Medical Malpractice From A Consumer’s Perspective

A recent article in the Detroit News  describes General Motors’ costs due to medical errors and inefficiencies and GM’s effort to force reform in the Detroit area. The real attention-getter in the article comes from the introduction:

Sam Shalaby is a car guy. He used to run a Delphi components plant in Dayton, and his language is still sprinkled with manufacturing terms 10 years after becoming the muscle behind GM’s health care efforts. He speaks of colonoscopies in terms of price per unit and extols the virtues of “brand management” for medical centers.

For a company man accustomed to having products recalled for minor design flaws, the error-prone American health care system is baffling. On an average day, General Motors Corp. estimates that one person it insures dies because of medical errors, and 40 are sickened by prescription drug mistakes.

The automaker loses about $4 million a day because of medical errors and inefficiencies.

GM data reveal massive differences in quality and price of medical care across regions of the country, and even between hospitals in the same city. What’s worse, hospitals sometimes make more money when they make mistakes because they profit from longer recovery times.

“If we ran an auto plant like they run hospitals, we’d be out of business,” said Shalaby, director of community health initiatives. “The medical system is so obsolete, no one understands how to make it work.”

The article is enlightening. If GM is losing $4 million a day due to errors and inefficiencies, what is the cost to the entire economy?

Troubles at the Food & Drug Administration

Last Friday, the Institute of Medicine, part of the National Academy of Science, released a report titled The Future of Drug Safety: Promoting and Protecting the Health of the Public. According to the IOM’s summary, the report findings include:

There is a perception of crisis that has compromised the credibility of FDA and of the pharmaceutical industry.

Most stakeholders–the agency, the industry, consumer organizations, Congress, professional societies, health care entities–appear to agree on the need for certain improvements in the system.

The drug safety system is impaired by the following factors: serious resource constraints that weaken the quality and quantity of the science that is brought to bear on drug safety; an organizational culture in CDER that is not optimally functional; and unclear and insufficient regulatory authorities particularly with respect to enforcement.

FDA and the pharmaceutical industry do not consistently demonstrate accountability and transparency to the public by communicating safety concerns in a timely and effective fashion.

The report included several recommendations to help alleviate these problems. Those recommendations include:

Labeling requirements and advertising limits for new medications

Clarified authority and additional enforcement tools for the agency

Clarification of FDA’s role in gathering and communicating additional information on marketed products’ risks and benefits

Mandatory registration of clinical trial results to facilitate public access to drug safety information

An increased role for FDA’s drug safety staff

A large boost in funding and staffing for the agency

The New York Times ran an article describing the study and the FDA’s response this weekend.

The FDA, and these problems, are obviously important to the protection of the nation’s health. But they’re also important in drug litigation in Texas. As a result of 2003 legislative changes, drug manufacturers receive a rebuttable presumption that warnings with their drugs were adequate if the FDA approved the warnings. It can be very difficult for injured Texans to overcome this presumption. For example, an injured plaintiff can overcome this presumption by proving that the manufacturer withheld or misrepresented information to the FDA, by showing that the manufacturer continued to sell the product after the FDA ordered it withdrawn from the market, or that the manufacturer promoted or advertised the product for some unauthorized use. This is a complicated area of the law, and if you or someone you know has been injured as a result of medication, you should contact an attorney as soon as possible.

18 Wheeled Dangers — A Series on Texas Trucking Accidents

On a sunny December afternoon, Kim Hughes turned onto State Highway 114 in Wise County and headed west toward home in Paradise. Christmas was eight days away. Four generations were crammed into her GMC Yukon after a morning of holiday shopping.

In the cab of an 18-wheeler leased to TXI Transportation Co., Ricardo Rodriguez drove east on Highway 114, riding herd on 73,000 pounds of truck and a trailerload of sand. An illegal immigrant from Mexico, Mr. Rodriguez had used a fake Social Security number to get a Texas commercial driver’s license six years earlier. He had found steady work around North Texas driving rock trucks and other 18-wheelers, his history of immigration arrests and truck safety violations ignored or overlooked.

Just east of Paradise, on a flat stretch of road, the mom and the trucker met.

Mr. Rodriguez crossed the center line of the two-lane road and barreled head-on toward Ms. Hughes at 60 to 65 mph, a civil jury later concluded. With trees and a creek bed blocking her escape to the right, Ms. Hughes turned left, into the oncoming eastbound lane.

Just then, Mr. Rodriguez turned back toward his lane. Too late, Ms. Hughes swerved right. The Yukon struck the big rig on the driver’s side, scraped along the trailer and spun off the back. A Ford pickup behind the truck smashed into the Yukon, injuring the pickup’s occupants and nearly tearing apart the SUV.

Ms. Hughes’ 14-year-old son, Shiloh, and 70-year-old mother, Joyce Watkins, died almost instantly. Ms. Hughes, 38, and her 17-year-old daughter, Afton Hughes Royse, pregnant with twins, died later in a Fort Worth hospital, without regaining consciousness.

Amid the Christmas presents and holiday treats, the only sounds of life from the shattered SUV were the screams of Afton’s 14-month- old son, Jagr Royse, and the frantic shouts of a female voice on Shiloh’s cellphone.

Mr. Rodriguez climbed from his truck, uninjured.

