Medical Malpractice

November 3, 2020

Does Daylight Savings Time Increase Medical Errors?

by Law Offices of Thomas L. Gallivan, PLLC

A new study published in the Journal of General Internal Medicine finds that the springtime transition to Daylight Savings Time may result in an increase in medical errors made by healthcare orders. The study was published in August 2020 by a group of authors including Branu Prakash Kolla of the Department of Psychiatry and Psychology at the Mayo Clinic; Brandon J. Coombes of the Division of Bioinformatics at the Mayo Clinic; Timothy I. Morgenthaler of the Center for Sleep Medicine at the Mayo Clinic; and Meghna P. Mansukhani of the Center for Sleep Medicine at the Mayo Clinic.

According to the Journal of General Internal Medicine, the observational study’s objective was to examine “the change in reported patient safety-related incidents (SRIs), in the week following the transition into and out of DST over a period of 8 years.” It specifically observed incidents at “A US-based large healthcare organization” with locations in various states around the country. It measured “Voluntarily reported SRIs that occurred 7 days prior to and following the spring and fall time changes for years 2010–2017,” and separately identified incidents that were likely to have resulted from human error. Changes in SRI numbers “from the week before and after the time change (either spring or fall) were modeled using a negative binomial mixed model with a random effect to correct for non-independent observations in consecutive weeks.” Continue reading

September 28, 2020

Cuomo Limits New York Malpractice Immunity Law

by Law Offices of Thomas L. Gallivan, PLLC

Last month New York Governor Andrew Cuomo signed a bill placing restrictions on the medical malpractice immunity he granted New York hospitals and nursing home facilities at the height of the Covid-19 pandemic, according to a report by Newsday.

The bill, signed in August, gave hospitals and nursing homes immunity in malpractice claims involving Covid-19, whereas a March executive order and April law granted them immunity from “all but the most egregious cases over gross negligence or criminal acts.”

According to Newsday, the new immunity legislation followed lobbying by the Trial Lawyers Association, a group representing plaintiffs’ attorneys who represent alleged victims of medical malpractice. The TLA argued that the broader immunity legislation gave hospitals too much protection while failing to help less powerful victims of malpractice. Per a July Newsday report, “The defense lawyers’ group said Cuomo had silenced the voice of ‘the most vulnerable New Yorkers — Latinx workers, Black moms-to-be and the elderly — who are victims of medical mistakes, negligence and substandard care.’” In response, the Greater New York Hospital Association, which represents hospitals, said “the bill would harm health care facilities in the event of a resurgence of COVID-19, which could impact treatment of non-COVID cases.”

March 23, 2020

Arbitration Clauses: Why Suing Large Companies is Difficult

by Law Offices of Thomas L. Gallivan, PLLC

A recent study found that 81 of the top 100 companies in America have clauses in their customer agreements that force legal claims to air their legal grievances in arbitration – and typically only after signing a non-disclosure agreement and waiving their right to appeal. In May 2019, JPMorgan Chase joined the consumer-unfriendly trend when it informed all of its credit card customers that they could no longer sue the company in court. The bank previously mandated arbitration for its bank account and insurance customers. Imre Szalai, a professor of social justice at Loyola University, said the move by JPMorgan Chase is part of a larger trend denying consumers the right to litigate their legal claims in court. “The ability to access the courthouse is disappearing for American consumers, Szalai said, citing his own research on the subject of mandatory arbitration clauses.

Mandatory arbitration clauses are often included in the “Terms of Service” that many consumers blindly sign when signing up with a company. This can harm the consumer because arbitration severely limits the rights of consumers. Typically, arbitration allows more limited evidence to be presented, can cap the amount of damages a person is awarded, and usually requires both parties to sign non-disclosure agreements and give up their right to appeal any decision. Therefore, companies with mandatory arbitration clauses benefit from not only having their legal matters resolved quicker but they can also avoid any public relations fiasco by keeping customer’s complaints quiet.

