Independent Duties Hospitals Owe Patients: Direct Liability for Medical Malpractice

Generally, depending on the jurisdiction, hospitals have a number of independent duties to patients. For example, according to Am. Jur. 2d Hospitals and Asylums § 26 Standard of care; corporate negligence doctrine, in some jurisdictions hospitals owe a duty to patients (1) to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) to select and retain only competent physicians; (3) to oversee as to patient care all persons who practice medicine within their walls; and (4) to formulate, adopt, and enforce adequate rules and policies to ensure quality care for their patients.
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Skin Antiseptic Chlorhexidine: Defense against Infection Comes with Risk

Chlorhexidine is a disinfectant and topical anti-infective agent with a novel mechanism of action that makes it highly unlikely that microbes will develop resistance to it. Its unique antimicrobial capabilities make chlorhexidine an important line of defense against nosocomial infections. Unfortunately, chlorhexidine use can be dangerous.
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Is Stillbirth Medical Malpractice Success Directly Proportional to Weeks of Pregnancy?

According to the CDC in its “Facts about Stillbirth,” stillbirth, the fetal loss 20 or more weeks after a woman becomes pregnant, effects about 1% of all pregnancies. About 24,000 stillbirths occur in the U.S. annually. Stillbirth is classified as either early, late, or term. An early stillbirth is a fetal loss occurring between 20 and 27 completed weeks of pregnancy. A late stillbirth is a fetal loss occurring between 28 and 36 completed weeks of pregnancy. A term stillbirth occurs after 37 completed weeks of pregnancy. The rate of early stillbirth has remained the same over time. Because of advances in medical technology over the last 30 years, prenatal care has improved, which has dramatically reduced the number of late and term stillbirths. Logically, this should translate to a directly proportional relationship between the likelihood of success for medical malpractice claims brought for failure to predict late or term stillbirth and the number of completed weeks of pregnancy. However, stillbirths with an unknown cause, referred to as unexplained stillbirths, are more likely to occur the further along a woman is in her pregnancy.

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Are Medical Lien Prices Evidence of Reasonable Value of Medical Services?

California’s Second and Third District Courts of Appeal are diametrically opposed regarding the role of medical lien purchases in determining the reasonable value of medical services where the an uninsured plaintiff has not paid for medical services. The California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc., 52 Cal.4th 541, 555-6 (Cal., 2011) (reh’g and modification denied Nov. 2, 2011) on remand, 2011 WL 6399842 (Cal.App. 4 Dist., Dec. 21, 2011) (unpublished/noncitable) (affirming the trial court’s order reducing the woman’s award to the amount her medical providers had accepted as payment in full from the woman and her insurer), limited a plaintiff’s damages for past medical expenses to the lesser of (1) the amount paid or incurred for past medical services or (2) the reasonable value of the services.
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Laparoscopic Gallbladder Removal: Minimally Invasive Procedure with Significant Risks

A laparoscopic cholecystectomy is a minimally invasive surgical procedure in which the gallbladder is removed with the assistance of a video camera and several thin instruments. Although “minimally invasive” sounds good, the downside is the reduced ability of surgeons to see all of the anatomical structures to ensure they cut the right ones and do not cut the wrong ones. During the procedure, it is not uncommon for the surgeon to cut the patient’s common bile duct, a small, tube-like structure formed where the common hepatic duct and the cystic duct join, which carries bile from the gallbladder to the upper part of the small intestine. A severed common bile duct can be repaired. Repairing a severed common bile duct usually requires the conversion of the procedure from laparoscopic to an open surgery, specifically a laparotomy, during which a large incision through the abdominal wall is made to gain access to the abdominal cavity. A Roux-en-Y hepaticojejunostomy procedure surgically sutures the common bile duct to the upper part of the small intestine. Medical malpractice lawsuits often ensue.
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Medical Device Cybersecurity: From Esoterica to Headlines

Some weeks, the FDA does not publish much new information. June 2013 was a week like that. It seemed like I was scraping the bottom of the barrel when I came across an FDA Safety Communication on cybersecurity for medical devices and hospital networks. I explained to my editor at Medical Law Perspectives that I had nothing else to choose from so I was stuck with a cockamamie topic. But my editor said to keep an eye out for more medical device cybersecurity risks as this was going to be a hot news topic.

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LASIK: Evaluate Pre-Op Patients Thoroughly with an Eye towards Potential Litigation

While working on the Medical Law Perspectives, January 2017 Report: Under Pressure: Liability Risks in Diagnosing and Treating Glaucoma, I noticed a trend among the medical malpractice cases related to glaucoma: the failure to diagnose glaucoma prior to performing LASIK (laser-assisted in situ keratomileusis) surgery. LASIK surgery is a type of refractive eye surgery that permanently changes the shape of the cornea to improve vision and reduce a person’s need for glasses or contact lenses. According to the Glaucoma Research Foundation, individuals who are at risk of developing glaucoma or already have glaucoma require special considerations before, during, and after LASIK surgery.

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FDA’s Database Makes Proving Causation in Foodborne Illness Cases Much Easier

The FDA promotes its Genome Trakr database as a food safety compliance tool. The Genome Trakr network, established by the FDA in late 2012, is comprised of FDA, state, federal and international food safety laboratories sharing whole genome sequencing (WGS) data from bacteria that cause foodborne illness. Whole genome sequencing and sharing the WGS results helps speed up outbreak investigations. The faster that public health officials can identify the food or ingredient that caused the illness and where it came from, the faster the harmful ingredient can be removed from the food supply — and the more illnesses and deaths that can be averted.
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Discovery Rule – Foreign Objects, Failures to Diagnose, and Reasonable Diligence

The textbook example of the discovery rule in action is a foreign object unintentionally left inside a patient during surgery. For example, in Ambers-Phillips v. SSM DePaul Health Center, 459 S.W.3d 901 (Mo., April 28, 2015) during a second surgery it was found that four foreign objects had been left inside the woman’s abdomen during the first surgery. The woman and her husband sued the hospital where the first surgery was performed for failing to account for and remove the four foreign objects during her first surgery. The suit was filed within two years from the date the woman discovered that the four foreign objects had been left in her body. Normally, the discovery rule would toll the statute of limitations until the foreign objects were discovered. However, Missouri has a ten-year statute of repose for foreign object medical malpractice claims. Statutes of repose begin to run on the date of the allegedly tortious act and provide an absolute deadline beyond which suit may not be brought. The claims in this case were time-barred and subject to dismissal because the suit was not filed within ten years after the first surgery when the foreign objects were allegedly left in the woman’s abdomen. Practitioners are cautioned that the discovery rule may be limited by a statute of repose in this way.

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Vaccination Decisions Have Legal Repercussions, Not Just Medical Ones

New Year’s Day 2016 was more than a day to make resolutions. In California, Senate Bill 277 took effect, under which only medical exemptions to required immunization will be allowed for students entering school after January 1, 2016. California no longer permits immunization exemptions based on personal beliefs for children in childcare and public and private schools. The language of SB 277 is available on the California Legislative Information website.

See also the Governor’s signing message.

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