Delaware Business Lawyer Blog

Anyone who’s had a procedure done in a hospital has heard of the term “informed consent.” You know, it’s that form they make you sign, and it tells you all of the risks of the treatment you’re going to have. They tell you this because you have the right know all of the information that’s important to a patient who has to decide whether to go ahead with the treatment. But what happens if you decide to have the procedure, and you end up with serious complications? You hire an attorney to find out what your rights are, and you learn that the complications you’re suffering from should have been disclosed to you, but weren’t. Is that enough to file a lawsuit for medical malpractice?

Let’s take a look at an actual lawsuit that was filed by the family of a woman who died as a result of a procedure that she had. It turns out that the doctor failed to inform her that the risk of dying from this procedure was much greater than the risk of dying from general anesthesia. When the family filed a medical malpractice case, they argued that the doctor violated the informed consent law of Delaware.

You might think that to win a medical malpractice case based on a lack of informed consent, all you’d have to prove is that the doctor failed to tell the patient about the risks and alternatives that are important in making a decision whether to undergo the procedure, and that the patient was injured by one of the complications that should have been disclosed but wasn’t.

According to the Delaware Supreme Court, you have to prove one more thing in an informed consent case. And what you have to prove is that a reasonable person, after being told the risks and alternatives that the doctor failed to tell you about, would have decided against having the procedure.

Let’s allow that to sink in. If you have serious complications (even death) from a medical procedure, and the doctor failed to tell you about these complications, you have to prove that a reasonable person would have declined the procedure.

If you think that’s just wrong, then you’d be agreeing with me.

Officials at the Johns Hopkins Children's Center are considering whether to appeal a $250,000 verdict by a Baltimore Circuit Court jury that found the hospital's staff inappropriately restrained a disabled girl, causing extensive bruising.

Brooke Greenberg has a rare genetic disorder. Although 17 tears old, she is the size of a toddler. She ways less than 20 pounds. She can’t communicate, and she’s been diagnosed with numerous medical conditions, including cerebral palsy and epilepsy. There have been numerous times throughout her life when she’s received treatment at Johns Hopkins Children’s Center. In 2007, Brooke had to spend the night at Johns Hopkins. The next day, her father discovered a large bruise on her forehead, as well as a lot of bruises on her arms and legs.

When Brooke’s father asked the hospital staff what happened, they had no explanation. Instead, they arrogantly told him that at Johns Hopkins, they don’t make mistakes. Because her father wanted answers, he hired an attorney and filed suit.

At the conclusion of the trial, the jury decided that Brooke had been restrained inappropriately, and that this was the cause of the bruises. The jury awarded Brooke $250,000 due to the hospital’s negligence.

What’s the value of a human life? Last week, in a medical malpractice case, a jury in North Carolina decided it was $7 million. Here's what happened.

A 54 year old woman went into the hospital for what was supposed to be a routine hysterectomy. A one night stay in the hospital was all that was required.

The day after the surgery, the patient was sent home right on schedule, despite the fact that she had an elevated white blood count and was complaining of pain. Later the same day, she sneezed and was in so much pain that she had to go back to the hospital (the hospital was an hour and a half w]\away from home). It turns out that her bowel had been perforated by the surgeon during the hysterectomy, and it had gone unnoticed. The perforation was not discovered for another 80 hours, and by that time, she had developed sepsis and multipe organ failure.

What happens when a bowel is perforated and not discovered is that the contents of the bowel end up spilling out into the abdominal cavity. This is exactly what happened to this patient.

While the perforation should not have happened, the real departure from the standard of care occurred when the perforation and the sepsis went unnoticed for so long even though there were obvious signs that she had an infection and bowel perforation.

Sepsis is a blood infection caused by bacteria in the bloodstream. It causes your blood pressure to drop, and in turn the vital organs start to shut down.

