Preventable Hospital Errors

October 25, 2013

by:  George Wise

In 1999, the Institute of Medicine published a widely cited study called To Err Is Human. In it we learned that 98,000 people were dying every year from preventable errors in hospitals. Unfortunately, that study underestimated the number of deaths. According to a new study just out from the prestigious Journal of Patient Safety, four times as many people die from preventable medical errors than we thought, as many as 440,000 a year.

Read the study here.

Medical errors now claim the spot as the third leading cause of death in the United States, ahead of auto accidents and diabetes. Only cancer and heart disease cause more deaths. It is likely the estimates in this new study will replace the Institute of Medicine estimates from 1999. That means hospitals are killing off the equivalent of the entire population of Pulaski County, Arkansas every year. More than a thousand people a day are dying from preventable errors.

These deaths are not from the illness which hospitalized the patient in the first place. Patients are dying from preventable errors due to a lack of emphasis on safety. These preventable errors are common and well known. A sponge left inside the surgical patient causing a massive infection. A massive medication overdose. Infections from contaminated equipment used at the bedside. Following safety rules prevents these errors.

When will it end? Society picks up the costs of these errors in the form of higher costs for hospital care. Employers lose good employees and thousands of dollars in lost productivity. Families needlessly lose loved ones. We need to insist that hospitals implement safety standards to eliminate these errors. Safety first should be a hospital’s motto.

Tort Deform Myth Busted

August 27, 2013

Arguments supporting restrictions on the right to a jury trial (mischaracterized as tort or lawsuit reform) are based primarily on myths and unsubstantiated anecdotes. One of these myths is that doctors practice defensive medicine more often in states without caps on damages; therefore, caps on damages will reduce defensive medicine. A new study busts this myth.

According to a study by the Center for Studying Health System Change in the August Health Affairs, physicians’ perception of their risk of malpractice liability predicts their practice of defensive medicine. Below is the abstract of the newly released study:

Health Aff (Millwood). 2013 Aug;32(8):1383-91. doi: 10.1377/hlthaff.2013.0233.


Despite widespread agreement that physicians who practice defensive medicine drive up health care costs, the extent to which defensive medicine increases costs is unclear. The differences in findings to date stem in part from the use of two distinct approaches for assessing physicians’ perceived malpractice risk. In this study we used an alternative strategy: We linked physicians’ responses regarding their levels of malpractice concern as reported in the 2008 Health Tracking Physician Survey to Medicare Parts A and B claims for the patients they treated during the study period, 2007-09. We found that physicians who reported a high level of malpractice concern were most likely to engage in practices that would be considered defensive when diagnosing patients who visited their offices with new complaints of chest pain, headache, or lower back pain. No consistent relationship was seen, however, when state-level indicators of malpractice risk replaced self-rated concern. Reducing defensive medicine may require approaches focused on physicians’ perceptions of legal risk and the underlying factors driving those perceptions.

The findings of this study suggest that malpractice reforms touted for years as reducing defensive medicine, such as caps on damages, do not change how physicians practice. On the other hand, one could certainly argue that there is actually no such thing as defensive medicine. Either a test or procedure is necessary or it is insurance fraud to bill for it.

Under the Arkansas Constitution, the right to a jury trial is protected by language which says, “The right to a jury trial shall remain inviolate…”. Inviolate means untouched and undisturbed. The right to a jury trial should remain untouched and undisturbed and not subject to restrictions based on myths.

Reblog: Tort Reform Measures Increase Risk of Birth Injuries Such as Kernicterus

March 29, 2013


Recent statistics demonstrate that tort reform measures, such as those that lead to less testing of patients, will cause thousands more to die and many more to be severely injured.

BOSTON, MA, March 29, 2013 /24-7PressRelease/ — "The U.S. health system is the most expensive in the world, but comparative analyses consistently show that United States underperforms relative to other countries on most dimensions of performance."

That is the lead sentence of a recent comprehensive report by the non-partisan Commonwealth Fund called "Mirror, Mirror, on the Wall" – How the Performance of the U.S. Health Care System Compares Internationally – June 2010 (see link below). According to the report, the U.S. ranks dead last on patient safety; although our system is far more costly than any other system in the world. The authors point out that we have no national policies that promote quality improvement.

