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Posted On: October 30, 2009

Signed Releases From Liability Don't Always Matter

As a Delaware trial lawyer, I was recently called by an injured client who wanted to know whether she could file a lawsuit even though she had signed a release of liability. In her case, the answer was “yes.” A good example of this is a recent trial in Texas where a jury awarded $11.4 million to a boy who was seriously injured at a Texas Motor Speedway, a paved 1/5 -mile track designed for amateur adults and children as young as 8. The accident happened when another boy drove across the lot to enter the track, lost control of the car, narrowly missed a trailer and several parked cars and then slammed into the injured child as his parents, brother, and others watched. driving. He suffered a traumatic brain injury that’s so severe he will never live independently and will need help with basic daily tasks such as bathing, dressing and eating.

The boy’s parents signed releases that spelled out the risks and barred them from filing a lawsuit. Even so, the jury found that the race track should be held accountable because it did not provide barricades, signs, a kill switch on the car, and proper instructions to prevent an accident. After the trial, the Speedway added safety precautions to avoid future problems.

The moral of the story is that if you’re injured after you signed a release, you should consult with a Delaware attorney before you decide that you don’t have a case.

Posted by Charles Snyderman | | Email This Post

Posted In: Personal Injuries

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Posted On: October 29, 2009

Birth Injuries - Informed Consent - Delaware Attorney

As a Delaware medical malpractice lawyer, the saddest cases I handle are severe birth injuries that could have been avoided. Usually, this involves a delay in the delivery during which time damage to the baby’s brain occurs because of a lack of oxygen. Unfortunately, this happens much too often. Take a look at the following example.

A Maryland jury recently awarded $13 million to a mother who was not told by her doctor that a C-section was an option. The mother had gone to the hospital at 28 weeks gestation with bleeding. After she was stabilized, they kept her in the hospital for the next 6 weeks for monitoring and observation. Although her OBGYN discovered several complications with the mother’s pregnancy, he didn’t tell her about this and never gave her the option of an earlier delivery by C-section. During this time, the mother had what’s known as a complete placental abruption, and this caused her son to have severe permanent and irreversible neurologic injuries.

The Court decided that the doctrine of informed consent required the mother’s doctor to divulge all information that would be material to her decision about whether to continue with the conservative treatment and wait until 36 weeks gestation, or to deliver earlier by C-section.

So what is informed consent? In Delaware, informed consent is the patient’s consent to medical treatment after the patient has been told the nature of the proposed treatment and the risks and alternatives to that treatment which a reasonable person would consider important to the decision whether or not to undergo the treatment. The important thing about informed consent is that it’s more than just signing a written consent form. Instead, informed consent involves communication between the doctor and the patient.

In my next article about informed consent, I’ll discuss what this communication process should include.

Posted by Charles Snyderman | | Email This Post

Posted In: Medical Malpractice in Delaware

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Posted On: October 19, 2009

Steps You Can Take To Prevent Hospital Errors

As a Delaware malpractice lawyer, I believe that there would be fewer medical errors if patients took a more active role in their care. Let's talk about infections in hospitals. The Centers for Disease Control and Prevention (CDC) is a part of the Department of Health and Human Services. According to the CDC, 2 million people come down with infections in the hospital every year, and 90,000 of these people die as a result. There are lots of reasons why this occurs, but there’s something you can do to help avoid becoming infected.

How many times have we all heard in recent months that it’s important to wash your hands? Well, less than half of the doctors and nurses adhere to this essential step. Insist that anyone who touches you first wash their hands with soap or an alcohol-based solution. This includes your visitors. If you don’t see them do it, politely ask if they have. According to some studies, hospital employees are more likely to wash their hands if they know someone is watching them. Insist that nurses and others who attend to you wash their hands. You may feel funny asking them to wash, but it’s important if you want to keep dangerous bacteria from causing infection.

