Marion Munley in Philly for Seminar

Mr. Quaid Goes to Washington

Actor Dennis Quaid testified before Congress yesterday about the terrifying ordeal that nearly killed his newborn twins last year. The infants were given an accidental overdose of the blood-thinning drug, Heparin (shortly thereafter, the drug made additional headlines when tainted batches from China killed dozens).

He and his wife are suing Baxter International, the maker of the drug, as they believe confusing labeling on the bottle caused the mix-up. They also argued that the drug should have been recalled after three other infants died, also of accidental overdoses. Baxter cited preemption in their motion to dismiss the Quaid’s lawsuit.

Before Congress, he urged lawmakers to protect the rights of average citizens, saying “ I believe that if preemption of lawsuits is allowed to prevail, it will basically make all of us, the public, uniformed and uncompensated lab rats.”

Here’s some video of Quaid talking preventive medical negligence-

The FDA, under the Bush Administration, has advocated the preemption of lawsuits. FDA Deputy Commissioner Randall Lutter said, “[The] FDA believes that the important decisions it makes about the safety, efficacy and labeling of medical products should not by second-guessed by state courts.”

Rep. Henry Waxman, D-CA, disagreed, saying, “One of the most powerful incentives for safety – the threat of liability – would vanish.”

Surgery on Holiday?

A few years back, I starting hearing about “medical tourism.” Its basically when folks travel to other countries such as Thailand and India for surgery or other types of medical care.

Now, I’ve heard arguments both for and against it; however, none so interesting as the insight provided this Texas orthopedic surgeon, which you could watch here.

He actually says that one reason patients shouldn’t go overseas and pay a fraction of U.S. medical costs (50-80% less, even after travel expenses) because he questions, “Is there legal recourse for the patient?”

Did he really just say that? It seemed odd to me that a doctor practicing in a state that fought so hard to limit an injured patient’s legal recourse, that this would really be a concern for him. Why would it worry him that patients be denied access to “frivolous” lawsuits, when its nearly impossible for injured patients to get justice in Texas? I guess he’s using this argument because he doesn’t want to loose his next patient to some foreign doctor.

Now, I am not arguing for or against medical tourism, as I certainly am no expert on the subject. I cannot tell you whether the benefits outweigh the risks. I can; however, tell you that there are good and bad doctors everywhere, even here. So matter what you are getting done, or where you are going for it, do your homework. Research your doctor, ask him/her about their success rate with your type of procedure, ask for your hospital’s infection rate and always ask questions about things you don’t understand or that make you feel uncomfortable.

For more information about how to protect yourself from medical errors, click here.

Patient Safety Authority Releases Annual Report

Last week, the Patient Safety Authority, an independent PA agency, announced the release of the 2007 Annual Report on safety in PA healthcare facilities. Read the full report here.

The statistics for this year’s report showed an increase of 16,151 incidents over last year. This includes an 8% increase in Incidents (described as near misses and events that reached the patient but did not cause harm) and a 5% increase in Serious Events (adverse events with patient harm). This is a startling increase.

As a plaintiff’s firm, we often see the devastating and destructive effects of negligent healthcare. Each year an estimated 100,000 people die from preventative medical errors. Often times, Big Medicine wants to put the blame of high healthcare costs on the lawyers, but the truth is their own negligence cost lives and money- billions of dollars each year.

Our firm has been representing victims of medical malpractice for decades. We’ve got the skills and expertise necessary to hold Big Medicine accountable.

This year’s report showed errors affected women more often than men (54% of errors were against females). A whopping 63% of adverse drug events affected women.

Of the total 212,000 incident reports, 23% were errors related to a procedure, treatment or test; 22% were medication errors, 17% were patient falls, 15% were complications during procedures, treatments or tests; and the remaining 23% of incidents affected transfusions, adverse drug reactions, equipment failures and other/miscellaneous events.

For more information about the Patient Safety Authority, click here.

The Genetic Information Nondiscrimination Act: Privacy Prevails in America!

In a 414-1 vote, the House of Representatives passed a H.R. 943, Genetic Information Nondiscrimination Act, onto President Bush. A similar version passed in the Senate 95-0 just days earlier. Bush spoke publicly on his support of the bill.

The bill, if made law, would prohibit employers and insurance companies from using genetic testing (to determine if the individual is predisposed to developing medical conditions) to reject job applications or to set insurance premiums.

Francis Collins, head of the National Human Genome Research Institute told the AP, “Your skin color, your gender, all of those are part of your DNA. Shouldn’t the rest of your DNA also fall under that protective umbrella?”

Collins and other researchers are supporting the legislation as they are seeing increasing numbers of Americans using fake names, paying cash or flat-out refusing genetic testing so that this information doesn’t get back to their employers and insurance companies. According to researchers, genetic testing may provide the pivotal information necessary to improve healthcare. They believe that once the bill is past, more and more Americans will submit to this type of testing.

Needless to say, the U.S. Chamber of Commerce is against this legislation, stating opposition to $300,000 fine that could be slapped on employers for violating the law.

