WLLC Blog

Over 238,000 Preventable Hospital Deaths

A recent study has found that between 2004-2006 there were over 238,000 preventable hospital deaths in the United States.  Patient safety incidents cost the Medicare program over $8.8 billion!  Approximately 1,100,000 Medicare patients suffered a preventable injury or died of a preventable cause during their hospital admission. 

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Mandatory Nursing Home Malpractice Insurance Law Dies in Committee

Yesterday, the Public Health Committee of the Oklahoma House of Representatives killed a bill that would have required nursing homes to carry a minimal amount of insurance or show that they have sufficient assets to play claims of victims of abuse and neglect in their nursing homes.  The vote was 10-9.  According to the Oklahoma Center for Consumer and Public Safety, the deciding vote was from Del. Cox, also known as Dr. Cox.  Dr. Cox is a nursing home owner. 

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Nothing Left Behind: Preventing Retained Objects From Surgery

Cedar-Sinai Hospital in California has taken positive steps to prevent foreign objects from being left inside of a patient following surgery.  The problem is very serious, occuring approximately 1 out of every 1000 to 1500 abdominal and chest surgeries.  Cedar Sinai has taken a leadership role in requiring surgeons to x-ray patients prior to closing the body cavity in surgeries at higher risk for leaving foreign objects in the patient.  That seems like a very reasonable step to prevent patients from suffering through unnecessary surgery, serious infections, and even the loss of life. 

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Oklahoma Senate Approves Bill Requiring Nursing Homes to Carry Malpractice Insurance

In follow-up to my last blog post, there is some good news out of the Oklahoma legislature.  The Senate passed 45-0 a bill to require nursing homes to carry at least $250,000 in malpractice insurace.  The bill now proceeds to the Oklahoma House where I hope it will receive the same reception.

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Should nursing homes be required to carry liability insurance?

Most people would be surprised to learn that there are nursing homes in Virginia with only a minimal amount of liability insurance.  I have run across two nursing homes in recent years that carried only a small amount of coverage.  Many people would argue that they are being irresponsible.  Imagine that a loved one suffers a severe injury in a nursing home or assisted living facility.  Without liability insurance who will pay the medical bills and out of pocket expenses?  Medicare may pay part of the bill, but often the patient and the patient's spouse is left with a large bill.  What about the pain and suffering of the victim?

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30,000 Americans Wake Up During Surgery Each Year

Can you imagine waking up in the middle of surgery?  It is estimated that 30,000 patients wake up during surgery, yet they are unable to move, talk, or cry out for help.  This is thought to happen to 1 or 2 of every 1,000 surgical patients.  It is more likely to happen to children than adults.  One victim in an MSNBC story describes it like being entombed.  “While you’re laying there on the table,” she recalled, “you are thinking, praying, cursing, plotting, pleading, trying to crawl off the gurney, trying to kick, scream, move any part of your body to let them know you’re awake. In effect, you are entombed in a corpse.”

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Public Notification of Defective Products

During the past year, we have read article after article about dangerous children's products.  Hardly a month goes by without hearing another report about a Chinese manufactured toy with high levels of lead paint.  Under current law, the Consumer Product Safety Commission must wait at least 30 days before notifying the public of a dangerous product.  That is thirty days where our children remain exposed to dangerous products.  Fortunately, common sense reform is on its way.  Congress is scheduled to vote on a Product Safety Bill that will remove the 30 day grace period for manufacturers.  Additionally the legislation may create whistleblower protections so employees who report dangerous products will not have to fear a loss of their livelihoods.

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More than 60 Virginia Nursing Homes Targeted for High-risk Pressure Ulcer and/or Physical Restraint Improvement

The Center for Medicare Services has published a list of nursing homes targeted for high rates of pressure ulcers and use of physical restraints.  Click here to see the full list which is organized by city and state.   By my count over 60 Virginia nursing homes are listed from all corners of Virginia. 

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Medication Errors Injure 1.5 Million Americans

A report by The National Academies, finds that at least 1.5 million Americans are injured or killed each year due to medication errors. The extra cost of treating these injuries is estimated at $3.5 billion dollars per year excluding lost time from work and more importantly the needless suffering of victims of preventable medication errors.

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Nursing home fire sends 24 patients to the hospital

A fire in an Illinois nursing home sent 24 patients to the hospital.  Apparently there is evidence that the fire was started by a resident smoking.  For more information read this article from the Shelby County Reporter.  My understanding from speaking with nursing home nurses is that most nursing homes restrict if not outright ban smoking.  It does present a balance between safety and the rights and dignity of adult patients.  In my opinion, nursing homes that restrict or even ban smoking on the premises are correctly placing the safety of the residents and staff first.  Imagine evacuating over 100 bed ridden patients during a fire!