During the trial, the jury learned what a remarkable woman she was. For example, while she was in her 30's, she decided to enroll in special education so she could learn why her son had trouble reading and writing. She graduated at the age of 40 and became a special ed teacher.

And it was not lawyers or plaintiffs who put a value on this woman's life. It was a jury of citizens.

As a Delaware attorney who represents clients who were neglected by nursing homes, I'd like to share an interesting case. After a 92-year old Kentucky man had a stroke, he was cared for at home by his wife and other family members. This went on for about 8 months, and then it was decided that he should have professional care in a nursing home. He was in the nursing home only 9 days before he had to be transferred to a hospital for dehydration, malnutrition, infections and bed sores caused by neglect. A short time later, this man died.

His family filed a lawsuit against the nursing home, and after a 3 week trial, the jury found in favor of the family and awarded them $43 million. This verdict was broken down by the jury as follows:
(1) $1 million for the pain this man suffered
(2) $1.75 million for the wife’s loss of her husband
(3) $40 million in punitive damages

Why are punitive damages given? Their purpose is to punish the wrongdoer, deter him from engaging in similar conduct in the future, and hopefully deter others from engaging in the same kind of conduct. Punitive damages are treated differently from state to state.

In Delaware, we could not get an award of $40 million for punitive damages when the jury's award for pain and suffering was only $1 million. That’s because in Delaware, the amount of punitive damages has to be reasonably related to the amount of compensatory damages awarded.

I’ve previously written about preventable medical errors. According to the National Quality Forum (NQF), there are 28 serious healthcare errors that are considered largely preventable. These 28 errors are divided into the following 6 categories:

1. Surgical events (5 types of errors, including surgery performed on the wrong body part)

2. Product or device events (3 types of errors, including patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility)

3. Patient protection events (3 types of errors, including infant discharged to the wrong person)

4. Care management events (8 types of errors, including Stage 3 or 4 pressure ulcers acquired after
admission to a healthcare facility)

5. Environmental events (5 types of errors, including any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances)

6. Criminal events (4 types of errors, including death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of a healthcare facility)

Delaware hospitals no longer charge for medical errors that are recognized by the NQF as serious adverse events. According to the Delaware Healthcare Association, this policy of not charging is supposed to show the people in Delaware that the hospitals are “committed to doing everything possible to assure quality treatment.” They can’t really be serious. First of all, how does not charging a patient for a medical error demonstrate a commitment to quality treatment? More importantly, only 9 out of the 28 serious healthcare errors are on the list of errors that the hospitals won’t charge for. Here’s the list of 9:

(1) surgery on wrong body part
(2) surgery on wrong patient
(3) wrong surgical procedure
(4) retention of foreign object not designed to be retained in body
(5) incompatible blood-associated injury
(6) air embolism-associated injury
(7) medication error leading to serious injury or death
(8) artificial insemination/wrong donor
(9) newborn infant discharged to wrong family

My question is - what about the other 17 medical errors?

If you were a patient in the hospital and you asked if you could go home, what would you do if the nurse or doctor said you could leave as long as you sign a discharge form? Would you sign the form and leave? What if you took the time to actually read the form and you discovered that it says you are leaving against medical advice?

Believe it or not, a surprising number of patients get discharged from hospitals against medical advice. This is the first article in a series of articles which discuss the problem. In this article, we’ll focus on what the form typically says.

Above the doctor’s signature are the following statements:
(1) In my best judgment, the patient is alert, oriented, and has the ability to understand his or her current situation.
(2) I have explained to the patient in clear language the nature of his or her medical problem and what the outcome may be if not treated.
(3) The form then has a place for the doctor to indicate what the diagnosis is, and another place for the doctor to write down the possible consequences of non-treatment.

At the bottom of the form is a place for the patient’s signature, and the following language: “I do hereby release and hold harmless the hospital, its employees, and the medical staff of and from any and all liability which may arise from my departure from the hospital against the advice of my physician.

