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This blog contains a discussion of a variety of topics related to medical malpractice. It is intended to be an open dialogue on issues of interest to legal & medical professionals, and anyone interested in or affected by medical malpractice or the health care industry. If you are looking for information related to misdiagnosis or delayed diagnosis of cervical cancer, please visit our website at www.MeyersMedMal.com, or the category on cervical cancer here on our blog.

PA Act 17 May Hurt Businesses

by Jerry Meyers on May 25, 2012

When Gov. Tom Corbett, Republican, signed Act 17 last year, he thought it would help businesses by making it harder for plaintiffs to sue multiple entities for a single injury. It turns out that the real consequence of the law may be to drive insurance rates up for all businesses.

The legal concept of “joint and several liability” means that even if a company is only partially responsible for an injury, it is financially responsible for all the damages. Act 17 ended “joint and several liability” except for defendants responsible for 60 percent or more of the damages and in the case of intentional misrepresentation, any intentional tort, or for certain violations of the Hazardous Sites Clean Up Act and the Liquor Code.

That seems like a good thing for businesses, but it turns out it’s not. The new law perversely complicates a plaintiff’s decision regarding whom to sue.

In some cases, filing suit against all negligent defendants may result in the fact-finder’s allocation of less than 60 percent liability to the only defendant capable of fully compensating the injured victim. In a malpractice case, for example, a plaintiff may be forced to file suit only against a hospital – leaving out healthcare providers who may have negligently contributed to the plaintiff’s injuries but cannot adequately compensate the plaintiff.

What that means is that the plaintiff will seek damages from companies having the most responsibility and the most assets. Companies have lost the benefit, in many cases, of fellow defendants with which to share the burden. Many will have to consider carrying higher amounts of insurance coverage and insurance carriers may respond by raising rates or required minimum coverage levels.

So instead of helping businesses, Act 17 may impose new costs on them.

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In the December 8th issue of the New England Journal of Medicine in the Perspective section, there appears an article, “Making Sense of the New Cervical Cancer Screening Guidelines,” by Dr. S. Feldman.  Dr. Feldman concedes that Pap smear sensitivity is poor, “roughly 50 to 60% [false negative].  She does not in her article explain the relatively poor sensitivity of the test but we can learn easily from other literature that a major contribution to the poor sensitivity of the test relates to improperly identified or interpreted smears.

 

While it is true that multiplying the frequency of smears increases the likelihood in spite of negligent readings that a cervical abnormality will be discovered while the disease is pre-invasive.  There is no study randomized and prospective which proves that.  Someone has simply picked out of a hat a frequency that they think is greater than needed and a frequency that is somehow lesser than needed and it comes to kind of a consensus that after age 21 every three years is frequent enough.

 

Cervical cancer is a very aggressive disease particularly in women who acquire the disease in their 30’s and 40’s.  No intelligent woman knowing she possessed a cervical abnormality would decide to wait three years to do something about it.  Where therefore does the pressure come from to reduce the frequency of looking?  Most women considered healthy to have their gynecologist see them annually and Pap smears are done at this annual exam.  Pap smears are relatively inexpensive.  Of course, even something that is inexpensive becomes expensive when you multiply it by 100,000,000.

 

On the other hand, if a lab is getting $25.00 to $30.00 for every Pap smear it screens and requires the cytotechnologists (not doctors)  who read the slides to read as many as 100 a day, one can see readily where the money is going.

 

I recently questioned during a deposition a cytotechnologist who had screened a slide with obvious severe abnormalities on it which she had in fact marked with screening dots.  She doesn’t know why she put the slide back in the box but she did.  She was having difficult times in her personal life which she had shared with her supervisors and others at the organization that was requiring her to perform as many as 96 screenings a day in spite of her obvious distraction.

 

While 4,000 to 5,000 women are needlessly dying of cervical cancer in the United States every year, cost efficiency is truly in the mind of the beholder.

 

In her article Dr. Feldman goes on to assert that HPV testing done with Pap smears, though recommended by the American Cancer Society every three years, is not recommended by anyone else including the United States Preventative Services Task Force.