That story is the beginning of a Dallas Morning News series on the dangers of trucking accidents.  The series confirms what many plaintiff’s attorneys have known for years:  the trucking industry is full of shady practices and abuses.  And while the trucking industry might not be significantly more tainted than other industries, due to the nature of truck accidents, the slightest mistakes can be deadly.  The series is both informative and scary for Texas drivers.

In the first installment of the series, the Morning News stated:

Trucking companies in Texas often gamble on drivers such as Mr. Rodriguez, a seven-month Dallas Morning News investigation has found. They hire illegal immigrants who struggle to read road signs and communicate in English with police and emergency personnel. They hire felons, drunks and drug addicts. Sometimes, they make only cursory checks of work history and driving records, then put the new hires behind the wheel of rigs with the destructive potential of guided missiles.

When accidents occur, trucking companies defend their drivers and often blame other vehicles – and in many cases the dead occupants – regardless of the evidence.  They typically fight any release of information about their drivers and vehicles, and wage protracted battles to avoid blame.

Beyond that, the companies suffer few consequences, in part because the soaring number of trucks on Texas highways are overwhelming regulators and law enforcement officers.

The news in the series’ second installment is not any better for Texas drivers:

If the motoring public knew what was running down the road with them, they’d be really scared,” said Senior Trooper John Pellizzari, a DPS Commercial Vehicle Enforcement officer in Wise County, notorious among state and federal truck inspectors for deadly crashes involving rock haulers.

The third installment features the lack of resources that the Department of Public Safety has to enforce trucking regulations.  The installment notes:

By the time a state investigator visited SDS Trucking Inc. in April 2005, the Midlothian building materials hauler had been in 10 traffic accidents in 12 months. One accident killed a motorcyclist, and four others injured 12 people.

An in-depth examination of the company’s records found enough safety violations to earn SDS a rating of unsatisfactory, the lowest possible in the compliance review system that Texas uses to evaluate trucking company safety. Two months later, the Texas Department of Public Safety ordered SDS to cease operations.

Research suggests that the threat of shutdown implicit in a compliance review reduces truck-related accidents and saves lives. One expert called compliance reviews “the nuclear weapon” of safety enforcement.

DPS officials, too, regard compliance reviews as one of their most effective tools in improving the safety performance of high-risk motor carriers.

But last year in Texas – which leads the nation every year in deaths from large-truck accidents – DPS completed compliance reviews for only one of every 10 companies it identified as the biggest potential dangers on the road.

Unfortunately, it only appears that things will get worse before they get better.  In the Texas Dept. of Transportation Motor Carrier Division’s 2005 annual report, the division stressed the increasing demands of the trucking industry.  For example, nationwide in 2005 there were 250,000 new trucks added to the nation’s fleet, and registered intrastate carriers increased almost 50% from 2000 to 2005.  The report continued to emphasize the the demands of the transportation industry are outstripping the state’s ability to meet those demands, particularly when examined in terms of traffic congestion slowing transportation.  As these demands increase, it’s likely that carriers will find new ways to cut corners to do their job.

The Black Box — on your car

Almost everyone has heard about investigators searching for the “black box” after a plane crash.  What few people know is that many vehicles on the road today have similar capabilities.  That could change.  The National Highway Traffic Safety Administration announced yesterday that, beginning with year 2011 models, manufacturers will have to disclose the existence of black box technology in their vehicles. 

Almost 65% of the 2005 model year vehicles included black boxes.  These boxes typically collect the speed of the vehicle, whether brakes were applied, whether airbags deployed, whether signal devices were used, and the Delta V (or change in velocity) of the vehicle at a point of collision. 

There are numerous philosophical discussions about the use of black box technology and whether it infringes on the public’s right to privacy.  Regardless of those debates, black box investigation has become very popular in serious vehicle collision cases where the cause of the wreck is controverted.  The data is particularly helpful when the victim is killed and not able to controvert the other driver’s version of the wreck.  

Unfortunately, the data in black box recorders can be written over if not timely retrieved.  Therefore, it is critical to quickly contact an attorney or expert so a qualified person can retrieve the data while it is still there.  

Spine University

Many of our personal injury and medical malpractice clients suffer from some type of back issues.  An orthopedic group has set up an online Spine University that provides a wealth of information that clients might find helpful.  The site includes information on the structure of the back, tests, and medical care for various back conditions set out in plain, easy-to-understand language.  If you or a loved one has back problems, it is worth checking out.

Who (or what) is valuing your personal injury claim?

For the last several years, personal injury attorneys (and many insurance company adjusters) have been lamenting about the insurance industry’s use of a computer program, Colossus, to value claims.  Colossus, used by most insurance companies, requires the adjuster to enter information about the claim and then spits out a maximum settlement value.  The insurance companies have given adjusters little, if any, discretion to settle cases for more than the Colossus value.  Insurance companies have tried to keep the operation of Colossus a secret, even going so far as to suing former employees who were attempting to educate attorneys on the operation of Colossus.   Using the little we do know, we have adjusted the way our claims are submitted to try and maximize the value that Colossus provides for our clients’ cases. But on a whole, Colossus still undervalues cases by approximately twenty percent.

Recent bad faith cases against insurance companies have resulted in more disclosure about the program.  Criticism of Colossus has spread from just the legal community to the popular press, including recent articles in Business Week and other papers.  With any luck, the increased publicity will help pressure the insurance companies into making changes to Colossus.