In a controversial ruling that could have national ramifications, the Illinois Supreme Court Thursday overturned the state’s cap on damages for pain and suffering for medical malpractice, deeming the limit unconstitutional. http://www.state.il.us/court/OPINIONS/recent_supreme.asp
In the decision, which critics said will lead to higher damage awards, the high court voted 4-to-2 to throw out the limits on “non-economic” damages that can be recovered in malpractice suits. The Illinois cap had put a $500,000 maximum on damages that could be collected from physicians and $1 million from hospitals.
In its ruling, the court said that the 2005 law violated the Illinois constitution regarding separation of powers. The Court ruled that this law gave the lawmakers control of decisions that should be in the hands of judges and juries.
This marks the third time that the Illinois Supreme Court has overturned malpractice-award caps that lawmakers had enacted in the state.
http://www.chicagotribune.com/business/ct-biz-medical-malpractice-cap-feb04,0,348689.story
The test case that prompted the ruling is that of Abigaile Lebron, now 4, who sustained severe brain damage when she was born through a Caesarian section procedure in 2005. Her family sued a doctor and Gottlieb Memorial Hospital in Melrose Park, Ill., for medical negligence, charges that the physician and hospital deny.
The Wall Street Journal reported that the girl suffered from “cerebral palsy and other impairments.” http://online.wsj.com/article/SB10001424052748703357104575045624066646704.html?mod=googlenews_wsj
The young girl, Abigaile, is now wheelchair-bound.
In Thursday’s ruling, Illinois Chief Justice Thomas Fitzgerald wrote in the majority opinion that the court was not swayed by the fact that many states have imposed malpractice-award caps.
“That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute,” Fitzgerald wrote. http://www.chicagotribune.com/news/chi-ap-il-medicalmalpractic,0,4062339.story
But in a dissent, Justice Lloyd Karmeier wrote, “We have no business telling the General Assembly that it has exceeded its constitutional power if we must ignore the constitutional constraints on our own authority to do so.”
The Illinois high court’s decision drew fire from a variety of sources. The American Medical Association (AMA) immediately criticized the ruling.
“Today’s court decision threatens to undo all that Illinois patients and physicians have gained under the cap, including greater access to health care, lower medical liability rates and increased competition among medical liability insurers,” AMA President Dr. James Rohack said in a statement.
The New York Times noted that the Illinois decision “held a particular sting” for the AMA, since it is headquartered in Chicago. http://www.nytimes.com/2010/02/05/us/05malpractice.html
And The Chicago Tribune blasted the ruling in an editorial, warning, “This is a disastrous decision…Watch out for what happens now.” http://www.chicagotribune.com/news/opinion/editorials/ct-edit-medmal-20100204,0,5948924.story
“Malpractice costs were skyrocketing in Illinois because insurers were afraid to do business here,” The Tribune editorial said. “They were afraid of runaway jury verdicts…Malpractice premiums in Illinois were particularly egregious for doctors in riskier specialties such as obstetrics and neurosurgery. As a result, doctors were leaving, particularly doctors in rural areas. They couldn’t afford to practice in their communities. That made it more difficult for patients to find the care they needed. The 2005 law eased the crisis. Malpractice premiums declined. The exodus of doctors stopped.”
But opponents of malpractice-award caps, which are being considered by lawmakers in Washington, were jubilant.
The American Association for Justice, once called the Association of Trial Lawyers for America, said the Illinois ruling showed “why federal efforts to put arbitrary limits on the amount injured patients receive won’t pass muster or fix America’s broken health system,” The Times reported.
The Illinois Trial Lawyers Association also lauded the ruling.
“The Illinois Supreme Court has decided that the health-care crisis can not be solved by further hurting the patients who are victims of medical errors,” the lawyers’ group said in a statement.
The Illinois ruling could reverberate to the Capitol, where Republican lawmakers have called for federal caps on malpractice awards. The health-care reform House bill that Congress Democrats passed last year, and the Senate health-care bill, do not mandate any big change to malpractice rules, according to The Times.
Almost 30 states have set caps that put a maximum on non-economic damages, namely damages for pain and suffering, Reuters reported. http://www.reuters.com/article/idUSN0411041820100204
Those caps range from $250,000 to $700,000, according to the Robert Wood Johnson Foundation.