March 18, 2020

White Plains Center for Nursing Care Cited for Unnecessary Drugs

by Law Offices of Thomas L. Gallivan, PLLC

White Plains Center for Nursing Care received 51 citations for violations of public health laws between 2015 and 2019, according to New York State Department of Health records accessed on November 4, 2019. The White Plains nursing home’s citations, which include 19 more than the statewide average, resulted from five inspections by the state inspectors. The violations described in these citations include the following:

1. The nursing home failed to ensure that residents’ drug regimens were free from unnecessary drugs. Section 483.45 of the Federal Code requires that nursing homes keep “each resident’s drug regimen… free from unnecessary drugs,” defining as unnecessary any drug that is used in an excessive dose, for an excessive duration, without proper monitoring or indications, and/or in the presence of adverse consequences. A March 2019 citation found that White Plains Center for Nursing Care did not ensure that one of five residents reviewed was properly monitored for pain and the effectiveness of pain medication he was receiving. An inspector specifically found that the resident “was receiving Opioid medication on 5 out of 7 days during the assessment period,” but that there was no evidence the resident’s pain level was evaluated before medication was provided. A review of records by the Department of Health found further that the records did not prompt medical staff to document residents’ pain levels.

March 17, 2020

161,000 Americans Die Each Year from Preventable Medical Errors

by Law Offices of Thomas L. Gallivan, PLLC

An estimated 161,000 Americans die each year because of preventable medical errors, according to a new study by Johns Hopkins University. The study, which was published by Leapfrog Group, a nonprofit which ranks hospital safety, shows that fatalities by preventable medical errors are trending downward. Three years ago, the number of preventable deaths stood at 206,000.

“We are cautiously optimistic we are going to see real change and that is good news from this report,” Leah Binder, President and CEO of the Leapfrog Group, told Modern Healthcare. “But 161,000 is still a lot of people it’s a terrible problem. We have a long way to go.” Binder continued to explain that the number of preventable deaths is likely an underestimate since the study only looked at 16 safety categories and the “subset of each safety issue” in each category. According to Leapfrog Group, 15 of the 16 measures used to judge patient safety are the same used by the Centers for Medicaid and Medicare Services (CMS) to judge nursing home quality.

March 13, 2020

The Knolls Cited for Expired Medication, Unsanitary Food Storage

by Law Offices of Thomas L. Gallivan, PLLC

Between 2015 and 2019, The Knolls, a nursing home in Valhalla, New York, received 35 citations for violations of New York and federal health laws. That figure is three more than the statewide average of 32 citations, and resulted from a total of four inspections by the New York State Department of Health. According to the Long Term Care Community Coalition, The Knolls is considered a “Special Focus Facility Candidate,” meaning that it has been identified by the Centers for Medicare & Medicaid Services as having a record of poor care that may merit inclusion in CMS’s limited list of facilities that receive enhanced oversight. The violations described in the Department of Health citations, which were accessed on November 4, 2019, include the following:

1. The nursing home did not properly store and label drugs and biologicals. Section 483.45 of the Federal Code states that nursing homes must label drugs and biologicals “accordance with currently accepted professional principles, and include the appropriate accessory and cautionary instructions, and the expiration date.” According to a July 2018 citation, The Knolls kept in storage an emergency box containing “2 vials of medication and 3 normal saline intravenous (IV) flush syringes [that] had past due expiration dates.” A nurse manager told a Department of Health inspector that emergency boxes “are supposed to be checked every night,” and that if materials are expired, a nurse is supposed to send a request to the facility’s pharmacy for replacement. Per a pharmacy consultant interviewed by the Department of Health, the medications in question “should have been removed.”