Similar legislation was proposed about a decade ago; however, due to lobbying from large employers and health insurance providers and the questionable necessity of the law (at that time there were no documented cases of genetic discrimination) prevented it from passing. In the time since then, the Human Genome project successfully identified variant genes that can be linked with medical conditions, and things have changed.

According to the AP, “A 2001 study by the American Management Association showed that nearly two-thirds of major U.S. companies require medical examinations of new hires. Fourteen percent conduct tests for susceptibility to workplace hazards, 3 percent for breast and colon cancer, and 1 percent for sickle cell anemia, while 20 percent collect information about family medical history.”

Proponents of the legislation believe that the law will stop these discriminatory practices and strengthen a patient’s right to privacy.The lone dissenter was Congressman Ron Paul, R-TX, who said, “”Because of the federal government’s poor record in protecting privacy, I do not believe the best way to address concerns about the misuse of genetic information is through intrusive federal legislation.”

Read more about the bill here.

HIPAA- A Barrier Between You & Your Medical Records?

Back in 1996, when the Health Insurance and Portability and Accountability Act (HIPAA) was signed into law, the intention of the law (especially Title IV) was to protect a patient’s right to privacy, reduce fraudulent activity, streamline data systems and improve the health insurance system overall.

For years prior to the law’s passage, there was no federal standard for obtaining your medical records. Without the patient’s knowledge, records were being given to insurance companies, sent to landfills or just flat-out lost. Alerted by highly publicized lapses in medical record confidentiality (a garbage truck crash that sent medical records flying all over the highways, a doctor selling a computer without deleting patient information from the hard drive, and the list went on and on), lawmakers decided a better system was needed. So the whole theory behind HIPAA regs are that your medical records are just that, yours, and they cannot be given to anyone without your approved consent. Furthermore, you should be able to access your own medical records, or appoint a designee to get them for you.

After much protest from health organizations over steep fines for non-compliance, confusing new rules and the high cost of getting an office HIPAA compliant; the law was turned on its head. Today, its patients, not the insurance companies or providers that are having a hard time obtaining medical records.

What started out as an altruistic bill aimed at improving the health care system for patients, has become the ultimate Big Medicine delay tactic. Now they feel they are the gatekeepers between you and your medical records, and getting through may not be as easy as you’d think. Just ask the people in this USA Today article.

They know all too well the sneaky methods employed by hospitals to keep you from finding out what really went on during your hospital stay, sometimes by what experts refer to as “wrecking” medical records. This process is when hospital staffers knowingly try to obscure the records by darkening, lightening, shrinking or distorting the photocopies or adding White Out to the parts of the records they wish to keep hidden. Records are also selectively chosen, and most hospitals give a “summary” of key events. Full records (especially the incriminating ones) often go unrevealed forever, or at least until well after the medical malpractice statue expires. Convenient, huh?

So what’s a patient supposed to do? First thing you have to know- you have recourse. Although a lot of things have changed about HIPAA, one thing hasn’t- steep fines for non-compliance. If you or a loved one is having difficulty obtaining medical records, arm yourself with knowledge. This aspect of HIPAA is monitored by the Health & Human Services’ Office of Civil Rights (you can find your local branch here). These are the guys that you need to bring your concerns to, and they will assist with filing a complaint. Once you bring it the OCR’s attention, it will be investigated, and appropriate action will be taken.

Remember, hospitals have 30 days to provide you with records that they house on-site, 60 days for those housed off-site, and if they cannot get them to you in that time frame, they need to notify you. Don’t let them push you around, especially if you have time restrictions such as a running statue of limitations.

If all else fails, call the Department of Health. Although no private civil action can be brought against the hospitals for non-compliance, there are plenty of rules targeted at keeping them in line.

Want to play it safe? Make the effort to periodically collect your records with each doctor and pharmacy that you use. You will have to pay for the records, but having them at your disposal might just prove to be beneficial.

For more information on HIPAA and making a complaint, check out the HHS website, here.

Sick of Spinach

According to a House committee report, since 2001, almost half all the nation’s spinach-packing facilities had “serious” sanitation issues; however, the FDA failed to make “meaningful” actions to address the violations. Read the government report here.

FDA inspections noted that 67 facilities lacked adequate restroom sanitation, had piles of garbage and potentially hazardous indoor condensation issues. Reports have shown some buildings were found to be vulnerable to rodent infestation and facility-workers displayed poor hygiene and went without hairnets and other sanitary garb.

Since 1995, there have been 20 serious outbreaks of E.Coli linked with tainted spinach and lettuce. One of the most notable was the 2006 poison spinach scandal that sickened hundreds and killed three. The outbreak was linked to a supplier for California’s Natural Selection Foods. It is believed waste from cows and/or feral pigs contaminated the spinach crop. However, years before this outbreak, the FDA identified problems with several Natural Selection facilities. According to the authors of the House report, the “FDA at no time required the firm to correct these conditions at any of its facilities, even after laboratory tests indicated the presence of microbial contamination at the exact site later implicated in the 2006 outbreak.”

Shortly after the episode, FDA officials admitted to lapses in food safety efforts. The House report revealed that Natural Selection facilities and other problem factories were being inspected every 2.4 years, rather than annually as required by federal guidelines.

