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Heads in the Sand, Hands Protecting Wallet

Posted by Andrew J. Barovick | Mar 05, 2011 | 0 Comments

I was so enraged this morning that I could not write.  That is because I came across this article in today's New York Times.  It's about an American hospital that overradiated stroke patients undergoing CT brain perfusion scans, despite a virtual tsunami of warnings.  According to reporter Walt Bogdanich:

The patients at Cabell Huntington Hospital in Huntington, W.Va., were overdosed…until late November..even after the Food and Drug Administration had publicly issued its final report on hundreds of overdoses involving brain scans at other hospitals and the errors had been discussed publicly in Congress and by state officials and professional organizations.

What's more, although Cabell knew about the errors for three months, it stonewalled, never publicly admitting to them, until the NYT began probing.  And now the professional medical community, the patient community, and the community consisting of all people with brain function, are left to wonder: how could this have happened, given the bright red flags waving before Cabell's collective eyes?  As the lawyer for one victim put it, ” it was unfathomable that [the hospital] could make these mistakes ‘after the entire radiology world and the universe was aware of the problems.'”

So, this is not mere negligence.  This is more than mere error.  This is a willful ignoring of well-established dangers to patients under the hospital's care.  And what is not addressed in this article is the long-term effects of receiving over 10 times the recommeded dose of radiation–the dose that one patient, a 36-year-old mother of two, received.  The immediate effects included nausea, fatigue, feelings of burning in her head and face, and hair loss in clumps.  Might other, more insidious results lie ahead for her?  Cancer is the obvious threat, but unfortunately, the possibilities are unknown.

How do we stop this type of disaster from continuing to occur?  Dr. Rebecca Smith Bindman, a radiology professor who has testified before Congress, suggests that the “only way to fix the situation is to have hospitals be accountable by having to record the dose and reveal that to patients.”  The Dr. is right, but also wrong.  Hospitals must be held accountable, but telling a layperson, i.e, the patient, what dose he or she received will do nothing to correct the problem.  Patients are unlikely to realize that they have been overradiated, and even if they do, they will likely focus their initial efforts on trying to understand what just happened to their health.

Hospitals must be held accountable in the manner that hospitals and tort “reformers” despise: through the pocketbook.  Money talks to hospitals, and they don't like it when the talk consists of the money saying “Bye-bye.” Of course, none of this would be necessary if the hospitals and medical societies actually made good on their promises to regulate their institutions and MDs, and provide an environment of patient safety that we can rely on. But they don't, as this disgraceful story illustrates.

The tort “reformers” want legislation, on both a New York State and Federal level, that would gut the rights of injured patients to be made whole after medical errors and other negligence injure or kill them.  In other words, the tort “reformers” want to relieve hospitals and doctors of accountability for their errors, because that philosophy is good for commerce, and keeps hospitals and insurance companies financially healthy.  But David J. Brenner, Director of Columbia University's Center for Radiological Research, has a better idea.  Introduce legislation that would establish standards for controlling radiation exposure from CT and other types of scans.  And here is my two cents.  We need legislation to implement a new, patient-centered policy. When a hospital or doctor chooses to ignore clear warnings regarding patient safety, and that conduct results in injury or death to patients, the hospital faces mandatory, significant fines ranging from $5 million to $25 million, depending on the circumstances: the degree of the hospital's culpable conduct, and the severity of the injury to patients.  The money would go both to the injured patient (or his/her family, in case of death) and to mandatory retraining and oversight of the hospital and/or MDs involved. And there would be no risk that the patient would remain uncompensated, as there would be in the traditional trial setting, where the perverse public relations campaign pushed out by such stellar corporate citizens as Phillip Morris has crept into the minds of jurors, who now view any plaintiff in a lawsuit with suspicion.

As always, I won't be holding my breath.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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