claim.

The most common fraudulent acts are:
- The billing of late charges by a hospital
- False durable medical equipment claims (DME)
- Behavioral health fraud
- Medical identity theft
- Billing for services, procedures and/or supplies that were never provided or performed
- The condition treated or the diagnosis made
- The charges for services, procedures and/or supplies provided or performed
- The deliberate performance of medically unnecessary services for the purpose of financial gain

The cost of insurance fraud is factored in to the premiums we all pay. In order to lower these premiums, the laws against health care fraud must be tougher. Penalties must be instituted by both federal and state governments. As of the year 2010, only 40 state fraud bureaus exist. In order for health care fraud to be less common and less costly for each citizen in general, each state should have a fraud bureau. It is easier to prevent fraud than to recover payments once they have been made.

We, as consumers, can also do our part to lower health care fraud. We must never sign a blank insurance form. We must comprehend all claim forms we complete. We must request detail bills, or HICFA/UB 92 billing statements and we must always keep our insurance information confidential.

If you need to report health care fraud, please call your insurance company immediately. Also, contact your state insurance fraud bureau and file a complaint with the State Medical board.

In 2008, the cost of health care was $2.3 trillion, according to the U.S. Department of Health and Human Services. That averages out to about $7,681.00 per person. The U.S. spent nearly $55.6 billion on medical malpractice lawsuits and defensive medicine, which represents about 2.4% of the entire budget. Defensive medicine however, made up about $45.6 billion of that, meaning that only $10 billion was spent on medical malpractice lawsuits in 2008.

Defensive medicine is defined as medical tests and procedures performed to avoid medical malpractice liability and not to improve the patient's health.

Researchers for the journal Health Affairs, published by the Harvard School of Public Health in September 2010, found that attempting to reduce the number of medical malpractice lawsuits would result in only a negligible effect on the cost of health care, and reducing the cost of defensive medicine would do little more.

If we could improve the quality of health care in the United States, we would be saving a lot of money a year. By improving the quality of health care, we would reduce the need for medical malpractice lawsuits and costs, such as longer hospitalizations due to hospital acquired infections and pneumonia, bedsores, and wrong site surgeries, all of which are avoidable medical problems.

Physhield Insurance Exchange, a risk retention group (RRG), has been approved in Maryland, to write medical professional liability insurance policies. Physhield now has the authority to operate as a liability insurer in Maryland, as well as other states, such as Florida, Texas and Nevada. According to Robert Trinka, Chief Executive of Phyhealth (an affiliate of Physhield) says that Physhield can also write policies in Washington, D.C.

This RRG will insure large, single speciality or multispeciality doctors groups that have more than $500,000 a year in premiums. The insurance will be sold through the sales force and Internet site of Maryland-based Palumbo Insurance Associates, a full service commercial insurance agency in Maryland.

Physhield's business model is to bring together groups of local physicians who will form a delivery network, and be the primary owners of the groups HMO license. They will develop and market HMO products for their community of patients. This is the doctors that Physhield will offer medical professional liability insurance to. It is these physicians that have the financial responsibility over the care that is delivered, and therefore, have a great deal of control over their own liability insurance situation.

Putting physicians in control of the care and the liability, results in more effective medicine practices. With more control come greater responsibilities, and these Physicians are held liable for the treatment and services they render.

The medical malpractice system exists so that patients injured by the negligence of medical personnel can sue for their injuries. To date, it is the only opportunity for victims of medical malpractice to address their injuries in a legal and meaningful matter.

Medical malpractice lawsuits do not drive up healthcare costs. In fact, the present system saves thousands of additional patients from avoidable deaths and it provides fair compensation to those affected.

About 44,000 to 98,000 people die as a result of medical malpractice each year, according to the Institute of Medicine. These deaths can be avoided. Medical errors by health care personnel need to be prevented in order to lower this alarming number of deaths.

Tort reform may actually harm patients by focusing on costs over patient safety. In addition, the award caps that want to be implemented can also put a maximum price on a person's potential for injury compensation. This would pull some attorneys toward certain cases with higher damage caps and away from other malpractice lawsuits with less monetary value, ultimately harming many of those who truly need legal representation and financial help with continuing medical costs. This in turn does not provide a solution to the health care crisis in the United States. These limits to medical malpractice litigation instead, try to curb legal rights and costly verdicts, but do not address the prevention of medical errors.

Patients have a duty to keep better track of their own medical histories and review their medical records. Doctors also need to be questioned about anything unfamiliar or that seems unnecessary.

Victims of medical negligence deserve their day in court. They need financial compensation for their injuries and future healthcare costs and needs. If you or someone you know has been a victim of medical negligence, contact a medical malpractice attorney to discuss your legal rights and options.

Research has shown that medical errors may result most frequently from system errors. One out of 25 patients in hospitals are injured due to medical errors, and an estimated 48,000 to 98,000 patients die from these errors a year. Even if you consider the lower estimate of 48,000 errors a year, it is still higher than the annual mortality from motor vehicle accidents (43,458), breast cancer (42,297), or even AIDS (16,516), thus making medical errors the eighth leading cause of death in the United States. These errors, besides causing death, have also cost the economy from $17 to $29 billion each year and cost more that $5 million a year in large teaching hospitals, according to the Agency for Healthcare Research and Quality (AHRQ).