The AMA said that in 16 states courts have upheld the caps. In 11 states the limits have been thrown out.
Generally, these Caps have done little to lower rates. But whether rates are lowered or not is not the central issue. The issue is whether doctors should be given a free pass on killing and maiming those that suffer because of their mistakes. Despite the constant right wing hysteria over med mal awards, the reality is that only the most egregious conduct by doctors results in a lawsuit, and about 85-90% of even those lawsuits, result in verdicts for the doctors. A doctor has to do something truly outrageous to wind up losing a medical malpractice case.
What is violative of equal protection about a malpractice cap, is that it punishes those most severely hurt by the worst conduct of doctors. If a doctor say cuts off the wrong toe, the compensation cap of $250,000 might be adequate. But if the doctor’s wrongful conduct results in loss of the normal use of a brain, then $250,000 is not justice. Yet a cap imposes the worst injustice on those who have the worst harm. That is unfair and unjust.
The ‘Choking Game’ The Latest Fad For Parents To Lose Sleep Over
I spend my entire career trying to get justice for those who have suffered brain damage because of the wrongful conduct of others. How frustrating for me as a lawyer, how scary for me as a parent to read about the latest phenomenon among our young people. The so-called “choking game” has become such a concern that newspapers across the country have been writing about it, including The New York Times and The Star-Ledger of Newark. N.J., last week.
Although the choking game may be a mystery to you, it may not be one to your kids, as The Times points out in its story, http://www.nytimes.com/2010/01/23/health/research/22choke.html?scp=1&sq;=brain%20damage&st;=cse.
The practice, which can lead to brain damage, is also know as “pass out” or “space monkey,” according to the Ledger’s story, http://www.nj.com/parenting/lee_lusardiconnor/index.ssf/2010/01/the_choking_game_should_you_question_your_kids.html.
In the choking game pressure is applied to the neck, by oneself using a belt or scarf, or someone else doing it. The brain’s lack of oxygen leads to a euphoria or “high” for the person being strangled. Some go so far as to seek to become unconscious, because when they come to they get another high.
But it can be a deadly game at the very worse, and cause brain damage at the worse. The “game” has been blamed dozens of adolescent deaths across the country, according to The Times.
A new statewide survey, from Oregon, sparked the recent press coverage of the phenomenon. The rather astounding results published by The Times were that one in three eighth graders in Oregon have heard of the choking game, and 1 in 20 have taken part in it. Youths in rural areas were more likely to have tried it.
The not-so-fun choking game has caused an estimated 82 deaths from 1995 to 2007, according to s survey by the Centers for Disease Control and Prevention, The Times reported. Most of those deaths were of males 11 to 16 years.
Although the choking game may be a mystery to you, it may not be one to your kids, as The Times points out in its story, http://www.nytimes.com/2010/01/23/health/research/22choke.html?scp=1&sq;=brain%20damage&st;=cse.
The practice, which can lead to brain damage, is also know as “pass out” or “space monkey,” according to the Ledger’s story, http://www.nj.com/parenting/lee_lusardiconnor/index.ssf/2010/01/the_choking_game_should_you_question_your_kids.html.
In the choking game pressure is applied to the neck, by oneself using a belt or scarf, or someone else doing it. The brain’s lack of oxygen leads to a euphoria or “high” for the person being strangled. Some go so far as to seek to become unconscious, because when they come to they get another high.
But it can be a deadly game at the very worse, and cause brain damage at the worse. The “game” has been blamed dozens of adolescent deaths across the country, according to The Times.
A new statewide survey, from Oregon, sparked the recent press coverage of the phenomenon. The rather astounding results published by The Times were that one in three eighth graders in Oregon have heard of the choking game, and 1 in 20 have taken part in it. Youths in rural areas were more likely to have tried it.
The not-so-fun choking game has caused an estimated 82 deaths from 1995 to 2007, according to s survey by the Centers for Disease Control and Prevention, The Times reported. Most of those deaths were of males 11 to 16 years.
Rapid rise seen in fatal medication errors at home
Date: 07/28/2008 04:04 PM
By CARLA K. JOHNSON
Associated Press Writer
CHICAGO (AP) _ Deaths from medication mistakes at home, like actor Heath Ledger’s accidental overdose, rose dramatically during the past two decades, an analysis of U.S. death certificates finds.