Instead, we see initiatives to reduce "defensive medicine" to allow doctors to do fewer tests to save costs, regardless of how many more lives are lost due to undiagnosed conditions. Recent statistics demonstrate that tort reform measures, such as those that lead to less testing of patients, will cause thousands more to die (beyond the nearly 100,000 that die each year from medical errors), and many more to be severely injured. We are justifiably outraged when auto makers reason that it is better to have a statistically significant number of people die than to correct safety problems. Since Americans don’t accept this reasoning and the disregard for human lives by auto makers, why would we accept it from our hospitals and the medical system, whose errors cause far more deaths than cars? There are at least two answers: (1) everyone drives cars, but not enough of us see ourselves or our children as vulnerable patients relying on safe care, and (2) the medical community keeps changing the topic to tort reform and defensive medicine each time someone mentions medical errors.

Source:  Tort Reform Measures Increase Risk of Birth Injuries Such as Kernicterus – World News Report.

REBLOG – STUDY: Texas Tort Reform Did Not Reduce Health Care Costs

June 27, 2012

In 2003, Texas voters approved Proposition 12, tort reform which capped medical malpractice payouts and made it more difficult for patients to sue hospitals. Republican politicians, led by Gov. Rick Perry (R), claimed that doctors were providing less services to patients because they feared getting sued. Republicans, joined by a “Yes on 12” campaign funded by the health insurance industry, promised that the amendment would lower health care costs and bring an influx of doctors to the state. Since 2003, Republicans nationwide have touted Texas as a model for tort reform.

Read More . . . 236 More Words

Source:  STUDY: Texas Tort Reform Did Not Reduce Health Care Costs.

This post is brought to you from The Brad Hendricks Law Firm as a service to provide legal and other information of public interest. If you have any questions about this or any other post, please contact our firm at (501) 221-0444 or (800) 603-5100 or email us. Our firm provides legal counsel in the areas of Personal Injury, Medical Malpractice, Social Security, Bankruptcy, Business Law,Employment Law, and Family Law, among others.

A Comment about the American Health Care System

March 9, 2012

Tuesday, March 6, 9:19 AM – by Ezra Klein, The Washington Post

On Sunday, I reported on new data from the International Federation of Health Plans showing that health-care prices are far higher in the United States than anywhere else. An MRI, for instance, costs $1,080 here, but only $280 in France. The disparity is explained, I said, by the fact that in other countries, the government sets the price and providers take it or leave it.

But some readers thought I missed the boat on this one. So let’s go through some of the objections.

Continue Reading . . . .

Ezra Klein is the editor of Wonkblog and a columnist at the Washington Post, as well as a contributor to MSNBC and Bloomberg. His work focuses on domestic and economic policymaking, as well as the political system.

Her Name is Stella . . . .

March 30, 2010


by Brad Hendricks and Caroline C. Lewis

Many people believe that some woman got millions and millions of dollars for spilling hot coffee on herself.

That may sound good in a political ad against our legal system, but it simply is not true.

That never happened.

It is a lie.

How would you feel if you knew that you were lied to in order to further a political agenda?  Would you feel betrayed?



You are not alone.

Unfortunately, this case has become an urban myth deceitfully misrepresented in order to turn the general public against the legal system.  It is the poster child often used to try to deny justice to those who need it most.  The true story is one that cannot be told as a sound byte in a political ad.

Read on if you are interested in the truth, the whole truth, and nothing but the truth about the McDonald’s Hot Coffee Case that stands alone as probably one of the most misrepresented cases in modern legal history.

Some call it a frivolous lawsuit.

Others essentially blame the woman in question for the injuries she sustained, contending that the case represents nothing more than a prime example of human greed when presented with an opportunity to sue the “deep pockets” of McDonald’s.

Still others actually criticize the woman’s attorneys, holding them out as willing to file any case, no matter how frivolous, in order to make money.  Mainly, though, it has been used by various corporate entities in support of legislation that would deprive you or a loved one of the constitutional right to have a jury of your peers determine the extent of your injuries and award damages accordingly.

The lady who had to bring this lawsuit is not "some woman."  Her name is Stella Liebeck, and these are the facts behind the lawsuit that so many people wrongly rely on to argue against the fundamental right that we all have to our day in court.

On February 27, 1992, Stella Liebeck, then 79-years-old, went to a local McDonald’s in Albuquerque, New Mexico, with her grandson, Chris.  Contrary to popular belief, when Stella and her grandson ordered that fateful cup of 49¢ coffee from the drive-thru menu, she was not attempting to multitask by driving while adding cream and sugar to her coffee.  Instead, her grandson was in the driver’s seat.  The car wasn’t moving, either.  Chris had parked the car to give his grandmother the chance to flavor her coffee.  Stella placed the 180-190°F cup of coffee between her knees, and removed the far side of the lid towards her.  Despite her precautions, the coffee spilled directly into her lap.