For Patients at Risk, Medical errors may result in the following:

- A patient being given the wrong medicine
- A clinician misreading the results of a test
- An elderly person that shows up to an emergency room with ambiguous systems, such as: shortness of breath, abdominal pain and dizziness, whose heat attack is not diagnosed by the medical staff

How Errors Occur:
- Medication Errors:
These are preventable mistakes in the prescribing and delivering of medications to a patient, these errors include: prescribing two or more drugs whose interaction is known to produce side effects or prescribing a drug to which the patient is allergic to.
- Surgical Errors
- Diagnostic Inaccuracies:
This leads to ineffective treatment and/or unnecessary testing, which is costly and can be invasive to the patient.
- System Failures:
This is the way health care is delivered and the way that resources are provided to the delivery system.

Medical Mistakes are also made by distracted nurses. It is believed that if medical facilities had more nursing staff that could focus their attention on fewer tasks at a time that medical mistakes would decrease, patient safety increase and it would reduce the risk of medical malpractice. When nurses are interrupted, it increases the chance of a procedural failure by 12.1%, and the chances of a clinical error by 12.7%, as indicated by the Archives of Internal Medicine study published in Australia in 2008.

The Centers for Disease Control and Prevention (CDC), reports that there are over 2 million hospital infections acquired each year, resulting in almost 90,000 deaths annually. This number is much higher when dealing with nursing home infections.

It is because of this huge number of yearly deaths that Medical Malpractice lawsuits have increased in the United States. Experts believe that these potentially life threatening infections can be prevented if steps are taken by hospitals and their staff. The steps that need to be taken should include: improving the methods of handling catheters during insertion, leaving them in for shorter periods of time and improving hygiene. Also hospital staff should was their hands more frequently and make sure to keep areas more sterile and catheters clean.

The hospital acquired infections include Postoperative sepsis, catheter-associated urinary tract infections and other preventable infections. Hospital stays are prolonged because of these avoidable infections and patients are also more likely to die from these infections, according to the U.S. Department of Health and Human Services (DHHS) 2009 National Healthcare Quality Report released earlier this year.

The biggest increase of hospital acquired infections occurred in sepsis infections. Sepsis is when a full body inflammation occurs as a reaction to an infection. Symptoms of sepsis include high heart rate, high respiratory rate, high and/or low body temperature and elevated white blood cell count. All of these symptoms can cause organ damage and in some cases organ failure, which lead to death in about 20 to 35% of cases.

Hospitals in the Washington Metropolitan Area, such as Washington Hospital Center (WHC), George Washington University Hospital (GWUH), Sibley Memorial Hospital (SMH) and Georgetown University Hospital (GUH), are making much needed changes to try and reduce these infections and deaths in order to avoid Medical Malpractice Lawsuits. These medical facilities are devoting more attention to patient safety in order to ensure that health care does not result in patient harm.

In Gaithersburg, Maryland today there will be a two day public hearing to discuss allegations that the FDA ignored some Scientists warnings on the risks of radiation exposure from CT scans that have lead to unnecessary and unexpected health problems and dangers to some patients.

The public hearing will focus on reducing the risks of unnecessary radiation exposure. The concerns about radiation exposure risks came about late last year in Los Angeles, California, when over 200 patients were subjected to radiation overexposure at Cedars-Sinai Medical Center. It was uncovered by the FDA that various cases at other area hospitals were discovered. These discoveries by the FDA lead to a new radiation exposure reduction initiative that was announced in February of this year.

This new initiative seeks to reduce the risk of radiation exposure from medical procedures by promoting the safer use of all medical devices that use radiation, and by providing support to patients in order to better inform them on the risks and side effects to radiation exposure. With this knowledge, patients will be able to make better decisions in regards to their medical procedures and be aware of their total radiation exposure.

The FDA issued a statement in December 2009 that better describes the side effects of radiation and the proper use of medical devices to health care professionals and radiologists. This guidance advised health care providers to review procedures and CT scan settings, and to thoroughly inspect the amount of dosage prescribed for each CT scan patient.

Since the creation of the National Practitioner Date Bank in 1990, which tracks medical malpractice payments nationwide, the number of medical malpractice payments made on behalf of physician was the lowest in 2009.

Even as doctors and their supporters urge Congress to revamp medical malpractice as part of a health care system overhaul, payments in malpractice cases continue to go down.

Maryland currently has a cap of $575,000 for non-monetary damages in medical malpractice lawsuits. Similarly, Virginia has a cap of $1.5 Million for total damages. Washington, D.C., however, has no cap on awards for pain and suffering for victims of medical malpractice.

The report, The Public Citizen, states that just one out of 57 deaths in the United States are compensated, meaning that between 83 percent and 98 percent of deaths from medical negligence did not result in a damage award, based on estimates of medical errors and deaths from malpractice.

The argument is that damage awards are a major reason for the soaring malpractice insurance premiums doctors have to pay. The threat of being sued and facing a big damage award forces doctors to practice defensively, which in turn drives up the cost of healthcare.

Patients and their survivors are finding it harder and harder to find attorneys that are willing to take on malpractice cases because the financial awards are too small, specifically for people who are retired. It is believed that this is because certain damage awards weigh heavily on lifetime earnings.

President Obama did say, however, that he is open to incorporating lawsuit reform and other GOP ideas into the health care legislation, according to the Associated Press.
Therefore, once the new health care reform goes into effect we will see how malpractice awards will be affected.