The authors blame soaring home use of prescription painkillers and other potent drugs, which 25 years ago were given mainly inside hospitals.
“The amount of medical supervision is going down and the amount of responsibility put on the patient’s shoulders is going up,” said lead author David P. Phillips of the University of California, San Diego.
The findings, based on nearly 50 million U.S. death certificates, are published in Monday’s Archives of Internal Medicine. Of those, more than 224,000 involved fatal medication errors, including overdoses and mixing prescription drugs with alcohol or street drugs.
Deaths from medication mistakes at home increased from 1,132 deaths in 1983 to 12,426 in 2004. Adjusted for population growth, that amounts to an increase of more than 700 percent during that time.
In contrast, there was only a 5 percent increase in fatal medication errors away from home, including hospitals, and not involving alcohol or street drugs.
Abuse of prescription drugs plays a role, but it’s unclear how much. Valid prescriptions taken in error, especially narcotics such as methadone and oxycodone, account for a growing number of deaths, said experts who reviewed the study.
The increases coincided with changing attitudes about painkillers among doctors who now regard pain management as a key to healing. Multiple prescription drugs taken at once — like the sleeping pills, painkillers and anxiety drugs that killed “Dark Knight” star Ledger — also play a part, experts said.
“When we see overdoses, we’re seeing many more mixed drug overdoses,” said Dr. Jeffrey Jentzen, president of the National Association of Medical Examiners and director of autopsies at the University of Michigan in Ann Arbor. Jentzen said autopsies are much more likely to include toxicology tests today than 25 years ago, which would contribute to finding more fatal medication errors as cause of death.
But Phillips said there were no significant increases in other poisonings like suicidal overdoses or homicides, so more testing doesn’t explain the huge increase. The analysis excluded suicides, homicides and deaths related to side effects.
The increase was steepest in death rates from mixing medicine with alcohol or street drugs at home; that death rate climbed from 0.04 per 100,000 people in 1983 to 1.29 per 100,000 people in 2004.
Many patients ignore the risk of mixing alcohol with prescriptions, said Cynthia Kuhn of Duke University Medical Center, who was not involved in the study.
“They think, ‘Oh, one drink won’t hurt.’ Then they have three or four,” Kuhn said.
The increase in deaths was highest among baby boomers, people in their 40s and 50s.
“We’re sort of drug happy,” said boomer Dr. J. Lyle Bootman, the University of Arizona’s pharmacy dean, who was not involved in the research. “We have this general attitude that drugs can fix everything.”
People share prescriptions at an alarming rate, Bootman said. One recent study found 23 percent of people say they have loaned their prescription medicine to someone else and 27 percent say they have borrowed someone else’s prescription drugs.
Kenneth Kolosh, a statistics expert at the National Safety Council, praised the study but said improved attention to coding location on death certificates may account, in part, for the huge increases the researchers found.
Phillips countered that home deaths from any cause increased relatively little during the time period, so better coding doesn’t explain the change.
Michael R. Cohen, president of the Institute for Safe Medication Practices, said more states should require pharmacists to teach patients about dangerous drugs and insurers should pay pharmacists to do so.
___
On the Net:
Archives of Internal Medicine: http://www.archinternmed.com
Copyright 2008 The Associated Press.
By CARLA K. JOHNSON
Associated Press Writer
CHICAGO (AP) _ Deaths from medication mistakes at home, like actor Heath Ledger’s accidental overdose, rose dramatically during the past two decades, an analysis of U.S. death certificates finds.
The authors blame soaring home use of prescription painkillers and other potent drugs, which 25 years ago were given mainly inside hospitals.
“The amount of medical supervision is going down and the amount of responsibility put on the patient’s shoulders is going up,” said lead author David P. Phillips of the University of California, San Diego.
The findings, based on nearly 50 million U.S. death certificates, are published in Monday’s Archives of Internal Medicine. Of those, more than 224,000 involved fatal medication errors, including overdoses and mixing prescription drugs with alcohol or street drugs.
Deaths from medication mistakes at home increased from 1,132 deaths in 1983 to 12,426 in 2004. Adjusted for population growth, that amounts to an increase of more than 700 percent during that time.
