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Welcoming a child into the world is a happy time for a family but, even with the best possible care, problems can arise. When a birth injury occurs due to a medical malpractice, the consequences can be devastating to the child and the family. A recent study conducted by the federal Centers for Disease Control and Prevention found that in the years 1999-2009, birth injury and complications including kidney failure, respiratory distress, and cardiac arrest related to childbirth increased by 75%. Even the days immediately following childbirth proved less safe, with severe complications more than doubling during the same time period.

Demographic changes can account for some of the increase in complications. Many women are delaying parenthood until their late 30s and early 40s and experiencing issues that go along with advanced maternal age. The steady rise in obesity in the U.S. means that more expectant mothers are overweight, so their health may be compromised even before their pregnancies. Chronic conditions, such as diabetes or liver disease, can also put women at higher risk for complications throughout pregnancy. However, the most common cause of death after childbirth, severe bleeding, or hemorrhage, can affect even healthy women with no history of problems during pregnancy.

Danielle Dargatz, a 25-year-old Milwaukee woman, had experienced a healthy pregnancy and wasn’t considered high-risk for complications when she delivered her daughter in 2012. Unfortunately, following the birth she began hemorrhaging and her doctor was unable to stop the bleeding with medication and other traditional measures. A surgical team was called in to perform an emergency hysterectomy. Ms. Dargatz’s story has a happy ending, but some women and their children aren’t as lucky.

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Very few of us have jobs in which there are no distractions. When distractions occur, they often impact our ability to perform our job effectively. According to a recent study, doctors are also not immune to the adverse impacts that distractions have on job performance. Specifically, the study found that distractions during surgery significantly increased the rate of surgical errors by residents.

As reported in the Archives of Surgery, participants of the study consisted of 18 general surgery residents from Oregon Health & Science University of Portland. Each of the 18 general surgery residents was required to perform a simulated laparoscopic cholecystectomy, which involves removing the gallbladder, with and without distractions. The commonly cited distractions used during surgery were expected movements seen by the observer, a ringing cell phone answered by the observer, conversations between the observer and a third party unrelated to surgery, noise from a dropped metal tray, and a question about a topic unrelated to the surgery.

Out of 18 surgeries, distracted residents made eight medical mistakes. Residents who were not distracted made only one surgical error out of 18 operations. The authors of the study concluded that realistic operating room distractions and interruptions greatly increased the likelihood of surgical mistakes–at least for novice surgeons. This study is important because it shows unnecessary distractions and interruptions significantly increase the rate of adverse patient outcomes and, by extension, the rate of avoidable medical malpractice lawsuits.

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Many of us have seen a handwritten prescription by a doctor and wondered how anyone can read the writing. In most instances, the pharmacist is able to decipher the writing or they will call the doctor’s office for clarification. However, poor penmanship by doctors can lead to medical malpractice, including medication errors. In fact, there have been many medical malpractice lawsuits where a patient died as a result of a medication error from a doctor’s poor penmanship.

A well-known example of how a doctor’s poor handwriting can lead to tragedy occurred in Texas over a decade ago. Because of a doctor’s poor penmanship, a pharmacist filled Pendil (a blood pressure medication) rather than Isordil (a medication for heart pain). As a result, a Texas wife lost her husband when he ingested the wrong medication, suffered a heart attack, and died. After she filed a medical malpractice suit, the jury determined the doctor’s poor penmanship caused the medication error which, ultimately, lead to her husband’s death. Thus, the jury’s sole basis for finding the doctor negligent was his poor handwriting.

Poor penmanship by doctors is an unfortunate problem that has not gone unnoticed by the medical community. Indeed, the American Medical Association (AMA) has warned doctors about their penmanship and urged them to improve this skill. Over the last decades, there have been multiple AMA policies urging doctors to improve their handwriting. These policies have also advised doctors to also include the “purpose” of the prescription “to avoid confusion on the part of either the pharmacist or patients.” At Cedars Sinai in Los Angeles, doctors are encouraged to take handwriting courses to improve their penmanship. At Indiana University, the medical school finds penmanship so important they include penmanship training as part of their curriculum medical students.

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As with any cancer diagnosis, patients who are told they have breast cancer are frightened and need information. The best person to provide this information is their doctor. The patient’s doctor must educate the patient about their condition and available treatment options including surgery. After all, informed consent must be more than signature on a consent form the day of surgery. However, according to a recent study published in the Journal of the American College of Surgeons, half of early-stage breast cancer survivors lacked basic information about their disease and treatment options. As a result, the study concluded many doctors fail to provide their breast cancer patients valuable information necessary for them to make an informed decision about their treatment options. As a medical malpractice lawyer, I have handled my share of informed consent cases. However, I was even surprised by the results of this study showing that many doctors, perhaps close to half, fail to provide their patients critical information they need to make an informed decision about their breast cancer treatment options.