Imagine a case where the doctor writes on the form that a possible consequence of non-treatment is ‘you may die.” Now imagine that the patient leaves anyway, and then dies the same day.

An important issue is the patient’s capacity to really understand the risk of leaving. We’ll talk about this in the next article.

If you or a loved one has a question about a discharge against medical advice, contact a Delaware medical malpractice attorney to learn what your rights are.

A catheter, of course, is a tube that’s placed into a patient’s large vein, usually in the neck, chest, arm, or groin. It’s generally used to draw blood, or to give fluids or medications.

A bloodstream infection occurs when live bacteria (or other germs) travel through the catheter and invade the bloodstream.

I’ve previously written about hospital-acquired infections. These are infections that patients acquire during the course of receiving treatment in a hospital for other conditions. It’s estimated that about 99,000 patients die each year from hospital-acquired infections. According to the Centers For Disease Control, of these 99,000 deaths, approximately 30,000 deaths are caused by catheter-related bloodstream infections (CRBSIs). Studies show that almost 100% of CRBSI’s could be prevented if hospital workers would:
(1) wash their hands with soap;
(2) clean patient's skin with an effective antiseptic;
(3) put sterile drapes over the entire patient;
(4) wear a sterile mask, hat, gown and gloves; and
(5) put a sterile dressing over the catheter site.

To show how outrageous it is that these infections occur, Medicare has classified CRBSIs as “never events” (meaning they’re preventable) and will no longer reimburse hospitals for the costs they incur due to these kinds of infections.

In Delaware, there’s a law called the “Hospital Infections Disclosure Act”. Under this law, a hospital-acquired infection is one that was not present or incubating at the time the patient was admitted to the hospital. Hospitals in Delaware are required to report health-care acquired infections to the Department of Health & Social Services. The purpose behind this law was to make available to the public information about the risk of hospital-acquired infections in each of the following hospitals:
AI duPont Hospital for Children;
BayHealth Medical Center – Kent General Hospital;
BayHealth Medical Center – Milford Memorial Hospital
Beebe Medical Center;
Christiana Care Health System – Christiana Hospital;
Christiana Care Health System – Wilmington Hospital;
Nanticoke Memorial Hospital; and
Saint Francis Hospital

An Advisory Committee that was established under this law decided that the first thing to be reported by these hospitals would be central line associated blood stream infections from the Intensive Care Unit (ICU) in each of Delaware’s hospitals. It’s unfortunate that the reporting requirements are limited to the ICU’s because the risk of hospital acquired infections exists throughout the entire hospital, and reports of infections in ICU’s does not provide the public with the information the law was designed for.

If you or a loved one contracted an infection while in the hospital, contact a Delaware medical malpractice attorney to discuss your rights.

Although I’ve never heard of this before, there’s apparently an old saying among doctors: “do not let your friends and family schedule a surgery in July.” There’s actually a term for this. It’s called the “July Effect” It has to do with the theory that during the month of July, there’s a significant increase in medical negligence in teaching hospitals. Well, a recent study conducted by David Phillips, a professor of Sociology, University of California, San Diego, indicates that there could very well be some truth to this.

The study examined 62.34 million computerized death certificates over a period of 27 years, from 1979 to 2006, and it focused on the 244,388 deaths involving medication errors. The study found that in teaching hospitals, there’s a 10% increase in deaths caused by medication errors during the month of July. As it turns out, July is when thousands of new doctors, fresh out of medical school, begin their residencies at teaching hospitals throughout the country.

The rate of medication errors drops back down in August, presumably because the new doctors are up to speed by then.

What's the message to take from this? If you're going to be admitted to the hospital, you might think twice about being admitted during the month of July.