When you're in the hospital, be sure to have a member of your family, a friend, or even a private duty nurse to be your advocate. This person should stay with you during the day and even overnight. They can ask questions you might not think about, and they can help make sure you get the right medicines and treatments. Also, your advocate can help remember answers to questions you’ve asked. Importantly, your advocate should ask your doctor what to look for if your condition is getting worse, and who should be called if this happens.

A lot of doctors wrongly assume that patients understand the discharge instructions that they go over quickly. When you’re being discharged from the hospital, ask your doctor to explain the treatment plan you should use at home. This includes learning about your medicines and finding out when you can get back to your regular activities. This is another time when having an advocate there with you can be very helpful.

Posted by Charles Snyderman | | Email This Post

Posted In: Medical Malpractice in Delaware

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Posted On: October 14, 2009

How To Help Protect Yourself From Medical Mistakes

As a Delaware malpractice lawyer, I've seen all kinds of medical mistakes that could have been avoided. Here are just a few:

Missed diagnosis
Delayed diagnosis
Lack of informed consent
Birth injuries
Doctor errors
Nursing error
Hospital errors
Anesthesia errors
Surgical errors
Pharmaceutical errors
Medical device errors
Misread x-ray, slides, and ultrasounds
HMO misconduct
Adverse drug reactions
Labor and delivery
surgical injuries
Spinal cord injuries
Improperly prescribed, dispensed or filled medication
Dental injuries

So what can you as the patient do to help protect yourself from becoming a victim of medical malpractice? The most important thing you can do is to take an active role in your care. So how do you do this? Let's take a look at medication errors.
You're at the drug store to pick up your medication.

1. Open the bag . Make sure they gave you what you're supposed to get.
2. Don't sign too quickly. The cashier asks you to sign a paper or an electronic screen that says you agree that you've received the information you need. Most of us sign it without even thinking about it. Don't sign it without checking first.
3. Read every word on the label. Check for the name of the drug, and if the name isn't the name your doctor told you he was prescribing, don't assume they're giving you the generic substitute. Ask the pharmacist.
4. If the pharmacist or the cashier asks if you need counseling on the medication, say "yes."
5. When you're at the doctor's office, write down the medicine that's being prescribed. Take your notes to the pharmacy and compare the name you wrote down with the name on the bottle.

Posted by Charles Snyderman | | Email This Post

Posted In: Medical Malpractice in Delaware

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Posted On: October 10, 2009

Medical Malpractice In Delaware - part 2

As a Delaware medical malpractice lawyer, I talk with clients all the time who ask about suing their doctor or a hospital. These people were seriously injured, and they feel that the doctor or the hospital should pay. In my last article, I explained that medical negligence occurs when a doctor runs through a medical red light (deviates from the standard of care). The purpose of this article is to discuss the question of causation.

To win a medical malpractice case in Delaware as in other states, we have to prove what the standard of care is, that there’s been a deviation from the standard of care, and that there’s a causal link between the deviation from the standard of care and the patient’s injury. Causation may sound simple, but believe me when I tell you. It’s not.

In order to prove causation, a medical expert has to testify in court that there’s a reasonable medical probability that the doctor’s negligence caused the patient’s injury. Let’s take a recent medical malpractice case in Delaware where the jury decided that the doctor was negligent, but that his negligence was not the cause of the injury to the patient.

On November 19, 2001, a family doctor viewed x-rays of the patient’s chest but didn’t see any problem. In April 2002, a different doctor diagnosed the patient with lung cancer Metastatic lung
cancer caused the patient’s death on January 4, 2003. The patient’s family claimed that the doctor negligently interpreted and reported the November 19, 2001 chest x-rays and that his failure to detect and report discoverable cancer at that early stage in 2001 resulted in a curable lung cancer metastasizing and becoming an end stage, incurable cancer by the time of its diagnosis in 2002.