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Should physicians who commit medical malpractice be protected by charitable immunity?

The Virginia Supreme Court took up arguments last Wednesday on this critical question. The cases stem from medical malpractice lawsuits filed against physicians at the University of Virginia Medical Center. The physicians are employed by the University of Virginia Health Services Foundation (HSF). According to court records, HSF had approximately $215 million in revenue in 2005, yet less than 1% of losses were attributed to charitable care. One physician earned approximately $850,000 in bonuses in 2005. I attended the arguments at the Virginia Supreme Court because the issue is critical to thousands of patients in Virginia. Should HSF prevail, many victims of medical malpractice in Virginia will be denied any form of civil justice. The bar of charitable immunity would apply regardless of whether the patient paid for services or received free care. In other words, a paying patient at UVA who suffers permanent injury due to medical malpractice would not be able to file a lawsuit against the physician. Likewise physicians at Eastern Virginia Medical Center or VCU Medical Center would be protected for responsibility by charitable immunity. My sense was that the justices of the Virginia Supreme Court were very well-prepared for the arguments and asked appropriately probing questions of HSF's attorney. I anticipate a decision in late February. Please return to our medical malpractice blog for further updates. Regards, Josh Silverman

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Nursing Home Fined $20,000 for Restraining Patients to their Beds

According to a Pittsburgh television station, a local nursing home has been fined $20,000 for restaining patients to their beds without physician orders or even notifying the families. Click here to read the news report. Nursing home and hospital patients have the right not to be put in restraints except under limited circumstances. Restraints deny patients their freedom, dignity, and risk severe injury. Studies have shown that restraining patients leads to physical injuries, loss of bladder control, and depression. It is improper to restrain a patient for the convenience of the caregiver. Instead all reasonable alternatives should be pursued. To learn more about the legal rights of patients not to be improperly restrained visit our nursing home website where we have a separate practice area devoted to restraints. Josh Silverman

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Nursing Home Admission Agreements - Be Careful What You Sign

Most nursing homes require the patient or a family member to sign an admission agreement. These agreements are often lengthy and attempt to take away important rights. Mostly importantly, many nursing homes attempt to deprive their patients of the right to trial by jury as guaranteed by the 7th Amendment to the U.S. Constitution. If you or a loved one is injured or killed due to nursing home abuse or neglect, the admission agreement can bar you from not suing in a court of law. Instead you can be forced to arbitrate the claim on the nursing home's terms. In many cases, these clauses are unenforceable. Fortunately, Virginia law provides an opt-out procedure, but you must opt-out promptly after being injured. I have also seen nursing home admission agreements that state that in the event of serious injury or death due to the nursing home's negligence, you can not sue for more than $50,000. The Virginia Supreme Court has held that these provisions are unenforceable. These are just two examples of provisions in nursing home agreements that deprive residents of their rights. If you or a loved one is a victim of abuse or neglect in a nursing home, you should contact an attorney promptly to review the admission agreement because any delay may cause you to lose important rights. For more information about nursing home malpractice, please visit www.virginia-elder-abuse-law.com. Josh Silverman

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How common is elder abuse?

I recently read some very alarming statistics circulated by the National Center on Elder Abuse. Studies show that between 1 and 2 million Americans age 65 or older have been subjected to injuries, exploitation and mistreatment by a caregiver. Other studies have found that between 2% and 10% of senior citizens are victims of elder abuse. The most shocking statistic is that for every case of elder abuse or neglect that is reported to authorities, five more go unreported. Click here to read the Fact Sheet from the National Center on Elder Abuse.

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Attorneys Fees

According to a survey published by the National Law Journal the average billable rate in large law firms is $348/hour! If the only way to hire an attorney was to pay those rates, few people could afford legal representation. One of the privileges of representing victims of medical malpractice, defective products, and serious car accidents is that we do not turn people away because they can not afford our services. We charge most of our clients on a contingency fee. In other words the legal fee is a percentage of the recovery. If there is no recovery there is no legal fee. At most the client is responsible for our out of pocket costs. (That is a rule imposed on all Virginia attorneys by the Virginia State Bar). We represent people of all walks of life. Some of our clients are financially very secure while others rely on government assistance. Many of our clients have been financially destroyed by the carelessness of others (doctors, manufacturers, drunk drivers, etc.). It gives us particular pleasure when we have restored a client to financial independence by obtaining fair and just settlement of the client's case. More information about our legal fees can be found on our website. Feel free to contact us if you would like to discuss your particular situation. Regards, Josh Silverman