When there’s been a delay in diagnosing cancer, and the delay is caused by negligent error (failure to adhere to the standard of care), the question frequently comes up when does the 2-year statute of limitations begin? Under Delaware’s Medical Negligence Act, a lawsuit cannot be brought against a health care provider more than 2 years from the date upon which the injury occurred. As I’ve explained in a previous article, if the injury was unknown to the patient and could not have been discovered by the injured person during the 2-year period, the statute gives them 1 additional year within which to sue, even if they don’t discover it during the 3rd year.

Think that’s a bad result? It gets even worse. Imagine a situation where the doctor negligently failed to diagnose cancer, and the damage doesn’t show up until much later, such as when the cancer metastasized. The 2 years begins to run on the date of the misdiagnosis. The Court has come out and said that it may seem harsh that a statute of limitations begins to run on a misdiagnosis from the date of that misdiagnosis when the patient is unaware of the allegedly negligent error causing the injury. At the same time, the Court pointed out that this harshness is lessened by giving the patient 1 additional year to bring a suit in cases where the patient did not have knowledge of the claim until after the two-year period expired.

The Court also makes a point of distinguishing “manifestation of injury” from the definition of “injury.” Under the statute, the injury was the delay in treatment, and that injury occurred on the date that the cancer could have been diagnosed but was not. The metastasis of the cancer is considered to be a manifestation of the damage caused by the injury, i.e., the delay in treatment caused by the failure to diagnose the cancer earlier on

Some like to refer to the term “SOL” as statute of limitations. When I see things like this, I prefer to think of it as “ .... out of luck.”

If you or a family member is the victim of a misdiagnosis, you should consult with a medical malpractice attorney without delay.

As a Delaware medical malpractice attorney, I have seen an incredible number of cases involving injury caused by a misdiagnosis. These cases usually fall within 1 of 3 categories: (1) incorrect diagnosis, failure to diagnose, and (3) delayed diagnosis. Here are some examples.

Restless leg syndrome in children. This is a neurological disorder. It causes unpleasant sensations in the legs and an uncontrollable urge to move when at rest in an effort to relieve these feelings. Most people with RLS have difficulty falling asleep and staying asleep and if left untreated, RLS causes exhaustion and daytime fatigue. Unfortunately, RLS is sometimes misdiagnosed in children as growing pains or attention deficit disorder.

Vocal Chord Dysfunction. This is a sudden, abnormal narrowing of the vocal cords which causes obstruction of the airflow. This results in a noise that sounds like wheezing. Although a simple test is all that’s needed, VCD is often misdiagnosed as asthma.

A family was awarded $4.3 million in a medical malpractice case for their baby. The parents were worried when their newborn baby had large bruises on her body. Told by the doctors not to worry, the parents’ fears worsened when the baby’s skin turned yellow. It turns out that the baby’s liver showed signs of scarring and a blood clot formed in her brain. Although simple tests would have easily led to the discovery of a virus, the doctors ignore the symptoms and did not order the tests. As a result, the child has severe vision problems and permanent cirrhosis of the liver. Parts of her brain were also damaged.

Another jury awarded a woman $5 million because hospital doctors incorrectly diagnosed her with a urinary tract infection and muscle strain and failed to diagnose what was really wrong, a ruptured diaphragm. When the correct diagnosis was finally made, she had to have 1/3 of her stomach had to be removed, and she had to undergo numerous surgeries. A correct interpretation of her X-rays would have led to a correct diagnosis.

A woman who lost the use of one her arms was awarded $8.5 million. She had developed a rash on her arm, and so she went to the doctor. The doctor assumed that she was a drug addict looking for a way to obtain drugs, and so he told her to get an over-the-counter medication for her rash. It turned out that what she had was a flesh eating bacteria.

A jury awarded $3 million to the family of a man who was originally diagnosed with a hiatial hernia after he complained of chest pain and trouble swallowing. The trouble is that although hiatial hernias are supposed to be diagnosed. using an upper GI or endoscopy, his diagnosis was made using a CT scan. What he actually had was a perforated esophagus. Due to the delay in diagnosis, he became weakened and died of cardiac arrest during surgery to repair the tear.