During the trial, it was proven that the abnormalities shown in the November 19, 2001 chest x-rays were consistent with the presence of lung cancer and that the standard of care required the doctor to identify the abnormalities as a potential malignancy and to recommend that a chest CT scan be performed to further evaluate the abnormalities in order to facilitate a definitive diagnosis. What was disputed, however, was whether the radiographic abnormalities in Barrow’s left upper lobe were benign. If they were, the follow up diagnostic testing required by the standard of care, which included the surgical removal of the abnormal tissue in the left upper lobe, would not have revealed the cancer. Any negligence on the doctor’s part, therefore, could not have proximately caused the patient’s death.

In order to win the case, the plaintiff would have to prove that the abnormalities would not have been benign, and that diagnostic testing and surgery would have led to the discovery of the cancer in time. This issue usually comes down to a battle of the experts, and who the jury decides to believe.

Medical malpractice cases are expensive to bring, and most of these cases are decided in the doctor’s favor. In my next article, I’ll talk about the results of these cases in Delaware.

Posted by Charles Snyderman | | Email This Post

Posted In: Medical Malpractice in Delaware

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Posted On: October 3, 2009

Suing For Medical Malpractice In Delaware

As a Delaware lawyer who represents victims of medical malpractice, I find that many people don’t have a real good understanding of the basics of bringing a medical malpractice lawsuit. This is the first in a series of articles describing the ins and outs of medical malpractice lawsuits in Delaware.

MEDICAL EXPERT WITNESS REQUIRED
When we file a medical malpractice lawsuit here in Delaware, we’re required to also file what’s called an “affidavit of merit” signed by our medical expert doctor. This affidavit must say that in the opinion of this expert, there are reasonable grounds to believe that there’s been medical malpractice, and that the malpractice was the cause of your injuries.

WHAT IS MEDICAL MALPRACTICE?
Medical malpractice occurs when a doctor runs through a medical red light. A medical red light is more commonly referred to as a “standard of care,” and a doctor runs through this red light when he deviates, or fails to adhere to the standard of care.

STANDARDS OF CARE
Standards of care are like the rules of the road. We all know that a driver has to pay attention, stop at stop signs, and yield the right of way under certain circumstances. And of course there are many more rules that drivers have to follow.

Well, doctors have rules of the road (standards of care) that they have to follow. Here’s a standard of care that applies when a CT scan reveals the presence of two ovarian cysts in the patient’s body – the standard of care requires the doctor to (1) inform the patient of the presence of the cysts, (2) refer the patient for a sonogram, and (3) refer the patient for an OB/GYN consultation.

Let’s look at standards of care for back pain.
•A doctor should conduct a focused history and physical examination to help place patients with low back pain into 1 of 3 broad categories: nonspecific low back pain, back pain potentially associated with radiculopathy or spinal stenosis, or back pain potentially associated with another specific spinal cause. The history should include assessment of psychosocial risk factors, which predict risk for chronic disabling back pain.
•A doctor should perform diagnostic imaging and testing for patients with low back pain when severe or progressive neurologic deficits are present or when serious underlying conditions are suspected on the basis of history and physical examination
•A doctor should provide patients with evidence-based information on low back pain with regard to their expected course, advise patients to remain active, and provide information about effective self-care options.
•A doctor should consider the use of medications with proven benefits in conjunction with back care information and self-care.
•A doctor should assess severity of baseline pain and functional deficits, potential benefits, risks, and relative lack of long-term efficacy and safety data before initiating therapy. For most patients, first-line medication options are acetaminophen or nonsteroidal anti-inflammatory drugs.
•For patients who do not improve with self-care options, a doctor should consider the addition of nonpharmacologic therapy with proven benefits for acute low back pain, spinal manipulation; for chronic or subacute low back pain, intensive interdisciplinary rehabilitation, exercise therapy, acupuncture, massage therapy, spinal manipulation, yoga, cognitive-behavioral therapy, or progressive relaxation

In my next article, I’ll talk about the concept of causation.

Posted by Charles Snyderman | | Email This Post

Posted In: Medical Malpractice in Delaware

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