Jerry Meyers, Medical Malpractice Lawyer

MUGUS (Monoclonal Gammopathy of Undetermined Significance)

2008-06-05T12:47:00.001-04:00

Each year many die of multiple myeloma. It is a cancer principally affecting bone but capable of metastasizing to the lung and soft tissue. A man or woman in their 40’s or 50’s suddenly suffering a fracture of some spinal element without any precedent trauma that they can recall is certainly a possible victim of this disease. Other primary bone cancers and infection are also possibilities.

In such setting, physicians often will perform a test called Protein Urine Electrophoresis. This test is calculated to determine the presence in the urine of light chain protein. It is not very important that one understand what a light chain protein is. It is important to understand that kidneys are not supposed to leak proteins and if they do leak proteins, it is a distinct possibility that a light chain protein is involved (also sometimes referred to as M proteins).

MUGUS is not multiple myeloma. There are distinguished physicians who write ablely and in detail about the differences. It is however also the case that if a person has evidence of MUGUS and they live long enough, they suffer a one in four chances of dying of multiple myeloma, a terrible illness.

It is for this reason that it is worthwhile to be screened by urine electrophoresis testing any time there is an unexplained fracture.

There are some who follow MUGUS simply by doing regular screening to determine whether the concentration of protein increases or not. These physicians will argue that there is no reliable evidence that treating multiple myeloma prior to its full-blown appearance does no good. On the other hand, if one doesn’t carefully monitor for this cancer by the time a diagnosis is made it is entirely possible that one will be suffering several crushed vertebrae with metastasis and other dreadful consequences. A delay in diagnosis worsens the outcome.

A client of ours once suffered a fracture while playing golf. He did not fall or strike himself. The fracture was of the neck bone. An intern appropriately considered the possibility that this unusual fracture without trauma might be due to osteomyelitis or some form of cancer such as multiple myeloma. Among the tests that were ordered was the urine protein electrophoresis examination. The test was positive but was reported to no one.

It is essential when you are in the hospital for a workup for any illness that you take active steps to learn whether all lab results and imaging results have in fact been directly communicated to persons with an interest in your health. A mistake in communication can have disastrous consequences.

Anesthesia error leads to woman's death

2008-05-27T19:15:00.005-04:00

Communication is essential between health care providers but sometimes communication fails because of the arrogance or carelessness of the persons involved in the needed medical communication.

Several years ago, a female client about to enjoy an important anniversary was admitted to a University affiliated hospital for the purpose of having a colostomy wound debrided (cleaned up).

This was to be a one-day inpatient hospital procedure and was associated with little to no risk. It was, of course, a part of the procedure, however that an antibiotic be administered to the patient at the time of the procedure to protect against the possibility of some subsequent infection.

Unfortunately in this particular case, when the antibiotic was administered the patient suffered a sudden cardiac arrest. This cardiac arrest resulted from a rare but well-known allergic reaction to a particular antibiotic. The patient was successfully resuscitated. No harm done.

Because the patient suffered a cardiac arrest before her surgery could be performed, she rescheduled the procedure to occur approximately thirty days later with the same surgeon who had earlier been involved. Though the anesthesiologist who had saved this patient’s life earlier recorded in the order sheet, in the progress notes and even in a typed signed note provided to the patient notice of what had happened to her, “You are allergic to the drug Cefotan. Don’t allow this drug to be administered to you. You may die.” Who could have done more to protect the patient from a similar future occurrence?

The patient showed her surgeon the note her anesthesiologist had provided and rather than openly disagreeing with the note he simply said he was aware of that.

Thirty days after the patient’s original cardiac arrest she was readmitted for a repeat of the same procedure that was originally planned. The patient had ugly premonitions about what might happen which she shared with the admitting nurse. The admitting nurse was sufficiently concerned that she assured the patient that an anesthesiologist would attend the patient before the patient went to the operating room to ease the patient’s mind. The anesthesiologist who came to the patient’s side assured the patient that everyone knew she was allergic to Cefotan. "You will not receive Cefotan." Were she to receive Cefotan she might die. The wristband the patient was wearing revealed the presence of this infection as did numerous references in the hospital records that no one could possibly miss. The anesthesiologist promised the patient, "You will not receive this drug."