That is not hot.  That is scalding.  Water boils at 212°F.

At the temperature the coffee was served to Stella, McDonald’s own quality assurance manager admitted, it is not fit for human consumption.  Despite the knowledge, McDonald’s refused to change its policy and continued to serve coffee that it knew would cause injuries to its customers as served.

Thus, when Stella spilled that cup of coffee into her lap, the injuries that McDonald’s knew were likely to occur did, as the cotton sweatpants she was wearing immediately absorbed the scalding liquid and held it against Stella’s skin.  A beverage that was served at temperatures that could cause third-degree burns in as little as two seconds was held by her clothing, trapped, for more than 90 seconds.

By the time Stella arrived at the hospital, her medical providers determined that she had, in fact, sustained third-degree burns to 6% of her skin, with burns of lesser degrees extending over 16% of her body, including her thighs, buttocks, her genitalia, and groin region.  Over the next week, Stella remained in the hospital.  She required excruciatingly painful skin grafts to try to repair the damage that had been done.  She lost 20 pounds and dropped to a low of 83 pounds.  At one point, her family was not sure she would even survive the incident.

That was merely the beginning, however.  More than two years of medical treatment was required after Stella was released from the hospital.

What might shock you is that she did not try to settle for millions and millions of dollars in some attempt to extort money from McDonald’s.  She tried to settle with McDonald’s for $20,000, which included medical expenses (and was far less than the $200,000 she was ultimately awarded for her medical expenses, injuries, and scarring), and McDonald’s refused.  At that point, Stella hired Reed Morgan, a Houston attorney who offered to settle the case for $90,000 for Stella’s medical expenses and pain and suffering.  McDonald’s, at that point, countered with an $800 offer.

In the face of such a ludicrous offer, Stella sued, claiming that the coffee was unreasonably dangerous and was distributed with inadequate warnings.  Punitive damages were sought, as well, based on allegations that McDonald’s had shown conscious indifference for its customers and their safety.

What did the facts show during the August 8-17, 1994, trial that convinced a jury to turn on McDonald’s and award Stella damages, when they were initially irritated that they were being forced to hear what they believed was a supreme waste of their time?

First, McDonald’s required its franchisees to serve coffee between 180-190°F, when many of its competitors served coffee at temperatures no higher than 140°F.

Second, not only was McDonald’s coffee much hotter than other establishments’ coffee, it was hot enough to cause third-degree burns of such a severe nature that excruciatingly painful skin grafts might be warranted, and that it could do so in mere seconds.  And McDonald’s knew that it was serving coffee that could inflict this type of damage.  In fact, between 1982 and 1992, McDonald’s had received over 700 reports of burns attributed to its coffee.  Even worse, McDonald’s representatives tried to hide the existence of these previous claims before they were finally forced to acknowledge their existence.

When McDonald’s finally did acknowledge the history of complaints, Christopher Appleton, the quality control manager for McDonald’s, admitted that McDonald’s coffee would burn the mouth and throat if consumed when served.  Simply put, he testified, if a customer purchased a cup of coffee and drank it immediately, without waiting for it to cool, it would scald his or her mouth, throat, and esophagus. 

So why did McDonald’s continue to serve a product it knew could seriously injure its customers?

According to the testimony presented during the trial, McDonald’s served its coffee so hot based on recommendations from the coffee industry that higher temperatures are necessary to extract the “full coffee flavor” during the brewing process.  Thus, McDonald’s brewed its coffee between 195 to 205 degrees and held it at 180 to 190 degrees because, McDonald’s concluded, taste is of primary importance to its customers.  Besides, McDonald’s customers want “steamy hot” coffee and expect to get it that way.  Never mind the fact that McDonald’s customers had no way of knowing that third-degree burns could result from the coffee, or the fact that, by McDonald’s own testimony, the statement on the side of the cup was not a “warning.”  It was just a “reminder” that did nothing to notify the customer of the dangers inherent in drinking the coffee at the temperature at which McDonald’s served.

Weakly, McDonald’s testified that its customers purchased coffee intending to only consume the beverage once the customer reached his or her final destination.  Even this testimony, however, was contradicted by the company’s own research that indicated that customers intended to consume their coffee immediately after their purchase while they were still driving.  Ultimately, McDonald’s placed a product it knew to be unfit for human consumption into the hands of people who purchased the product for immediate consumption, and severe injuries occurred.  The risk of injury, including the severity of Stella’s injuries, could have been avoided by McDonald’s.  McDonald’s knew the risk of injury existed, but it just did not care.

