Washington DC Injury Attorney Blog

When consumers make purchases they expect them to function properly and safely. It is when the purchased defective item causes injuries and illnesses that there are basis for product liability lawsuits. Some of these items are: automobiles, prescription drugs, beauty products, frozen foods, automobile parts and tires, etc.

When Manufactures realize that a product is defective they issue out a recall of that item to consumers. However, recalls do not always keep the consumer safe.

Product liability claims are based on the theory of negligence. The manufacturer has a duty to exercise a reasonable standard of care for developing a particular product, and has failed to do so; thus resulting in harm to the consumer. When making a negligence claim, the injured consumer must prove that the defective product was the actual and proximate cause of the injury. One must show that had it not been for the defective product, the injury would not have occurred. The manufacturer should have foreseen the danger and risk when it sold the product.

Design defect, failure to warn/improper labeling and manufacturing defects are the most common scenarios that form the basis for a product liability claim.

Product liability claims can also be based on the following legal theories:
- Breach of Warranty - failure to fulfill terms of a promise or claim made regarding the quality and safety of a product. A manufacturer must guarantee certain warranties on products sold and needs to be held accountable when they are breached;

- Strict Liability - responsibility of the manufacturer to all consumers who might be injured by a product and does not require the injured consumer to prove negligence. The consumer only needs to prove that the product was defective and therefore cause the injury, therefore; making the product unreasonable defective and dangerous. The designer, manufacturer, distributor and seller of the defective product can and should be held liable for the injury and illnesses cause to the consumer.

- Misrepresentation - when a manufacturer gives the consumer false or misleading information on the safety and reliance of a product. When the consumer relies on this information and is harmed, they can recover money damages.

A consumer can also contact the Consumer Product Safety Commission for further details and advice.

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.

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.

Asbestos: a naturally occurring mineral found in certain rock formations, mined from open pit mines. Most of the asbestos used in the United States comes from Canada. Three kinds of asbestos are most commonly found in the US: Chrysotile, "white asbestos"; Amosite, "brown asbestos" and Crodifolite, "blue asbestos".

Asbestos was used in more than 3000 different products, ranging from pipe insulation, floor and ceiling tiles, brake pads, plasters, adhesives, paint, packing materials for valves, roofing materials, etc. Asbestos fibers were wonderful to use because they were durable, strong, flexible, and most importantly resistant to wear.

Concerns with Asbestos:
In the early 1960's evidence began to emerge showing that certain diseases were rampant among asbestos workers. These workers were ones that worked in mills, manufacturing facilities, painters and shipyards. These people were heavily exposed to airborne fibers. They were at high risk of developing an asbestos-related disease.

The diseases most common are asbestosis, lung cancer, mesothelioma, and digestive system cancers. Fibers may be inhaled or ingested. The fibers are small and can remain in the air for various hours. These fibers have no color or smell and therefore; are difficult to detect. Asbestosis is a chronic lung condition where the lungs become scarred, breathing becomes difficult and the disease may worsen even if the person stops working with asbestos. Mesothelioma is a rare form of cancer to the lining of the lung and/or abdominal cavities and is always fatal. None of the asbestos related diseases have early warning symptoms and are usually diagnosed years after the disease begins to develop.

Regulating Asbestos:
The Environmental Protection Agency (EPA) regulates Asbestos. They brought to law a Clear Air Act to produce regulations to regulate air pollutants hazardous to health. These regulations are called the Emission Standards for Hazardous Air Pollutants. Asbestos is one of the air pollutants that is being regulated by the act. Asbestos in schools is also regulated by the EPA, but specifically by the Asbestos Hazard Emergency Response Act (AHERA). Under AHERA schools are required to inspect buildings for asbestos and develop a plan to manage asbestos. The department inspects Maryland's public and private schools.

Asbestos is regulated by states and by the federal government. The State of Maryland regulates how persons work with asbestos and also regulates those who train persons to work with asbestos. The EPA regulations cover four basic asbestos activities:
1) Removal, repair, or encapsulation of asbestos containing materials;
2) Approval of asbestos training;
3) Regulation of persons accredited to perform asbestos related activities;
4) Asbestos in schools.

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.

The personal injury bar won a decisive victory recently when the Supreme Court of Illinois struck down a state law limiting damages for pain and suffering in medical malpractice cases, finding that the law interferes with the power of the judicial branch to reduce jury verdicts.

The decision stems from a case in which plaintiffs alleged malpractice against a hospital and a doctor involved in the delivery of a baby that suffered brain-damage. The proposed law advocated by the health care industry, would have limited non-monetary damages to a $1 million recovery against the hospital and its personnel and to a $500,000 recovery against the individual doctor.

Maryland currently has a cap of $575,000 for non-monetary damages in medical malpractice lawsuits, which is being challenged by [name some trial lawyer association]. 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 Illinois case featured several prominent Washington, D.C. players, such as professor and attorney Michael Gottesman who teaches at the Georgetown University Law Center, and Attorney Robert Peck, who heads the Center for Constitutional Litigation located in the nation's capital. They both argued the case on behalf of the injured party. Former U.S. Solicitor General Theodore Olson, a Washington Attorney with law firm Gibson Dunn, argued for the defense.

Maryland's Court of Appeals (the state's highest court) is scheduled next month to hear a case which challenges Maryland's cap on awards in personal injury lawsuits. Non-economic damages are currently capped at $725,000 for personal injury cases brought in Maryland. The case on appeal involves a child who drowned in a pool. The jury in that case awarded the child's parents $2 million. However, the award was later reduced to approximately $1 million in order to comply with Maryland's cap.

The cap was put in place in 1986, and plaintiffs' lawyers have been fighting it ever since.

In Fairfax County, Virginia a jury awarded nearly $3 Million to a family of a man, Hector Alvarez, who died after his esophagus tore while he was swallowing a piece of steak, finding an Alexandria radiologist liable for misdiagnosing the man's condition as a hiatal hernia. The state of Virginia, however, has a cap on medical malpractice judgements set at 1.85 million, therefore the award given by the jury in this case will be cut by more than half.

In the specific case of Mr. Alvarez, the jury was not advised of the state cap on medical malpractice and therefore, had no idea that their award would be cut by almost half. Mr. Alvarez was an Information Technology Specialist for the Defense Information Systems Agency and a retired Air Force. He was survived by his wife and two adult children.