Approximately 100,000 people dies every year because of medical errors. If you or a loved one have been injured due to misdiagnosis, contact a Delaware medical malpractice lawyer to discuss your rights.

In my last article, I explained that the concept of informed consent is more than just signing a piece of paper. It's a communication process. The right to informed consent is based on the policy that every individual has the right to determine what’s done to his own body. Therefore, if a doctor fails to give the patient the appropriate information that’s needed to make an informed decision about whether to have a medical procedure, that’s a violation of the doctor’s duty to obtain informed consent.

Let’s assume the following facts. A patient isn’t properly informed of the risks of a procedure, which means there was a breach of the doctor’s duty. The doctor performed the procedure properly, but the injury occurred anyway due to the normal risks associated with the procedure. Without more, however, these facts are not enough to win a medical malpractice case. There’s one more thing the patient has to prove - that the patient would not have undergone the procedure if he had been properly informed of the risks. The reason for this additional proof is that if a patient would have gone forward with the procedure after being properly informed of the risks, then the fact that the doctor fails to obtain informed consent had nothing to do with the injury. Put another way, the patient has to prove that he would have decided differently if he had been properly informed, and without this proof, there’s no casual connection between the failure to disclose and the injury.

If you believe that you or a loved one has been injured due to medical malpractice, call a Delaware medical malpractice lawyer to discuss your rights.

As a Delaware medical malpractice lawyer, when I file a lawsuit against a doctor or a hospital, one of the defenses that’s raised is “the patient signed an informed consent form.” But when the smoke raised by the defense clears, the fact remains that no matter what the patient agreed to by signing the form, one thing that’s not on the form is the patient’s agreement that the doctor can perform a medical procedure carelessly.

The important thing to remember is that informed consent is more than simply getting a patient to sign a written consent form. Instead, it’s a process of communication between a patient and the doctor that results in the patient understanding several things:
1. The nature and purpose of the proposed procedure or treatment,
2. The risks and benefits of the procedure or treatment,
3. The alternatives to the procedure or treatment,
4. The risks and benefits of not receiving or undergoing the treatment or procedure

During this communication process, the patient should have an opportunity to ask questions. Once the patient has all of this information, he can make an informed decision to proceed with or refuse the treatment or procedure. Many patients feel intimidated when talking to their doctor. Imagine how much better it would be if the doctor did not rush through his explanation, and if he told you that you are participating in a decision, not simply signing a consent form.

If you have a question about a possible medical malpractice case, contact a Delaware medical medical malpractice lawyer.

The rules of fairness don’t apply when it comes to doctors. Let me explain. In Delaware, the law used to be that if you’re injured because a doctor commits malpractice and you had no way of knowing about it, you had 2 years from the time of discovery to file a lawsuit. Here’s an example. A patient had surgery, and the doctor left a hemostat inside the patient’s abdomen. The patient first started to have pain 7 years later, and she filed a lawsuit. The Court said that when an inherently unknowable injury has been suffered by one who is blamelessly ignorant of the act and the injury, and the harmful effect develops gradually over a period of time, the injury is sustained when the harmful effect first manifests itself and becomes physically ascertainable. Therefore, the statute of limitations did not begin to run until the date the patient first experienced pain caused by the unknown foreign object.

The time of discovery rule applies to all kinds of cases and to all individuals whose wrongful conduct injures another person. But the term “all individuals” no longer includes doctors. That’s right. Under today’s laws, if you take the same facts described above, the patient with the hemostat in her abdomen would only have 3 years from the date of the surgery to file a lawsuit. I hear you - how can she file a lawsuit within 3 years if she doesn’t know that the doctor left a foreign object in her body and she doesn’t first have pain until 7 years later? The answer is - she can’t.

The law in Delaware when it comes to suing a doctor for failing to practice good medicine is that you have 2 years if you know about it, and 3 years if you don’t. And if you haven’t discovered it within the 3rd year, you’re out of luck.