McDonald’s justified its disregard of the risks to the public by arguing that any food at temperatures exceeding 130°F presented a burn risk.  McDonald had previously spent more than $500,000 settling prior claims related to its coffee.  Despite the complaints and the injuries sustained by McDonald’s customers, Mr. Appleton testified, McDonald’s had more pressing things to worry about than its coffee.

McDonald’s placed great emphasis on the fact that 130°F food could cause third degree burns, but in reality, the difference is that the lower the temperature, the more time a customer has to avoid the injury.  When the scalding coffee poured into her lap, the damage that ultimately required skin grafts and permanently injured Stella Liebeck was done in less than 3 seconds.  If the coffee had been served at 160°F, she would have had nearly 20 seconds to avoid the third degree burns that she sustained.  And that is still higher than the 130°F temperature that McDonald’s admitted presents a burn risk for other food items on its menu. 

McDonald’s unilaterally decided that its customers wanted hot coffee (never mind the fact that they were unaware of the severity of injuries that might result), and that their desire for hot coffee outweighed the injuries sustained by some of its customers.  The 700 people who were injured were absolutely inconsequential when McDonald’s considered the billions and billions of dollars it could make from serving excessively hot coffee.

The real insult in this case is that McDonald’s tried to place all the blame on Stella Liebeck.  First, McDonald’s argued that Stella Liebeck should not have placed the coffee cub between her knees.  Then, McDonald’s suggested that Stella should have simply removed her clothing promptly after the spill, ignoring the fact that she was sitting in the parking lot at a public location.  Perhaps most horrifying, though, was the suggestion by McDonald’s that Stella’s age was to blame for the severity of her burns.  In other words, her older skin made her more vulnerable to serious burns.   It was her fault that she didn’t move fast enough, didn’t strip when she should, and that she was so old that her skin couldn’t withstand the heat. 

There was no accountability on the part of McDonald’s.  In the face of billions of cups of coffee sold each year, earning McDonald’s untold sums of money, Stella Liebeck did not matter.  People like Stella Liebeck, according to McDonald’s human factors engineer, Dr. P. Robert Knoff, are “statistically insignificant” when McDonald’s considers its bottom line.

And here is how this case represents how justice was truly served in Stella’s Case:

When the jury was presented with the evidence, the jury awarded Stella $200,000 in compensatory damages; however, because the jury apportioned fault 80%-20% (finding Stella 20% at fault for her injuries), the award was reduced to $160,000.  The jury also awarded Stella $2.7 million in punitive damages based on its determination that McDonald’s engaged in conduct that was willful, reckless, malicious, or wanton.  This amount was based on McDonald’s revenues from coffee sales for two days.

Instead of a legislature arbitrarily reducing the amount awarded with no regard for the facts of any given case, though, as is one of the intended results of tort deform, the legal principle of remittitur was properly applied by the judge to the punitive damages award.  “Remittitur” is a ruling by a court that reduces an award that either exceeds the amount sought by a party, or because the award is “otherwise considered excessive.”

In applying the principle of “remittitur,” the judge in Stella’s case reduced the award of punitive damages from $2.7 million to $480,000, or three times the compensatory damage award.  The parties ultimately settled the case for an undisclosed amount believed to be less than $600,000, out of which Stella’s medical bills had to be paid—a far cry from the millions that so many claim she received when decrying Stella’s case as the poster child of frivolous lawsuits pursued by greedy lawyers out to make a buck, regardless of the merits of the lawsuits

The mention of “frivolous lawsuit” raises another issue.  In the legal system, what so many who throw that term about so freely in order to stir the public into a frenzy advocating tort deform is what actually happens to the frivolous lawsuit:  the claims may be dismissed by the court and the attorney filing such claims may be sanctioned.  However, there is no mechanism that will simply prevent one from filing a lawsuit.  It’s one of the fundamental rights we have in this country that is guaranteed in our Constitution, and which has been vigorously defended throughout the history of our nation.

Truly, the judge is not supposed to simply evaluate the facts of a case and determine that it is frivolous if there is some chance that reasonable minds could conclude that the facts do actually have some merit.  If one looks at the debate that has raged over this one case since it was handed down in 1994, it is easy to see that reasonable minds do, in fact, differ as to the merits of the lawsuit.  When a lawsuit is truly frivolous, however, it is a pretty universally accepted conclusion that there is no merit at all to the claims presented before a court.  There might be some minor disagreement, but such cases do not spark debates that span nearly 20 years and give rise to symbols in the arena of legal discussion that endure, even among those who are not member of the legal community.