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Patient Injuries and Death Due to Medication Errors

Medication errors cause 7,000 patient deaths a year according to a well publicized study by the Institute of Medicine. Most medication errors come from carelessness. A doctor's prescription is illegible. A pharmacist carelessly prepares the medication. A patient bleeds to death after a nurse administers Coumadin (a blood thinner) intended for another patient. For more informaiton about medication errors go to the FDA's website where you can find an excellent article describing the incidence of medication errors and how they can be prevented. At Williamson & Lavecchia, L.C. we represent victims of medication errors committed by hospitals, nursing homes, and pharmacists. You are invited to contact us if you or a loved one has been injured due to a medication error. Your claim is subject to Virginia's strict statute of limitations. Regards, Josh Silverman

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Human Rights Complaint Against Nursing Homes

The struggle to ensure that nursing home patients are treated with dignity often requires incredible diligence and even creativity. The Ontario Star reports that the Ontario Federation of Labour has filed a human rights complaint on behalf of nursing home residents left in soiled diapers. In Ontario, nursing homes are allocated only $1.20 per day for incontinence products. Many nursing homes in Ontario have a policy of only changing a diaper when a strip on the diaper indicates it is at least 75% soiled. We would never treat our babies so cruelly, yet that is a daily indignity suffered by nursing home patients. While I am not specifically aware of Virginia nursing homes placing caps on the amount of money spent for incontinence care, nursing home administrators impose strict budgets to remain profitable. Leaving residents in soiled diapers is not just degrading, it can lead to severe injuries and death. Being left in a soiled diaper is obviously very uncomfortable and leads to rashes and skin breakdowns. Additionally, it leads to painful urinary tract infections which can lead to a life threatening condition called sepsis. Nursing home abuse lawyers must be creative and persistent to obtain justice for victims of nursing home abuse and neglect. I commend the Ontario Federation of Labour for their efforts to obtain sufficient diapers for nursing home patients. The hardest thing to imagine is that it requires a human right complaint. You'd think providing diapers to an incontinent nursing home patient would be a no-brainer. Click here to go to the Ontario Star to learn more about the Canadian human rights complaint. You are invited to visit our nursing home abuse and neglect website to learn more about the legal rights of nursing home patients here in Virginia. Regards, Josh Silverman

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The Rule of Law

I do not typically comment on international affairs on our blog, but the assault on our colleagues in Pakistan begs for comments. Very recently, President Musharraf rounded up the Supreme Court, suspended civil liberties, and has arrested 1500 attorneys. Attorneys in grey suit have taken to streets of Pakistan to demand the return to the rule of law. It is a sight not many of us are used to seeing. Attorneys marching through the streets and being carried off by the police for doing nothing more than standing up for the rule of law.

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What is my case worth?

That is a question commonly asked of attorneys. The technical answer is only the jury gets to decide. In Virginia, the jury is made up of seven members of the community who are sworn to decide a case based on the law and the evidence. At trial the plaintiff must prove that the health care provider breached the standard of care and that breach was a cause of the plaintiff's injuries. The injuries can include medical bills (past and future), lost wages, loss of future earnings, funeral bills, embarrassment for disfigurement, inconvenience, and pain and suffering. The last three are the toughest to calculate because each plaintiff's experience is unique. Damages are also affected by the life experiences of the members of the jury. Different people come to serve on the jury with different senses of what is a fair amount to compensate someone for their injuries.

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Punitive damages in Virginia

Punitive damages is probably one of the concepts by the media and the general public. There is a misperception that punitive damages are routinely awarded and are bankrupting many companies. Nothing could be further from the truth.

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Congress to Investigate Nursing Home Buyouts

Two congressional committees have announced investigations into the buyouts of nursing home chains by private equity groups according to the New York Times. The investigations were sparked by the $6.3 billion buyout of Manor Care by the Carlyle Group. Manor Care is the nation's largest nursing home chain. Nursing home advocates are very concerned about the sale and similar buyouts. The two primary concerns are that they will reduce staffing levels which will compromise patient care and they will set up corporate structures to escape legal responsibility for neglecting and abusing patients. Staffing is typically the most expensive aspect of operating a nursing home. Reducing staffing levels improves profits, but leaves patients vulnerable to injuries like pressure sores, malnutrition, dehydration, falls, and other forms of neglect. Typically, the threat of legal action would deter a company from harming its customers (not to mention moral duties). However, nursing home chains often set up corporate structures to deflect lawsuits. Here's how: They make each nursing home into a separate company. The nursing home then pays high rent to another company, management fees to another company, and so on. The catch is that each of these companies is owned by the private equity group. The nursing home claims it has no money to pay court judgments, yet the private equity group is financially in the black. Of course the private equity group claims it is not responsible for patient injuries only the insolvent nursing home. I am very pleased Congress is investigating. It is time for action. Most nursing home patients can not speak up for themselves. Congress needs to impose minimal staffing levels, require nursing homes to carry sufficient insurance and truly hold nursing home chains accountable for providing poor patient care. Please come back to our website for further updates or email me for more information. Joshua Silverman

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Who should pay when hospitals commit errors?