The doctors and the insurance companies pushed this through the General Assembly. I wonder how many Delawareans know about it. I want to believe that if this were out in the open, most Delaware residents would contact their legislators and tell them to change the law.

If you or a loved one is injured or killed as a result of medical malpractice, contact the law offices of Charles Snyderman and find out all about your rights and remedies.

In my last article, I discussed the 2-year statute of limitations that applies to medical malpractice cases. I also explained that you can have an additional 90 days beyond the statute under a Notice of Intent to Investigate rule. There are always exceptions to a rule, and the statute of limitations is no exception. As will be shown below, there are certain circumstances where you can have up to 3 years within which to sue for medical malpractice.

Known as the “time of discovery rule,” it applies when the occurrence of the injury is unknown and could not have been discovered by the injured person during the 2 years after the injury. The standard is not whether the injured plaintiff actually discovered that he had been injured. Instead, the court looks to whether a reasonable person should have known that a possible claim for medical malpractice existed.

Applying the time of discovery rule can be extremely tricky. If you or a loved one is injured or killed as a result of medical malpractice, contact the law offices of Charles Snyderman and find out all about your rights and remedies.

If you’ve been injured by the negligence of a doctor or hospital, you have 2 years from the date of the negligent act within which to file a lawsuit in Delaware. A lawsuit that’s filed with the court even 1 day after this 2 year period will be dismissed due to the statute of limitations. However, the law gives you an additional 90 days to file your lawsuit if you carefully follow the rules relating to “Notice of Intent To Investigate.”

“A plaintiff may toll the above statutes of limitations for a period of time up to 90 days from the applicable limitations contained in this section by sending a Notice of Intent to investigate to each potential defendant(s) by certified mail, return receipt requested, at the defendant(s’) regular place of business. The notice shall state the name of the potential defendant(s), the potential plaintiff and give a brief description of the issue being investigated by plaintiff’s counsel. The 90 days shall run from the last day of the applicable statute of limitations contained in this section. The notice shall not be filed with the court. If suit is filed after the applicable statute of limitations in this section, but before the 90 day period in this section expires, a copy of the notice shall be attached to the complaint to prove compliance with the statute of limitations.”

To show you how strictly you must follow this procedure, a medical malpractice lawsuit was thrown out by the Delaware Supreme Court because the plaintiff sent his Notice of Intent by federal express instead of by certified mail, return receipt requested.

If you or a loved one is injured or killed as a result of medical malpractice, contact the law offices of Charles Snyderman and find out all about your rights and remedies.

As a Delaware medical malpractice lawyer, I've become more and more involved with clients who acquired MRSA in the hospital. Now comes a report that a 77 year old woman who was in the Abington Memorial Hospital was a victim of contracting MRSA while in the hospital. This poor woman had to undergo 20 surgeries as a result, and she ended up dying due to the infection. The hospital's chief of staff has been quoted as saying that this infection was brought into this woman's room on the hands of someone in the hospital.

The incredible fact is that study after study shows that much of the infections acquired in hospitals can be prevented if doctors and other hospital workers washed their hands before and after coming into contact with a patient.

How are they supposed to wash their hands? Well, according to the Centers For Disease Control and Prevention:
When washing hands with soap and water:
•Wet your hands with clean running water and apply soap. Use warm water if it is available.
•Rub hands together to make a lather and scrub all surfaces.
•Continue rubbing hands for 15-20 seconds. Need a timer? Imagine singing "Happy Birthday" twice through to a friend.
•Rinse hands well under running water.
•Dry your hands using a paper towel or air dryer. If possible, use your paper towel to turn off the faucet.
•Always use soap and water if your hands are visibly dirty.

Here's the bottom line. If you're the patient or somebody who's with the patient when a doctor or other staff person enters the room, watch them. If they don't wash their hands, insist that they do so.