Finally, justice was served here because it forced McDonald’s to stop “passing the buck” to its customers.  Clearly, McDonald’s did not consider the 700 people who had been injured previously to be significant, but the injuries themselves were undoubtedly significant to the customer.  Should a corporation be allowed to tell you that you are insignificant and that if you are injured by something the company does, knowing the potential harm that could result, it is just your problem??

Take out the jury system of determining the value of damages, the legal system’s checks that have been implemented to ensure that awards are not excessive, and the due process that is fundamentally guaranteed by our Constitution, and that is basically what occurs—the people least able to bear the cost are forced to do so by those in a much better position to protect the public.

That, no matter how you look at it, is not justice.

Related articles by Zemanta

Enhanced by Zemanta

ARTICLE: I’m Not Denny Crane. IMPACT & Membership by Tré Kitchens

February 26, 2010

by Tré Kitchens, President-Elect of the Arkansas Trial Lawyers Association

* Originally published in the ATLA Docket, Winter 2004.  Also available on the Brad Hendricks Law Firm website in the Articles Section.

I only know of three lawyers who claim to have never lost a case: a fictional character from Boston Legal, Denny Crane; Gerry Spence who claims to have not lost a case since Nixon was in office; and a young Plaintiff’s lawyer who will remain nameless and was half drunk when she made the claim.

I’ve lost.  So have you if you’ve been in the business very long at all.  It happens in our professional and personal lives.  As trial lawyers, we find ourselves in the unique situation that when we lose we are not the ones who pay the real price.  We lose money, time, pride and move onto the next case and the next client.  Our clients lose the ability to hold someone responsible for the loss of a loved one, the ability to pay for medical treatment, the ability to care for their family, their children in custody cases, and at times their very freedom.

Who are we fighting?  Primarily we fight bigger, better financed opponents who aren’t burdened with the emotional commitment we have to our clients.  I have never talked to an insurance defense lawyer who worried about the “consequences” to Allstate or State Farm if they lose a case.  Insurance companies and the “State” don’t care that we are fighting out of our weight class and generally are willing to do whatever it takes to win.

So why do we do it?  Why do we fight the fight?  I have friends who claim it’s because they didn’t have the grades in college to get them into medical school.  However, I believe for most of us, our motivation is more than that of taking a “lesser path,” if you could call the agony and ecstasy of being a trial lawyer a lesser path.  We do this for the same reason Muhammad Ali fought George Foreman in 1974.  Foreman was bigger, stronger, younger.  Many worried for Ali’s safety in the fight.  The only person who really believed Ali would win was Ali.  That powerful belief came true.  We do the same every time we take on the establishment!  We believe that the individual has equal footing to the giant corporation.  We believe that just because the State claims someone did something they still have to prove it.  And, just often enough to keep us coming back for more, our belief becomes reality, and the little guy actually does win.

Most times the tyranny of the urgent prevents us from remembering the higher ideals of our profession.  The bills, the family, the deadlines can cause us to put the real reason we do this job on the upper shelf.  ATLA pulls those higher ideals down and dusts them off.  We need to be reminded that while we do this job for a living, by doing our job we allow our clients to continue living.

Imagine a 9-5 job with no purpose.  Selling widgets for some company or pushing paper and finishing TPS reports.  Now be thankful that your job matters.  You matter.  Your clients simply would be lost without you.  That is the reality of our world. 

Now realize that the one organization in this State that fights for your continued ability to take care of your clients is ATLA Tort reform, limits on attorney’s fees, the loss of the jury are all very real threats to our profession and our clients.  Next session the legislature will address some if not all of these issues.  Who will help you in this fight?  ATLA.  Now get out your checkbook and help ATLA fight the political fight.

Why?  Why spend my money for IMPACT.  I mean, it seems ATLA always has its hand out.  IMPACT is for the candidates, that’s all.  IMPACT funds go to support legislators who believe what we belief.  With term limits we have to educate each new crop of Representatives and Senators that come to Little Rock.  IMPACT funds help ensure that we elect lawmakers who will listen to our issues and aren’t beholden to the corporations and the establishment.

Help us.  Help yourself.  And most importantly help your clients.  Foreman hit Ali hard, our opponents hit harder.


Get every new post delivered to your Inbox.