Notwithstanding all these assurances the patient went to the operating room for her one-day procedure and as the same anesthesiologist entered the room who had just offered such reassuring promises, this anesthesiologist observed the patient was about to receive a prophylactic antibiotic intravenously. The anesthesiologist promptly inquired as to the type of antibiotic and was told, "Well its antibiotic Cefotan." "But she is allergic to that."

Amazing, the surgeon present who was the same surgeon present at the time of the original cardiac arrest insisted that the patient get the prophylactic antibiotic and the anesthesiologist present and the nurse anesthetist present lacked the courage to refuse. The drug was administered. The patient died.

These facts are taken from a real case. Agreements and legal restrictions prevent the identification of names and places or even institutions.

The case was concluded in such a way that all involved were aware of their involvement and what they did, how it contributed to the patient’s death and what should have been done otherwise. It is not always possible to prevent malpractice before it occurs but it is certainly essential to see to it when it has occurred with unfortunate results that those involved are made aware of what they have done and with what consequence. It is the least we can do to assure that it is less likely the catastrophe be repeated.

Hospital Acquired Infections

2008-05-12T14:49:00.004-04:00

According to the CDC 99,000 people die annually from hospital-acquired infections. As Betsy McCaughey Ross, the former Lieutenant Governor of New York put it, “You don’t often come across such a big problem that you can prevent.” McCaughey started the committee to reduce infection deaths in New York.

In Pennsylvania we suffer similar problems from hospital-acquired infections. The problem is two fold. First the communication of infection from patient to patient through contacts with healthcare providers and visitors results in a large proportion of people needlessly being infected.

More importantly, however, needless infections rarely have permanent or devastating results if the presence of infection is promptly recognized and properly treated. It is in general wrong to await the treatment of an infection until you have identified the specific organism involved. Once it is recognized that there is a potential infection in a part of the body, whether in the soft tissue, lung, urinary tract or elsewhere, waiting for results of cultures that identify the specific organism involved is entirely unnecessary. Instead, immediately after a specimen of potentially infected material has been obtained for culture analysis an appropriate antibiotic should be selected based on those organisms most often afflicting the organ or tissue involved. In addition, antibiotic should be selected with a broad enough coverage spectrum that a wide spectrum of different organisms that might be causing infection will be effectively controlled. The antibiotic initially chosen can be changed if clinical improvement does not occur or if culture results (sometimes not available for days) suggest a different drug is indicated.

In the case of surgical wounds, redness, warmth, swelling and pain are all signs of a potentially infected wound. In addition fever, chills and night sweats are further often late signs of infection. Antibiotics may be inadequate to address a particular infection even if they are appropriate to the bacteria involved. This is because sometimes the infection becomes associated with a collection of bacteria and pus, an abscess, which requires surgical drainage in order for antibiotics to be effective. Moreover, abscesses once formed in the abdomen, soft tissue or elsewhere can seed bacteria into the blood causing bacteremia leading to septic shock and death. Since many infectious deaths are preventable, it is tragic that so little effort is employed in hospital systems to identify those suffering permanent injury or dying from preventable or earlier treatable infections.

In this firm we have examined countless cases of patients having suffered adverse consequences from infections. It is often the case that the patient’s infection in the first instance was not preventable. It is very difficult to show that a particular infection was acquired because of breaks in sterile technique by hospital personnel. Patients in hospitals are susceptible to infection because they are often ill. Anytime surgery has been performed the surrounding tissue has an impaired ability to resist the consequences of infection.

It is for this reason that it is so important that signs of infection are rapidly recognized and reacted to.

Persons whose lives have been lost or have suffered debilitating catastrophic injury as a consequence of delay in the diagnosis and proper treatment of an infection have been assisted by our office on many occasions. Serious injury and death following infection therefore always justifies an inquiry as to whether there was a timely and proper response to the signs of infection that may have been present.

Quite often it is the case for various reasons that an infection grows to have grave consequences in spite of the fact that it is recognized and properly treated. Even in these circumstances it is typical that doctors and nurses involved in the care of the patient inadequately explain to the survivors and family the course which led to the unfortunate result. We have served hundreds of families in relieving doubts concerning whether a very bad result was preventable or not. Though these end up being families we don’t represent, we nevertheless serve them and are grateful to have the opportunity to bring them to an understanding of what otherwise might have been a life-long matter of concern.