In contrast, there was only a 5 percent increase in fatal medication errors away from home, including hospitals, and not involving alcohol or street drugs.
Abuse of prescription drugs plays a role, but it’s unclear how much. Valid prescriptions taken in error, especially narcotics such as methadone and oxycodone, account for a growing number of deaths, said experts who reviewed the study.
The increases coincided with changing attitudes about painkillers among doctors who now regard pain management as a key to healing. Multiple prescription drugs taken at once — like the sleeping pills, painkillers and anxiety drugs that killed “Dark Knight” star Ledger — also play a part, experts said.
“When we see overdoses, we’re seeing many more mixed drug overdoses,” said Dr. Jeffrey Jentzen, president of the National Association of Medical Examiners and director of autopsies at the University of Michigan in Ann Arbor. Jentzen said autopsies are much more likely to include toxicology tests today than 25 years ago, which would contribute to finding more fatal medication errors as cause of death.
But Phillips said there were no significant increases in other poisonings like suicidal overdoses or homicides, so more testing doesn’t explain the huge increase. The analysis excluded suicides, homicides and deaths related to side effects.
The increase was steepest in death rates from mixing medicine with alcohol or street drugs at home; that death rate climbed from 0.04 per 100,000 people in 1983 to 1.29 per 100,000 people in 2004.
Many patients ignore the risk of mixing alcohol with prescriptions, said Cynthia Kuhn of Duke University Medical Center, who was not involved in the study.
“They think, ‘Oh, one drink won’t hurt.’ Then they have three or four,” Kuhn said.
The increase in deaths was highest among baby boomers, people in their 40s and 50s.
“We’re sort of drug happy,” said boomer Dr. J. Lyle Bootman, the University of Arizona’s pharmacy dean, who was not involved in the research. “We have this general attitude that drugs can fix everything.”
People share prescriptions at an alarming rate, Bootman said. One recent study found 23 percent of people say they have loaned their prescription medicine to someone else and 27 percent say they have borrowed someone else’s prescription drugs.
Kenneth Kolosh, a statistics expert at the National Safety Council, praised the study but said improved attention to coding location on death certificates may account, in part, for the huge increases the researchers found.
Phillips countered that home deaths from any cause increased relatively little during the time period, so better coding doesn’t explain the change.
Michael R. Cohen, president of the Institute for Safe Medication Practices, said more states should require pharmacists to teach patients about dangerous drugs and insurers should pay pharmacists to do so.
___
On the Net:
Archives of Internal Medicine: http://www.archinternmed.com
Copyright 2008 The Associated Press.
La. doctor cleared in patient deaths recalls storm
Date: 07/20/2008 01:54 PM
By MARY FOSTER
Associated Press Writer
NEW ORLEANS (AP) _ Trapped in a hospital with 2,000 people in the aftermath of Hurricane Katrina, Dr. Anna Pou recalls her throat burning from the rancid smell.
Toilets had backed up and temperatures in the eight-story building reached almost 110 degrees because the windows didn’t open. Power had failed, levees broke and 80 percent of New Orleans was flooded, including the hospital basement where the generators were.
It was completely dark at night. Stories of murders, gangs raping women and children circulated through Memorial Medical Center, where the people, including more than 200 patients, feared for their lives.
Pou, the doctor accused — and later cleared — of giving lethal doses of drugs to four patients during the chaos recalled the four days of misery in a recent interview with The Associated Press. It was her most detailed account of the scene where 34 patients died since the storm three years ago.
“You can’t really understand what it was like if you weren’t there,” Pou said. “Nothing can describe it.”
It began as a typical weekend for Pou, who wasn’t worried when she made her way to Memorial in August 2005.
Hurricane Katrina appeared headed to Florida. Even when warnings were issued for New Orleans, the respected cancer surgeon never thought of leaving. She stayed with her patients in what would become a personal and professional hell.
After the storm passed Monday, Aug. 29, it seemed the decision not to evacuate patients and staff was a good one. They didn’t know levees were collapsing.
“We made it through the storm pretty good,” Pou remembered. “On Monday, it was just a little hot, but we had some generators working and food and water twice a day.”
By Tuesday, water was rising in the streets, eventually reaching 10 feet. The hospital basement flooded and the generators failed.