 

It is well-know that women who are HPV positive are at much higher risk of developing cervical cancer in women who do not have this characteristic.  It is also well recognized that any sexual encounter with a new person, particularly if it is unprotected sex could result in the transmission of HPV.  Therefore, the fact that a person in a committed relationship is negative for ten years doesn’t mean that they are going to be negative for the next ten.

 

I keep on writing about this even though few hear what I have to say.  It is simply that I am tired of watching my clients die of cervical cancer that was preventable if a person had been allowed to spend more than eight minutes reviewing their slide or were willing to endure the further expense of subjecting the slide to HPV testing.  I wonder which committee of government or the prestigious professional organizations that direct these policies think they are in a position to decide what a woman’s life is worth.  Perhaps if they watched more women die of cervical cancer as has been my unfortunate experience, they would find that testing every year rather than every three and adding HPV testing is cost efficient.

 

What do you think?

 

Jerry I. Meyers

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Pa. Patient Safety Authority Claims They Can’t Enforce Reporting Requirements

December 9, 2011

In 2003 Pennsylvania legislatively passed what was then called “Tort Reform” again attempting to limit the rights of victims of medical malpractice.  Part of the legislation which was offered to make the grim restrictions more palatable created a Patient Safety Authority.  Hospitals were required by law and under threat of fines of up to $1000 [...]

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Jerry Meyers Named In “Top 100 Trial Lawyers” In Pennsylvania

November 16, 2011

Jerry I. Meyers of Pittsburgh, PA has been honored with a recognition by www.theatla.com in its selection of “Top 100 Trial Lawyers: Pennsylvania.” Pittsburgh, PA (PR NewsWire) November 8, 2011– Announcing a special recognition appearing in the March, 2010 issue of www.theatla.com published by The American Trial Lawyers Association. Jerry I. Meyers was selected for [...]

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Kyle’s Campaign for Justice Lost

August 22, 2011

Never have such important rights been lost so quietly.  The Pa. legislature abolished Joint and Several liability here by virtually eliminating a victim of negligence being able to recover those damages a jury has determined are owed by wrongdoers.  Most striking is that the loss of such rights went without comment in the press and [...]

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Kyle Hoff’s Campaign for Justice

June 10, 2011

The proponents of the bill which Kyle opposes in the video below call it the “Fair Share Bill” – but Kyle was completely innocent in the construction accident that left him paralyzed. Limiting the amount paid by the people who caused his tragedy is deemed “fair.” Doesn’t Kyle have a right to his fair share? [...]

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Disclosing Medical Error – The Right Thing To Do

June 7, 2011

To The Editor Regarding: The Value of Disclosing Medical Error I write this in response to an article posted by ALICIA GALLEGOS, of American Medical News, posted June 1, 2011. I heartily support the Lockton Report analyzing the findings of Aug. 17, 2010, issue of Annals of Internal Medicine. Such disclosures are not only good [...]

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Tort Reform – The Fox In The Hen House

May 11, 2011

The word “tort” means wrong. One would think that tort reform would represent an effort to reduce wrongs. In fact, tort reform, represents a collective effort by wrongdoers and those responsible for paying victims for the wrongs done them, to limit the compensation a victim is able to recover. Since lawyers have been the butt [...]

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Electronic Health Record Leads To Disaster

January 3, 2011

As was pointed out earlier, making a health record electronic is not useful if the original health record and its use was dysfunctional. An established tradition of non-communication between members of the health care team is in no way improved by making the entries legible. Further, the existence of default entries (prior entry remains in [...]

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Doctors Confess Their Fatal Mistakes

October 19, 2010

Joe Kika writes at readersdigest.com a remarkable set of interviews of physicians and nurses confessing medical mistakes for the record which either could have or did lead to wrongful death.  Among those interviewed was Peter Pronovost, a professor at John’s Hopkins University School of Medicine, who has received considerable notoriety as a patient safety advocate. [...]

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