Death Due To Anesthesia

2008-05-12T14:38:00.004-04:00

According to the American Association of Nurse Anesthetists1 mortality rates for conditions studied were from 0.11% to 1.2%. While these percentages may seem small when one considers the hundreds of thousands of surgical cases performed annually under anesthesia an ominous picture emerges. The average for all patients is 0.38%. This means that out of every 1000 cases, 38 patients die. The mortality rate adjusted by operation does reveal certain patterns. Mortality rates were lower, 10 times lower for mastectomies and hysterectomies than they were for cholecystectomies. In a more recent risk-adjusted study of 117,440 surgical cases in Pennsylvania, Silber, et al.2, observed an increase of 2.5 deaths per 1000 patients when an anesthesiologist was not involved in the case. This statistic is alarming in light of the Institute of Medicine’s Review which concluded: "Today anesthesia mortality rates are about one death per 200,000 to 300,000 anesthetics administered."

Nevertheless the Institute of Medicine in a study more broadly considering anesthesia practices throughout the United States does not confirm a difference in overall anesthesia-related mortality based on whether an anesthesiologist or a nurse anesthetist was present.3 Though the above-cited materials focus on whether there is a different risk and whether an anesthesiologist or nurse anesthetist is present, what gives one greater pause and concern is the fact that the risk for anesthesia-associated deaths is so high. Even stranger is the ten-fold increase in anesthesia mortality when a cholecystectomy is done as opposed to a mastectomy or hysterectomy. All are major operations.
In any event, mortality from anesthesia should be so infrequent that its occurrence always justifies a proper investigation and explanation.

This law firm has investigated countless anesthesia-related cases and has therefore considerable experience in assisting survivors and family members as well as injured patients in learning whether a suspected anesthesia complication was unnecessary or not.

[1]April 2003; 71:109-106

[2]Silber, J.H., Kennedy, S.K., Even-Shoshan, O., et al., Anesthesiologist Direction in Patient Outcomes, Anesthesiology 2000:93:152-163.

[3]Institute of Medicine, To Err is Human Building a Safer Health System, Washington, D.C. National Academy Press, 1999:27

Anesthesia Errors: Evaluation of the Anesthesia Case – Failure to Maintain a Patent Airway

2007-09-21T14:08:00.000-04:00

The practice of anesthesiology is broad in scope extending from the control of pain and consciousness in the operating room or elsewhere to the control of pain generally in the hospital or even in the outpatient setting. In the operating room, the anesthesiologist, in addition to having an extensive monitoring role, has independent responsibility for evaluating and supporting cardiopulmonary function. Because of their monitoring functions, anesthesiologists, as a rule, document their activities contemporaneously and more thoroughly than any healthcare provider other than perhaps the critical care nurse. In addition, because errors in the administration of anesthesia can result in catastrophic injuries (which in the past were often preventable) the specialty has evolved more thorough and rigid guidelines than most medical specialties. Anesthesiologists have also benefited from the advent of safeguards such as continuous pulse oximetry and continuous mean arterial pressure and blood pressure monitoring systems. Notwithstanding the rigid guidelines and all the technologic advances, there are still serious preventable injuries, which occur and are entirely the responsibility of anesthesiologists. The one which I choose to address in this article will be airway management.

A completely healthy human being cannot survive more than a few minutes of apnea (absent ventilation) without suffering serious injury and in some cases severe brain damage or death. Nevertheless, at the beginning of every surgical procedure where inhalation anesthesia is to be employed, there is an intentional period of apnea artificially induced by the administration of paralytic drugs to enable the anesthesiologist to pass a tube through the oral pharynx into the trachea in order to secure the patient’s airway for the administration of assisted ventilation and inhalation anesthesia. Sometimes when the patient’s spontaneous ventilation have been intentionally eliminated by the use of paralytic drugs, there is difficulty in securing the airway and the anesthesiologist then experiences what most anesthesiologists regard as their worst nightmare (though it is truly a greater nightmare for the patient’s family). A patient’s ability to self ventilate has been eliminated intentionally and routinely. An airway cannot be passed or an airway is passed but a patient cannot be ventilated through the airway. The patient cannot self ventilate because of the paralytic agent. The patients dies. Alternatively, the patient is successfully ventilated ultimately but suffers severe brain damage because of the interval of apnea. The patient then subsequently either dies or is left in a comatose state.