When nightfall came, the hospital and the city were in darkness. Water pressure dropped, toilets backed up and the temperatures began to swelter.
“The smell got to be rancid in no time,” Pou said. “It burned the back of your throat.”
The deteriorating situation had dire consequences. Those trapped in the hospital could hear voices in the dark. People had broken into a credit union office across the street and holed up there.
“We started hearing stories about murders, about gangs raping women and children,” Pou said. “The women that had their children there were really scared.”
They had a few flashlights but no spare batteries.
“One of the nurses showed me how to bump my foot against the next step to find it,” Pou said. “We counted the steps from one floor to another so we wouldn’t miss one and fall.”
Pou said staff struggled to climb stairwells, carry supplies, and spent two-hour shifts squeezing ventilators to keep patients alive.
“The heat was so terrible, it wore you down,” Pou said. “We were trying to keep the patients comfortable. The 9-year-old daughter of one of the nurses even took shifts fanning them.”
Airboats evacuated some patients and babies from the nursery, but most remained. All Pou said she could do was try to keep critically ill patients comfortable.
“Tuesday night was when we realized we were going to be there for a while,” Pou said.
They gathered supplies, rationed food and water with non-patients, and prayed.
About seven medical staffers, including Pou, stayed with patients. Others went to the roof and the ground floor to coordinate the intermittent rescue efforts with the few boats and helicopters that showed up.
“When a helicopter left, we never knew if they would be back,” Pou recalled. “They might be sent to another rescue. And after dark it was too dangerous for them to fly at all.”
Under the military’s orders, the staff did reverse triage. The healthiest patients were taken out first in an effort to save the greatest number of people.
Many had to be carried to the roof. It was slow, backbreaking work, with as many as 10 people struggling up the dark stairs with a stretcher. At least 34 people died waiting for rescuers.
Pou was one of the last to leave Memorial. She returned to New Orleans — her house had not been flooded — from Baton Rouge a few months later at Thanksgiving. In January 2006, she started working at a Baton Rouge hospital, trying to put Katrina behind her.
Then, in July 2007, she was greeted by four police officers on her arrival home from a 13-hour day of surgery. They handcuffed her, still in her scrubs, and drove her to jail. She was booked on four counts of second-degree murder.
Attorney General Charles Foti accused Pou and two nurses of using a “lethal cocktail” of medication to kill four elderly patients. Pou has always maintained she killed no one during those desperate days, though she acknowledges patients were sedated.
She was forced to give up private practice and started teaching at the LSU medical school in Baton Rouge.
Months of pain and frustration set in.
A year after their arrest, the New Orleans district attorney dropped charges against the nurses, and a grand jury refused to indict Pou. Two civil lawsuits in the deaths are pending.
“I felt very alone,” Pou said of her year of fighting the criminal accusations. “Even if people were around me I felt an intense loneliness. It was as if no one knew what I was going through.”
Pou’s supporters believed she and the nurses acted heroically. A group of doctors and nurses held a rally on the anniversary of her arrest, and hundreds turned in support.
Her experience helped her get landmark state legislation approved to protect the actions of doctors and nurses during disasters.
“It was that support and prayer that got me through it,” said Pou, who is back in private practice.
As Katrina’s third anniversary nears, Pou said the experience was life-altering.
“I’ve learned a lot from this,” she said. “I thought I had suffered at times in my life, but I had no ideal the depths of pain one person could feel. I think that has made me a better person and certainly a more compassionate doctor.”
Copyright 2008 The Associated Press.
By MARY FOSTER
Associated Press Writer
NEW ORLEANS (AP) _ Trapped in a hospital with 2,000 people in the aftermath of Hurricane Katrina, Dr. Anna Pou recalls her throat burning from the rancid smell.
Toilets had backed up and temperatures in the eight-story building reached almost 110 degrees because the windows didn’t open. Power had failed, levees broke and 80 percent of New Orleans was flooded, including the hospital basement where the generators were.
It was completely dark at night. Stories of murders, gangs raping women and children circulated through Memorial Medical Center, where the people, including more than 200 patients, feared for their lives.
Pou, the doctor accused — and later cleared — of giving lethal doses of drugs to four patients during the chaos recalled the four days of misery in a recent interview with The Associated Press. It was her most detailed account of the scene where 34 patients died since the storm three years ago.