For more information, check out:
MRSA Is Preventable
Infections In Hospitals
MRSA- Too Many People Get Sick In Hospitals
HA-MRSA Is A Growing Danger

As a Delaware medical malpractice lawyer, I have strong feelings when relatively healthy clients of mine go into the hospital for routine surgery, and get real sick because of a lapse in infection control. This is a series of articles dealing with hospital acquired MRSA.

A new study reported in the Archives of Internal Medicine shows that sepsis and pneumonia, which are caused by hospital-acquired infections like MRSA, killed 48,000 people in 2006. This is said to be the largest study to date. It was based on 69 million records of patients who were discharged from hospitals in the U.S.

Sepsis is a serious condition caused by a bacterial infection. The body’s immune system goes into overdrive, and blood clots are formed which prevent blood from reaching vital organs. This in turn leads to organ failure, which is so life threatening that 1/3 of the people who get sepsis die from it.

Pneumonia can set in if a disease-causing microbe gets into the lungs and respiratory tract. 11% of the people who develop pneumonia in the hospital die as a result.

According to one of the authors of this study, “Infections that are acquired during the course of a hospital stay cost the United States a staggering amount in terms of lives lost and health care costs.”

For more information, check out:
MRSA Is Preventable
Infections In Hospitals
MRSA- Too Many People Get Sick In Hospitals

As a Delaware medical malpractice attorney, I can never get used to the words "sometimes, bad things happen in hospitals." The reason these words bother me so much is that I only hear them when the bad thing that happened was preventable. One of these preventable bad things is infection.

Researchers at Duke University Medical Center recently announced the results of a large study about infections from surgery. According to the lead author of the study:

"We found that patients with surgical site infections due to MRSA were 35 times more likely to be readmitted and seven times more likely to die within 90 days compared to uninfected surgical patients."

"These patients also required more than three weeks of additional hospitalization and accrued more than $60,000 in additional charges."

MRSA infection is caused by Staphylococcus aureus bacteria, often called "staph." MRSA infections that occur in hospitals or other health care settings such as nursing homes and dialysis centers is commonly known as HA-MRSA, which stands for health care-associated MRSA.

MRSA usually starts as small red bumps that looks like pimples, boils or spider bites. These can quickly turn into deep, painful abscesses that require surgical draining. In some cases, the bacteria remain confined to the skin, but in other cases they can penetrate into the body, causing potentially life-threatening infections in bones, joints, surgical wounds, the bloodstream, heart valves and lungs.

As a Delaware medical malpractice lawyer, I'm currently representing a woman who contracted MRSA while she was in a local hospital. This preventable infection is all too common. According to the U.S. Centers for Disease Control and Prevention, more than 2 million hospital infections occur each year, and about 90,000 people die each year from infections they got while in the hospital.

This topic was the subject of an interesting book review that appeared in the NY Times.

According to this review, in order to prevent a patient from getting an infection when a catheter is inserted in the vein, there are five things that doctors should:
(1) wash hands with soap
(2) clean the patient’s skin with antiseptic
(3) cover the patient’s entire body with sterile drapes
(4) wear a mask, hat, sterile gown and gloves
(5) put a sterile dressing over the insertion site after the line is in

Incredibly, in some hospitals, doctors skip one of these steps. The failure to follow any one of these steps is a departure from the standard of care, and constitutes medical malpractice.

As a Delaware medical malpractice attorney, I find that patients are becoming more and more angry when they go into the hospital with one problem, and come down with a new problem during their hospital stay. I recently wrote about hospital acquired MRSA. Well, another serious condition that patients get while they’re in the hospital is bedsores, also called pressure sores, decubitus ulcers, and pressure ulcers. And just like MRSA, pressure sores are preventable.

The problem has been getting worse, not better. In fact, an article published in the New York Times in December of 2008 called hospital acquired bedsores an epidemic. This article, entitled “Hospitals Face a New Epidemic: Bedsores,” reported that the number of hospital patients with bedsores has risen dramatically over a 14-year period, leading to longer, more expensive hospital stays.