In 1993, the American Society of Anesthesiologist’s Task Force on management of a difficult airway, promulgated practice guidelines for the management of the difficult airway which were published in the Journal of Anesthesiology, 78:597 (1993). First and foremost, it is the anesthesiologist’s responsibility during the course of a pre-operative anesthesia evaluation to assess the likelihood that a difficult airway will be encountered. Prior records are to be examined and a careful history is to be taken. There is a wide array of frequently encountered physical anomalies, which can be assessed and identified during the course of the pre-anesthesia evaluation. For a patient in whom a difficult intubation is anticipated, a specific strategy must be developed for how the difficult airway will be managed. One alternative, when a difficult airway is anticipated prior to a surgical procedure, is to not perform the surgical procedure or to perform it under regional or other form of anesthesia. In Pennsylvania a patient’s consent to anesthesia, where the patient has a difficult airway, cannot be informed consent, if the patient is not made aware of the hazards of proceeding with the surgery in the face of a difficult airway. In one of every ten thousand inhalation anesthesias an intubation effort fails and a patient cannot be ventilated and dies. For a patient with a difficult airway, the risk is a thousand times greater.

If the surgery is to be done under inhalation anesthetic, notwithstanding the risk, short-acting paralytic agents are to be given and the patient is to be pre-oxygenated to such an extent, they are easily (like a pearl diver) able to survive without harm a prolonged period of apnea. They can then await the return of their own spontaneous respiratory function after the short-acting paralytic agent has been metabolized. Awake intubation can also be attempted where the intubation is conducted without the use of paralytic drugs. Whatever method is employed initially, the anesthesiologist must be prepared before the procedure begins to deal with the possibility that awake intubation will be unsuccessful or that spontaneous ventilation will not effectively be restored. In teaching hospitals an experienced bronchoscopist must be immediately available for the placement of a tube by fiber optic bronchoscopic guidance, transtracheal jet ventilation should be available so that a patient can be ventilated through a needle inserted through the cricoid cartilage into the trachea. It is important to remember that securing an airway surgically is not an effective viable alternative in most cases.

Though there are cases, to be sure, where well-prepared anesthesiologists observing every precaution have encountered an airway that could not be secured and ventilation that could not be recovered, it is in the opinion of this author most often the case that the loss of a patient before the commencement of surgery because of a failure to secure an airway is the result of the failure to have properly identified that a difficult airway existed or the failure to have properly prepared for a difficult airway in accordance with the accepted guidelines of recognized authorities in the field. For general reference on this subject look to Anesthesia, Editor, Ronald D. Miller, 5th Edition 2000, Complications in Anesthesiology, Editors Gravenstein and Kirby, 2nd Edition 1996, Clinical Anesthesia, Editors Burak, Cullen, Stoetling, 3rd Edition, 1997, and Anesthesia for Obstetrics, Editors Shnider and Levinson, 3rd Edition, 1993.

Brain Injury Cases: Evaluation of an Anoxic Brain Injury Case

2007-09-21T13:59:00.000-04:00

Patients thankfully do not frequently suffer a brain injury during the course of a hospitalization. When such injuries do occur, medical personnel are quick to explain the occurrences as tragic but unfortunate consequences of unavoidable events. Sometimes they maintain that the cause of the brain injury is unknown. Family members come to lawyers because they are instinctively unsatisfied with the explanations that they have been given, if they have been given explanations at all. It is a daunting task to search for causes of a medical catastrophe cloaked in mystery at the time of the initial client interview.

Brain injuries result from a broad variety of cardiovascular insults. Because of limitations of time and space, this article will address only those brain injuries, which have resulted from cardiac and/or respiratory insufficiency. Hemorrhagic and/or embolic strokes and brain damage due to trauma or infection will not be addressed here.

The reason that severe metabolic (hypoxic and/or ischemic) brain injury is so rare is that the insult needed to produce such injuries invariably would result in death in most cases. The fact that a person is left brain injured rather than dead simply means that there was an effective treatment for the respiratory and/or cardiovascular insufficiency, which, though employed late, was employed in time to effectively restore vital functions. If the treatment were provided a bit later, all these patients would simply be dead.