March 7, 2020

Tarrytown Hall Care Center Cited for Abuse

by Law Offices of Thomas L. Gallivan, PLLC

Tarrytown Hall Care Center in Tarrytown, New York has received 26 citations for violations of public health law between 2015 and 2019, according to records provided by the New York State Department of Health and accessed on November 4, 2019. The citations resulted from six inspections by the Department, the public entity responsible for enforcing safety and health standards in New York nursing home facilities. The violations described in these citations include the following:

1. The nursing home failed to ensure its residents’ freedom from abuse and neglect. Nursing home facilities are required by Section 483.12 of the Federal Code to respect their residents’ right “to be free from abuse, neglect, misappropriation of personal property, and exploitation.” A January 2019 citation described Tarrytown Hall Care Center’s failure to ensure one resident’s right to be free from abuse in a situation where, after that resident struck a Certified Nursing Assistant, that assistant “responded by tossing liquid from a cup he was holding in his hand directly towards [the resident’s] upper body and face area,” then pushing that resident’s wheelchair into a hallway, where another assistant had to intervene to stop the rolling wheelchair. The citation notes that the resident in question was “severely cognitively impaired” and dependent on a wheelchair for mobility and personal assistance to move around the facility.

January 16, 2020

New Report Describes ‘Extremely Alarming’ Rates of Maternal Mortality

by Law Offices of Thomas L. Gallivan, PLLC

The United States stands alone in the developed world for its high rate of maternal deaths. According to the Centers for Disease Control, approximately 700 women die each year during childbirth. According to NBC News, the number of maternal deaths is even more disturbing because they seem to be isolated to racial minorities, particularly black women. In New York, which has been fruitlessly trying to reduce its maternal mortality rate, the number of deaths is still increasing and the race gap is growing larger each year. Last year, a black woman was 12 percent more likely to die during child birth in New York.

“It’s extremely alarming,” Dr. Taraneh Shirazian, an NYU professor and author of a recent study on the subject, told NBC News. “We actually learned that most of the women who died had received no prenatal care. These women who are under-served in the city are not seeing their physicians.”

The study analyzed New York’s maternal death rate over the last two decades and focused on the effect of several initiatives – some at the hospital level and some at a government level – to reduce the rate. “What we found was that hospitals are doing some programs to reduce maternal mortality, and there are programs being done in the community as well, but they’re not linked up.” According to Dr. Shirazian, this lack of coordination means minority mothers and low-income mothers are unable to reap the “maximum benefits” of the program.

January 8, 2020

Poor Patient Outcomes Associated with Visiting Doctor in Afternoon

by Law Offices of Thomas L. Gallivan, PLLC

A new study suggests that doctors are more likely to skip screenings and otherwise make mistakes with patients later in the day. According to a JAMA Network Open study, doctors ordered fewer breast and colon cancer screenings for patients with an afternoon appointment – despite the fact that all patients were due for a screening. According to the study, the doctor was most likely to order a medical screening for his patient with an 8 AM appointment. By 4 PM, the likelihood that the doctor would order screens for their patient had dropped by 10 to 15 percent.

Other studies have confirmed that poorer outcomes for patients are more likely in the afternoon. A 2014 study, cited by The New York Times, found that doctors were more likely to dole out unnecessary antibiotic prescriptions in the afternoon. In fact, the likelihood of an unnecessary antibiotic is 26 times higher for a 4 PM appointment compared to an 8 AM appointment. Other studies located by the New York Times found that patients were less likely to receive the flu vaccine and more likely to receive prescription opioids for back pain. Even the amount of hand washing by doctors fell during the afternoon hours.

January 6, 2020

Burned Out Doctors Endanger their Patients

by Law Offices of Thomas L. Gallivan, PLLC

With more doctors putting in long hours, the profession now carries one of the highest risks of burnout. According to the AMA, physicians suffer from “burnout” roughly twice the rate for the general population. The blame, according to doctors, lies in the corporatization of healthcare which has rapidly accelerated over the last decade. Doctors say that corporate healthcare chains squeeze as many patients as possible onto each doctor attempting to maximize their revenue. This leaves doctors without adequate time to diagnose a patient, record their medical information, and deal with their health insurance companies. In a New York Times article, the author states that doctors work nights and weekends to adequately care for all their patients at “a high personal cost.”

Regulations also eat up an unnecessary amount of time, according to doctors. The E.M.R. or Electronic Medical Record appears especially burdensome. Data shows that primary care physicians are now spending two hours typing into the E.M.R. for each hour spent with their patients. The time spent on the E.M.R. does not even include the compliance workshops and continued medical education required of all doctors.