Lead by lead researcher, Dr. Clara N. Lee of the University of North Carolina School of Medicine, Chapel Hill, the retrospective study evaluated the decision making process of early stage breast cancer patients regarding surgical treatment. Surveys were mailed out to adult women with a history of early-stage invasive breast cancer treated at one of four academic medical centers: The Dana-Farber Cancer Institute, Boston; Massachusetts General Hospital, Boston; University of California, San Francisco; and University of North Carolina, Chapel Hill. Based on answers to basic questions about their disease and treatment options, patients answered only half their questions right (52%), demonstrating these patients had a large knowledge gap regarding their disease and treatment choices.

Because study data was collected an average of 2 ½ years after the patient’s surgical procedure, researchers recognized that some patients are likely to forget some information over time. However, the information that was forgotten was simply too basic, according to researchers, to be simply forgotten. For example, only half of breast cancer survivors from the study knew the survival rate was the same for breast-conservation therapy and mastectomy. Likewise, breast cancer survivors who underwent a partial mastectomy routinely did not know the local recurrence rates (compared to women who had a mastectomy).

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Patients are increasingly turning to Ambulatory Surgical Centers (or ASCs) for surgical procedures performed outside of the traditional hospital setting. There are several benefits to ASCs. They are generally less expensive than hospital surgery’s, permit patients to go home the same day of surgery, and are often more luxurious than hospital. Today, 65% of all surgeries are now outpatient making ASCs a popular alternative to hospital surgeries. However, ASCs do have some drawbacks. One significant shortcoming to ASC is their ability to manage serious anesthesia errors and complications which are generally more dangerous outside of a hospital.

With virtually all same-day surgery procedures, the most significant risk is from the anesthesia. Although there are many forms of anesthesia, general anesthesia poses the greatest risk of serious injury or wrongful death. Indeed, most medical malpractice lawsuits stemming from anesthesia error involve general anesthesia. Common general anesthesia complications are from aspiration, changes in vital signs, and adverse reactions to anesthetic.

Regarding adverse anesthetic reactions, the most significant and potentially fatal condition that can develop is called malignant hyperthermia (or MH). This occurs when a patient’s body temperature rapidly increases and causes muscle rigidity. With proper management, many patients will experience a full recovery. Without proper management, patients can and do die from MH.

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According to Nolo, an online encyclopedia of law containing a wealth of current articles on various malpractice topics, expert witness testimony is essential to most medical malpractice court cases. In many states it is required that a person filing a malpractice lawsuit obtain a medical expert’ opinion before they can file their claim in court.

Nolo explains that expert witness testimony plays an instrumental role in malpractice cases. In Illinois, a Chicago medical malpractice lawyer is usually required to attach an affidavit and report to the complaint verifying the a qualified expert has reviewed the case and feels it is meritorious. Without an expert the judge will likely dismiss the case due to the fact that the jury will need an expert witness to help them to better understand the complicated facts regarding medical malpractice.

According to Nolo it is a medical expert’ job to address the following two questions:

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According to a recent article in the New York Times, more and more hospitals across the country are banning pictures and videos from being taken during birth in the delivery room. Some hospitals are even calling for all cell phones to be turned off and out of sight during deliveries. Hospitals that enforce these bans only allow photos to be taken after the baby has been delivered and permission is granted by hospital staff.

The article discusses hospital’ claims that they are concerned about the health and safety of the baby and mother and that they are also concerned about protecting the privacy of the medical staff in implementing these restrictions. According to the article, thanks to Facebook and Youtube more and more doctors and hospital staff members are raising concerns over their own privacy.

However, the media has pointed out that many of these photography and video bans are being enforced to protect hospitals from malpractice lawsuits. Their concerns come against a backdrop of medical malpractice suits in which video plays a key role. One of the most prominent cases at the forefront of this movement to ban delivery room photos and videos stems from a case settled in 2007 that involved a baby that was born at the University of Illinois Hospital and that suffered from shoulder complications and permanent injury. The Chicago medical malpractice lawyer representing the family used the video in a malpractice lawsuit that was taken by the father in the delivery room. This video allegedly showed the nurse-midwife using excessive force during delivery and it led to a payment to the family of $2.3 million dollars.

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The insurance lobby, medical groups, and conservative politicians are all increasing calls for a federal cap on non-economic damages in medical malpractice cases. These groups argue that non-economic damages, those which compensate for pain and suffering and loss of a normal life, are directly causing the dramatic rise in medical malpractice insurance rates. If a federal cap on these damages is passed, individual states would be preempted from deciding this issue on their own.

Setting aside whether an arbitrary cap on damages in all medical malpractice cases is fair (regardless of patient’ injury or the health professional’ misconduct), do caps actually work? That is, do caps on non-economic damages in medical malpractice achieve the goal of reducing malpractice insurance premiums or is there another solution? Based on the results in California, Texas, and other states, as well an independent study conducted by Duke University, the answer seems to be no.

Malpractice Premiums in States with Caps on Non-Economic Damages

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