Starting in October 2008, Medicare will not pay hospitals for committing common and preventable errors. These errors include pressure sores, certain infections, blood incompatibility, air embolism, and unintended retained objects from surgery. At Williamson & Lavecchia, L.C. we have represented a number of victims of these medical errors. In many cases, the hospital has charged Medicare, Medicaid and private insurers for correcting these errors. It certainly seems odd that a hospital should profit from its own negligence. Hopefully, this rule will do more than keeping hospital from profiting from their negligence. My hope is that it will encourage hospitals to become more aggressive about protecting patients from the consequences of these serious errors. Josh Silverman

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Expert witnesses in medical malpractice cases

Possibly the number one challenge in medical malpractice cases is finding qualified expert witnesses to testify on behalf of the patient and against a colleague. Virginia law requires the plaintiff to have an expert certify that a medical malpractice lawsuit has merit before the case is served. I wrote an article about that law which can be found in the library on this website. Most doctors are uncomfortable and unwilling to testify against a local colleague. Finding good expert witnesses requires creativity and tenacity. There are many experts who advertise their services, but I usually avoid them because they appear to be hired guns. I want my experts to be objective. Here is how locate qualified experts. I start looking for experts even before I open the case. At Williamson & Lavecchia, L.C. we are constantly updating our database of qualified experts based on what we learn from other lawyers, law journals, and medical journals. The authors of medical papers are often the leading experts. If they are unwilling to testify I will ask for their recommendations. Legal newspapers identify experts who have testified in the past on particular subjects. The process can go in any number of directions, but I must stress the most important thing is to be creative and persistent. Tom Williamson has written a great article on finding expert witnesses that has been accepted for publication in the VTLA Journal. Please return to our website in the coming weeks to read his article.

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Hospital leaves a sponge in a patient

This week I was contacted by another patient who left the hospital with a sponge left inside of her. It is shocking how often this happens. In most cases it is due to the failure of the surgical nurses to count correctly. During surgery, the surgeon often places numerous sponges in the patient. It is the job of the surgical nurses to keep an accurate count of the number of sponges put in the patient and the number of sponges removed. If the count is inaccurate the nurse should notify the surgeon and the surgeon should find the sponge and remove it. Sounds simple, right. Well, we've represented patients who had sponges left in them during child birth, gall bladder surgery, and other procedures. Click here to learn more about a hospital's duties to prevent these serious injuries. Josh Silverman

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Senators Seek GAO Investigation into Private Nursing Homes

Last week I posted a blog on the New York Times report of private equity nursing homes placing profits ahead of providing care to residents. Senators Hilary Clinton and Charles Grassley took note of the Times report and have called for an investigation by the Government Accountability Office (GAO). 63 private nursing home groups are likely to be subject to the investigation including the Carlyle Group which recently bought Manor Care, Beverely Enterprises, and Genesis Health Care. I applaud these Senators for calling for this much needed investigation. Patients in nursing homes are amongst our most vulnerable citizens and this pattern is placing them at greater risk. Please return to our website periodically for updates and further discussion about the investigation. Josh Silverman

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Nursing Homes Hiding Assets from Victims of Abuse

The New York Times published an excellent front page article exposing a common strategy used by nursing homes to hide assets from victims of nursing home abuse and neglect. Basically, national nursing home corporations are setting up multiple corporations to hide who is legally responsible for care at individual nursing home. We are seeing this trend in Virginia. What often happens is the nursing home is registered under one corporation. On the books the nursing home appears to be losing money or barely breaking even. Yet, the nursing home is making large payments in rent to another company, paying large management fees to another company, and making other inflated payments to another company. All of the companies prove to be interconnected, yet they claim only the insolvent nursing home is legally responsible for the patient's injuries or death. To make matters worse for the victim and the family, the nursing home often has minimal insurance coverage. Holding the other companies legally responsible is what lawyers call "piercing the corporate veil." It is not an easy task, but there are legal strategies to get to the assets of the nursing home and to hold the proper people accountable. Feel free to contact me if you would like more information. Josh Silverman

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