What causes pressure sores? They occur when the blood supply to the skin is cut off for more than two to three hours. When the blood supply is cut off, the skin dies. A bedsore starts out as a red, painful area, and eventually turns purple. If it’s not treated, a bedsore can lead to serious infection and other life-threatening complications, such as blood poisoning.

So what causes the blood supply to the skin to get cut off? It’s from staying in one position for too long. There are areas in your body where the bone is close to your skin, such as your ankles, back, buttocks, elbows, heels and hips. If you’re lying in bed or sitting in a wheelchair for a long time, or if for some other reason you’re unable to change your position, this puts pressure on the skin, and the blood supply is cut off.

Bedsores can be prevented by inspecting the skin for areas of redness. Other ways of preventing bed sores include: (1) changing position, (2) using pillows and other soft padding in wheelchairs and beds to reduce pressure and (3) keeping the skin clean and dry.

Severe bedsores are absolutely preventable, and a hospital or nursing home that allows a patient to develop bedsores should be held accountable.

As a Delaware medical malpractice attorney, I believe it's only a matter of time before a patient in Delaware sues a hospital because he came down with a MRSA infection. These cases are showing up around the country. For example, a Dallas jury has awarded $17.5 million in damages to a man who had to have both of his arms and both of his legs amputated because of a hospital-acquired MRSA infection. The sad thing is that MRSA infections are preventable if proper care is taken. Even worse is the fact that most MRSA infections occur in hospitals or other health care settings, such as nursing homes and dialysis centers. Here’s an excerpt from a Wall Street Journal article which appeared least month:

“Too many patients get sick in the very places that are supposed to heal them. The facts are frightening: As many as one in 10 patients hospitalized in the U.S. will come down with an infection - often due to the very care that is supposed to be restoring health. These infections afflict nearly two million patients a year, cause close to 100,000 deaths and cost up to $6.5 billion.”

Actually, in the U.S., more people die each year from MRSA than from AIDS.

MRSA symptoms can range from mild infections on the skin which cause pimples or boils, to more serious skin infections and infections of surgical wounds, the bloodstream, the lungs, or the urinary tract. It's tougher to treat than most strains of staph because it's resistant to commonly used antibiotics.

If you or a family member came down with a MRSA infection as a result of a hospital stay, you should contact a Delaware attorney to find out whether you are entitled to receive money damages to pay for such things as medical bills, nursing care, loss of income, and pain and suffering.

As a Delaware medical malpractice lawyer, I stay up to date on malpractice trials around the country. Earlier this month in Illinois, the family of a 42 year old woman who died from blood clots after having outpatient knee surgery was recently awarded more than $6 million by a jury. The woman had been having knee pain, but because it was getting worse, her family doctor referred her to an orthopedic surgeon for an evaluation. At first, the surgeon gave her an injection for the pain, and some physical therapy. The surgeon then ordered an MRI, after which he decided to perform arthroscopic surgery which took less than an hour. She was taken home by her daughter,, but the next day she was found dead on her on the bathroom floor.

Her death was caused a pulmonary embolism that occurred when deep venous thromboids that had formed at the site of the surgery traveled to her lung. The jury found that the surgeon ignored several risk factors that should have indicated that blood clotting could be a problem: the patient was somewhat obese and was taking birth control pills; she also had a personal history of asthma and hypertension and a family history of heart disease and stroke.

Had the surgeon considered these risk factors, he could have taken precautions after the surgery that should have prevented the blood clots from forming.

Interestingly, the family's lawyer had demanded $2 million to settle the case, but the insurnace company refused to settle.

Blood clots in the large veins (deep venous thrombosis) is common after othopedic surgery. When a patient is considered at risk for blood clots, all the surgeon has to do is put the patient on blood thinning medication.

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.

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.

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.

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.

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.