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What you need to know about medical malpractice

BY Ann Latner

The mere phrase “malpractice lawsuit” has struck fear in the hearts of many healthcare providers, and for good reason. A study published in the New England Journal of Medicine in 2011 estimated that by age 65 years, most physicians (75% in low-risk specialties and 99% in high-risk specialties) will have faced a malpractice claim. While the numbers are lower for other healthcare providers — including nurse practitioners, physician assistants and pharmacists — essentially all healthcare providers are at risk of being sued for medical malpractice. In the case of non-physician practitioners, it is more likely that the practitioner’s employer (i.e., hospital or pharmacy) will be sued, rather than the practitioner individually because the employer is generally regarded as the one with “deep pockets.” Regardless, if either you or your employer is being sued based on something you did — or didn’t do — it is essential to understand the basic elements of medical malpractice.

Medical malpractice is part of the tort of negligence and can take many forms, including failure to diagnose, misdiagnosis, improper medication or dosage, poor follow-up, failure to recognize symptoms, unnecessary surgery and misreading laboratory results. In order for a medical malpractice case to succeed, there are four essential elements that must be proven. If these four elements are not proven, then a healthcare practitioner cannot be found liable.

The elements of medical malpractice

  • Duty: The first element that must be shown is that the practitioner owed a professional duty to the patient. This is clearly the case in a situation where a patient is being treated by his/her healthcare practitioner, or when a patient is seeking advice or picking up medication from his/her pharmacist.
  • Breach: The second element is breach of the duty owed to the patient, meaning that the practitioner did not provide to the standard of care that was required.
  • Injury: The third required element is that the breach of duty caused an injury.
  • Damages: The final required element for medical malpractice is that the injury resulted in damages. Damages can be either economic (e.g., unable to work, medical bills) or non-economic (e.g., pain and suffering, loss of consortium).

What is and isn’t medical malpractice?
Now that we understand the four required elements to prove a medical malpractice case, let’s look at a couple of scenarios and decide if they do or do not amount to medical malpractice.

  • A surgeon removes the wrong kidney of a patient. Malpractice? Yes. The surgeon owed and breached a duty of care to the patient, injury and damage to the patient resulted from the breach.
  • Pharmacist gives patient the wrong medication, but patient realizes this before she takes it. Malpractice? No. A mistake was made, yes; however, no injury or damage resulted from it.
  • Nurse is supposed to give a patient epinephrine via injection, but instead puts it in the patient’s IV. Nurse realizes mistake immediately and notifies supervisors. Malpractice? It depends on whether the patient suffered injury. In this particular case, the patient experienced heart palpitations and anxiety, but suffered no actual damages, so the nurse was found not liable. Had the patient suffered actual harm, the outcome might have been different.
  • A sponge is left inside a patient after surgery, and the patient needs another surgery to remove it after the fact. Malpractice? Yes. The operating room staff had a duty to the patient that was breached. The patient suffered harm and had to have an unnecessary surgery to correct the situation.

As you can see, a mere mistake does not necessarily mean that medical malpractice occurred. Unless all four of the elements can be proven — including injury and damages — the case will not stand up in court.


Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.

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NPMA urges precautions against ticks, mosquitos

BY Michael Johnsen

FAIRFAX, Va. — With rising temperatures and an increase in rainfall throughout much of the country comes a predicted increase in mosquito and tick populations, which means a heightened threat of the transmission of such common diseases as Lyme disease, as well as such viruses as West Nile and many others.

Lyme disease and West Nile virus infect thousands of Americans each year and are a growing concern, especially in light of the Centers for Disease Control and Prevention’s 2013 news that Lyme disease is ten times more common than previously reported.

Other lesser-known, vector-borne diseases — such as the Heartland virus, babesiosis and dengue fever — are found around the country in smaller numbers, with the highest numbers of cases reported during the warmer summer months. These diseases are transmitted when a mosquito or tick bites and feeds on the blood of its host.

According to data compiled by the CDC, cases of locally acquired dengue fever have been on the rise in Texas and Florida, where state health officials documented two cases of human infection in both states in 2013.

According to the NPMA, the top five ways to protect against mosquito- and tick-borne illnesses include conducting a daily check for ticks, protecting skin with extra clothing or insect repellent, inspecting property, protecting pets, and avoiding dusk and dawn.

To read about climate change and its effects on allergies, click here.