Brain tissue is rather delicate. Other tissues of the body are far more resistant to a lack of oxygen. A person who has a normal cardio-respiratory function and suffers cardiac arrest, may be successfully resuscitated without permanent injury even though a period of six to ten minutes have elapsed from the time of initial collapse. The frequently cited time limit of four minutes prior to onset of brain damage is conventional but relates primarily to those persons suffering some protracted period of cardio-respiratory insufficiency or other metabolic deficiency prior to arrest.

One important proof that the human brain endures with regularity complete cessation of circulation longer than four minutes without permanent adverse consequence can be found in the literature describing the prognosis of patients having been successfully defibrillated from witnessed ventricular fibrillation. Such literature establishes that after six minutes the chances of successful defibrillation markedly and abruptly decline, as do neurologically intact survivors. That so many neurologically intact survivors exist, notwithstanding delays in excess of four minutes, and that patients and are neurologically intact with even greater delays prove the fallacy of the four minute convention.

The window for survival neurologically intact or otherwise, for the overwhelming majority of patients does not exceed ten minutes, except in the case of cold water drowning or other special circumstance. The fact that the window is so narrow is the reason that the survival of the brain-damaged patient automatically raises suspicion that there was a treatment adequate to prevent death, which was not employed in time.

Indeed, it has been the experience of this author that when brain injury has occurred as a result of cardio-respiratory insufficiency while a patient was being attended in a monitored unit, that a meritorious case has invariably existed. Brain damage does not occur in a normotensive patient because, as sensitive as the brain is to hypoxia, it nevertheless has the ability to resist damage so long as an adequate volume of blood is being supplied, albeit with less than the desirable quantity of oxygen.

Prior to hypoxia causing brain damage, it must persist for a sufficient length of time for hypotension to occur. The initial response of the heart to hypoxia is an increased heart rate (tachycardia) which is followed after a time by a decreasing heart rate (bradycardia). The heart beats faster to attempt to compensate for the decreased quantity of oxygen. As the heart, notwithstanding increased rate, eventually is unable to meet its own metabolic needs, the heart rate falls and with the fall of the heart rate comes a simultaneous fall in blood pressure. After shock ensues, hypoxia risks brain injury but there is a window of time remaining during which a restoration of adequate oxygen will permit resuscitation without brain injury.

Though there are similarities in the effects of brain injuries resulting from primary cardiac events (myocardial infarction) and those resulting from respiratory events, there are important differences medical-legally. For example, all of the measures needed to prevent the death of a patient from respiratory insufficiency can be employed in any general hospital in time in a patient with a healthy heart, to prevent brain injury. No patient should be permitted to go without respiratory support long enough to produce a predisposition for a brain injury. The signs of respiratory dysfunction are obvious as they are demonstrated by changes in color, respiratory rate and pattern of breathing.

In monitored hospital beds, pulse oximetry is routine. A pulse oximeter is attached to a finger or toe. It looks a bit like a large thimble and has a spring-like device, which secures it to the digit. Pulse oximeters measure oxygen saturation. They are all set to alarm audibly if a decline in oxygen saturation occurs. The alarm limits are always to be set at a level far above where any damage from lack of oxygen might ensue. In addition, in intensive care units and in many step-down units, all patients have cardiac monitoring as well. As mentioned earlier hypoxia causes an elevation in pulse and tachycardia invariably well before a patient’s brain tissue would be threatened.

The response to respiratory insufficiency should not be casual. It is to be regarded as an emergency. Nurses at every hospital are permitted to employ oxygen without a doctor’s order. Nurses also can assist ventilation mechanically without a doctor’s order in cases of extreme shortness of breath where supplemental oxygen has not resolved the problem. Nursing personnel are required, simultaneous with their provision of respiratory support, to request in-house physicians or anesthetists, who can within seconds after arrival restore ventilation by means of the placement of an endotracheal tube in the event that simple bag-mask ventilation does not resolve the problem. If an endotracheal tube cannot be placed, cricoidthyroidotomy can be performed in thirty to forty seconds. A needle-like device is inserted through the cricoid cartilage in the anterior neck. The patient is ventilated through the large bore needle. This technique is employed in cases of respiratory obstruction or in other circumstances where a tube cannot be placed.