Despite the identification of serious safety violations, the FDA did not report any of the problem facilities to its internal enforce authorities, and failed to take any serious efforts in correcting the potentially life-threatening problems. Authors of the House Committee report explained their investigation raised “serious questions about the ability of FDA to protect the safety of fresh spinach and other fresh produce.”

FDA spokeswoman Kimberly Rawlings said in an e-mail that “despite recent concerns, the food supply in the U.S. continues to be one of the safest in the world and this includes fresh produce.” I wonder if she still eats bagged spinach.

Gov. Taps NEPA Native for Director of Open Records

Northeast PA’s own, Terry Mutchler, has been chosen by Gov. Ed Rendell to head-up the state’s Office of Open Records. The position was created last February when the state’s open records law, which was considered one of the worst in the country, was overhauled. Basically, the new law says that local and state records will be public, unless specified. Read more about PA Senate Bill 1 here.

Mutchler, an East Stroudsburg native, has a history in both the legal field and the media. She worked as an investigative reporter for the Allentown Morning Call and the Associated Press. During her time at the Morning Call, she was sued for refusing to reveal a confidential source and faced six-months in jail; she was later vindicated in the case, which went all the way to the U.S. Supreme Court. Prior to accepting Mr. Rendell’s appointment, Atty. Mutchler had been serving as the Illinois’ first Public Records Counselor, where she helped define Illinois’ open records policy.

Her six-year term as Director of this new office will begin in June. Between now and then, she will be working to build and train the office’s staff, get to know the law and implement public policy. Come June, the Director will begin working with government agencies, citizens and the press on open government issues. She will also address disputes over access to the records.

In a release Gov. Rendell said “The Office of Open Records will serve an essential role in helping the public better understand how their government operates. Terry brings the ideal combination of knowledge and experience to her new role as executive director of the office, and I am very pleased to welcome her back to Pennsylvania.”

The current open records law was passed in 1957, and failed to include documents of the PA General Assembly and many financial documents. The new law recognizes that records belong to the public, and that means the burden of proof now falls on an the agency wishing to deny access. Now the public will be able to access most records, with the exception of certain 911 tapes, autopsy and police reports. It also established penalties on individuals or agencies that deny access to records.

Mutchler, who is be making 120K per year, believes her background will help her make a smooth transition into this new position. Read more about her appointment here.

UPDATE: Wesley Snipes Sentenced for 3 Years

Well, the court agreed with procetourers and sentenced actor Wesley Snipes for three years for tax fraud, the maximum sentece. Three years in the slammer certainly makes you think twice about not paying taxes!

See our previous post for more information on Snipes’ trial.

Want to share your comments? Blog it here.

Follow the Golden Rule . . . Give Notice As Soon As Possible

If you are hurt at work, the most important thing to remember is to report the injury to your employer through your supervisor at the time of the injury. Every injury should be reported, no matter how small you may think it to be. Any injury could potentially become a liability, not only to your health but also to your finances if it is unreported. Telling your employer that you are injured is your responsibility and it is called “giving notice.”

Too many times an employee will feel a “pop” in their knee, a pain in their shoulder or their back, and let it go for days or weeks. Not reporting an incident or injury can allow your employer to deny your claim through their insurance carrier. This can initially prevent your medical expenses and/or wage loss from being paid if the treating physician should later remove you from work due to the injury.

These injuries, which may seem minimal to you and appear to require reporting, can be an indicator of a more serious injury. You may feel that is it a strain/sprain and a few days rest may alleviate your pain, and it may very well. However, your injury can end up being serious you must protect yourself. The only way to protect your rights is to give notice.
The first step to protect your rights as an injured worker is to report your injury as soon as possible under the Workers’ Compensation Act. Obviously, if your are removed from work via ambulance you may not be able to report your injury at the time that it happened, but never assume that someone else has reported your injury for you. Follow-up with your employer as soon as possible to insure your injury has been documented.

Many injuries that end up being denied by the Insurance Carrier happen on a Friday. The injured worker goes home without reporting it on the assumption that after a weekend of rest, that he/she will feel better and they do not report it until Monday. On Monday, the Insurance Carrier most likely is going to deny the claim based upon their perception that the injury did not happen at work but instead during the weekend while you were out of work.

Do not assume the insurance carrier will pick up the claim and pay for your benefits because you are a good worker or because the company has employed you for many years. Unfortunately, this is rarely the case. Remember the insurance carriers are not in business to pay out money. If you give them an “out” they will take it.

In the course of our legal experience with workers’ compensation claims, we have seen family members deny that other family members were injured in the scope of their employment. We have seen long standing employees who thought they were very good friends with the owner of the company being denied for benefits. In the state of Pennsylvania, every employer is required to carry workers’ compensation insurance. This is in place to protect you. The most important way to protect yourself and your rights is to give notice of any injury at the time of injury or as soon thereafter as possible. Under the Workers’ Compensation Act, you must report your injury within the first 120 days or be forever barred from making a claim. Please keep in mind, the longer you wait to give notice the greater likelihood that the Insurance Carrier will deny the claim.

If you have any questions about a workplace injury, find some answers here.