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Climate change takes toll on patient health

Allergy season is at full strength, and it already seems to be one for the record books. Many patients are turning to their pharmacist to ask about the symptoms they are experiencing and why they feel so much worse than in years past. The answer — simple to some and hard to believe for others — is climate change. As carbon dioxide and other greenhouse gases continue to contribute to the changing of our climate, seasonal allergies, asthma, poison ivy, poison oak and even insect stings have increased in the number of people affected and the intensity of their reaction.

Evidence from weather stations, satellites, ocean buoys, tide gauges and many other data sources all confirm that the global climate is changing.

According to the National Wildlife Federation’s report in 2010, “Extreme Allergies and Global Warming,” carbon dioxide levels in the atmosphere have increased by about 40% since the 1700s, due largely to the clearing of forests and the burning of coal, oil and gas. And according to the U.S. National Climate Assessment, methane and nitrous oxide emissions from agriculture and other human activities add to the atmospheric burden of heat-trapping gases.

The atmospheric increases in carbon dioxide are directly related to the warmer temperatures, earlier spring season, longer growth season and extreme weather. The “polar vortex” of last winter prolonged the blooming of trees in many areas, causing an overlap of tree pollen with grass pollen. This overlap, in turn, has created an intense immunologic response from allergy sufferers. Ragweed pollen loads also are increasing and becoming more potent, only adding to the problem.

The geographic regions where many plants and trees have traditionally grown continues to expand further north as average temperatures rise and extreme weather expands the reach of tree and other types of pollen. For instance, the habitat suitable for highly allergenic oak and hickory tree species may expand into the habitat where much less allergenic pine, spruce and fir trees currently dominate. The more intense thunderstorms and stronger winds expected with climate change also could increase the spread of tree and other types of pollen.

The risk of asthma attacks also is likely to go up if global warming increases these allergens. The heavy winds and rain of severe thunderstorms can cause pollen grains to burst and release smaller allergen particles that can reach the small airways of the lung. Air pollution, another cause of global warming, also increases the risk and severity of asthma attacks.

Finally, allergic contact dermatitis from poison ivy and poison oak, as well as insect bites or stings also is increasing. Poison ivy plants exposed to increased levels of carbon dioxide produce a more allergenic form of urushiol, the offending chemical that causes itching, leading to a more intense reaction. The ivy vines also are growing faster in response to the carbon dioxide, leading to more cases of poison ivy than ever before. Research shows that insect stings in Alaska have increased in recent years. Higher average winter temperatures and a decrease in the frequency and intensity of cold snaps in the region allow more yellow jacket queens to survive over the winter, leading to more stings.

As patients turn to their pharmacist for guidance, pharmacists should cover both pharmacological and non-pharmacological options. Pharmacists should recommend that patients check pollen counts to avoid exposure when possible. If they are going to be outside, they should shower before bed to remove any pollen from their hair or body that may transfer to bedding. Also patients with pets should wipe off pet feet prior to coming in the house to avoid tracking pollen inside. Those who garden should choose plants that do not produce airborne pollen. Also, using saline or a neti pot to rinse nasal passages may help reduce allergy symptoms.

Over-the-counter antihistamines should be the first line of treatment for allergy sufferers. First-generation options — such as diphenhydramine or chlorpheniramine — can cause drowsiness but may have the best efficacy for some patients. Second-generation products — such as loratadine, cetrizine or fexofenadine — should work well for most patients and are not associated with the same amount of drowsiness. If the patient’s symptoms require a decongestant, pharmacists should assess if pseudoephedine or phenylephrine is the most appropriate, or if a nasal steroid — such as the new OTC triamcinolone spray — might be a better option. Finally, antihistamine ophthalmic preparations may be the best option for patients with localized symptoms in order to avoid potential systemic side effects from an oral medication.

As for asthma patients, pharmacists should review proper inhaler techniques with every patient, and confirm that they have an asthma action plan in place. Patients should have an albuterol rescue inhaler for attacks as needed, but also should have either a combination long-acting beta-agonist/corticosteroid inhaler or just a corticosteroid inhaler to take on a regular basis to decrease or eliminate attacks altogether. A leukotriene inhibitor also may be helpful for allergies or asthma. Patients should know their asthma triggers and try to avoid them whenever possible.

Many private and government agencies are working to slow the effects of climate change. Each person can make changes to reduce waste and decrease the impact of an individual’s carbon footprint, and pharmacists can help patients manage their symptoms and act as a source of credible information as they go through one of the worst allergy seasons yet.

To read about protecting against such disease-ridden insects as mosquitos and ticks, click here.

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