The cases of brain injury following sudden cardiac failure should be viewed with a similar skepticism. Such events often occur in a monitored setting. If not, the event would not be recognized and the patient would be dead rather than brain damaged. A patient does not usually suffer brain damage because they have had a heart attack. They suffer such damage because the treatment which restored cardiac function was not given in time. Sudden treatable cardiogenic shock or arrest is therefore, without more, an insufficient excuse for brain injury.

When a patient survives a cardiac or respiratory event with brain damage, it is certain that a means of treatment was available which, if provided at some earlier point in time, would have avoided the brain damage. For that reason, an investigation into why the damage occurred is mandatory. Most often, one will find that brain damage occurred because of an untimely and inadequate response to earlier signs of deterioration. Though it may not be possible to prove negligence, a search for such proofs represents one of the most challenging and rewarding tasks that we, as trial lawyers, can undertake.

Negligence in Cervical Cancer Detection

2006-12-05T17:46:00.000-05:00

The Significance Of The Pap
The Pap smear is a screening test, which has made the early diagnosis of cervical cancer possible. Developed in the early 1940s by New York physician Dr. George Papanicolaou, this test permits the examination of cells removed from the surface of the cervix. Although the use of the Pap smear should virtually eliminate the chances of a woman developing invasive cancer, this year alone, approximately 7,000 women will die of the disease--a disease that is largely preventable.

The Tragedy Of Misread Tests
There are two major reasons why women continue to die needlessly from cervical cancer: One is the failure to get annual gynecological exams and Pap smear evaluations. The other is the doctors' or hospitals' failure to properly perform and interpret Pap smears or to properly treat patients once the diagnosis of cancer or cancer-like conditions has been made.
Because a significant percentage of Pap smears are misread, many women are led to believe that they have no problem, when, in fact, cervical cancer may already be developing. Instead of preventing cancer through early detection, a misread Pap smear actually enables the cancer to grow.

In 1989, the American Medical Association documented that 15% to 30% of all Pap smears that reported showing no adverse change, in fact, had cancer or cancer-like cells present that required treatment. Most women who have these dangerous changes diagnosed can be cured with proper treatment. That's why it is particularly tragic that errors continue to be made in the performing of Pap smears and in the diagnosis and treatment of the conditions they often reveal.

A Need For Vigilance
Over the past several years, investigations conducted by Jerry Meyers and others have confirmed that doctors may be negligent when they take or analyze Pap smear tests, and, as a result, they may begin treatment too late. This negligence is the leading cause of death or disability of clients we have represented. In many cases, even when the Pap smears are properly obtained by the physicians, they may be misread or misinterpreted by the hospitals or laboratories to which they have been sent. Without greater vigilance, these needless deaths will continue to occur.

If a woman develops cervical cancer--even though Pap smears were being performed regularly at the recommendation of a physician--negligence may be the cause. For this reason, we obtain an independent review of the Pap smear slides for each cervical cancer patient evaluated by our office. This review is conducted by a pathologist specially trained to determine whether or not danger signs existed that should have been detected by others.
Unfortunately, many cases come to our attention too late to prevent death. In proving such cases, we must identify the mistakes that caused our clients' harm. In so doing, we hope to make it less likely for the persons who made those mistakes to repeat them.

If you're dealing with Medical Malpractice, here's something you should read.

2006-12-05T17:18:00.000-05:00

Tragic and unexpected results sometimes occur during the course of medical care. Could this have been avoided?

A child is very ill when born and is later diagnosed with cerebral palsy. A patient dies following routine elective surgery. Many immediately assume the doctor was at fault while some believe it was just meant to be. As lawyers representing patients in Pennsylvania with medical malpractice cases, we know that not every bad result is preventable. On the other hand, many are. The difficulty, of course, is finding out what happened and why.

How do you begin? Start by asking questions. If the answers don't make sense or if you have other suspicions, then perhaps you should seek another professional's opinion, preferably a lawyer whose practice is devoted to medical malpractice cases. We have lawyers here at Meyers Kenrick Giuffre & Evans who devote all or most of their time to medical malpractice cases in Pennsylvania. They can obtain and evaluate medical records, and following research and consultation, give an opinion on whether the bad result could have been avoided. Doctors working here full time assist in the evaluation and management of cases.