“You can’t really understand what it was like if you weren’t there,” Pou said. “Nothing can describe it.”
It began as a typical weekend for Pou, who wasn’t worried when she made her way to Memorial in August 2005.
Hurricane Katrina appeared headed to Florida. Even when warnings were issued for New Orleans, the respected cancer surgeon never thought of leaving. She stayed with her patients in what would become a personal and professional hell.
After the storm passed Monday, Aug. 29, it seemed the decision not to evacuate patients and staff was a good one. They didn’t know levees were collapsing.
“We made it through the storm pretty good,” Pou remembered. “On Monday, it was just a little hot, but we had some generators working and food and water twice a day.”
By Tuesday, water was rising in the streets, eventually reaching 10 feet. The hospital basement flooded and the generators failed.
When nightfall came, the hospital and the city were in darkness. Water pressure dropped, toilets backed up and the temperatures began to swelter.
“The smell got to be rancid in no time,” Pou said. “It burned the back of your throat.”
The deteriorating situation had dire consequences. Those trapped in the hospital could hear voices in the dark. People had broken into a credit union office across the street and holed up there.
“We started hearing stories about murders, about gangs raping women and children,” Pou said. “The women that had their children there were really scared.”
They had a few flashlights but no spare batteries.
“One of the nurses showed me how to bump my foot against the next step to find it,” Pou said. “We counted the steps from one floor to another so we wouldn’t miss one and fall.”
Pou said staff struggled to climb stairwells, carry supplies, and spent two-hour shifts squeezing ventilators to keep patients alive.
“The heat was so terrible, it wore you down,” Pou said. “We were trying to keep the patients comfortable. The 9-year-old daughter of one of the nurses even took shifts fanning them.”
Airboats evacuated some patients and babies from the nursery, but most remained. All Pou said she could do was try to keep critically ill patients comfortable.
“Tuesday night was when we realized we were going to be there for a while,” Pou said.
They gathered supplies, rationed food and water with non-patients, and prayed.
About seven medical staffers, including Pou, stayed with patients. Others went to the roof and the ground floor to coordinate the intermittent rescue efforts with the few boats and helicopters that showed up.
“When a helicopter left, we never knew if they would be back,” Pou recalled. “They might be sent to another rescue. And after dark it was too dangerous for them to fly at all.”
Under the military’s orders, the staff did reverse triage. The healthiest patients were taken out first in an effort to save the greatest number of people.
Many had to be carried to the roof. It was slow, backbreaking work, with as many as 10 people struggling up the dark stairs with a stretcher. At least 34 people died waiting for rescuers.
Pou was one of the last to leave Memorial. She returned to New Orleans — her house had not been flooded — from Baton Rouge a few months later at Thanksgiving. In January 2006, she started working at a Baton Rouge hospital, trying to put Katrina behind her.
Then, in July 2007, she was greeted by four police officers on her arrival home from a 13-hour day of surgery. They handcuffed her, still in her scrubs, and drove her to jail. She was booked on four counts of second-degree murder.
Attorney General Charles Foti accused Pou and two nurses of using a “lethal cocktail” of medication to kill four elderly patients. Pou has always maintained she killed no one during those desperate days, though she acknowledges patients were sedated.
She was forced to give up private practice and started teaching at the LSU medical school in Baton Rouge.
Months of pain and frustration set in.
A year after their arrest, the New Orleans district attorney dropped charges against the nurses, and a grand jury refused to indict Pou. Two civil lawsuits in the deaths are pending.
“I felt very alone,” Pou said of her year of fighting the criminal accusations. “Even if people were around me I felt an intense loneliness. It was as if no one knew what I was going through.”
Pou’s supporters believed she and the nurses acted heroically. A group of doctors and nurses held a rally on the anniversary of her arrest, and hundreds turned in support.
Her experience helped her get landmark state legislation approved to protect the actions of doctors and nurses during disasters.
“It was that support and prayer that got me through it,” said Pou, who is back in private practice.
As Katrina’s third anniversary nears, Pou said the experience was life-altering.
“I’ve learned a lot from this,” she said. “I thought I had suffered at times in my life, but I had no ideal the depths of pain one person could feel. I think that has made me a better person and certainly a more compassionate doctor.”
Copyright 2008 The Associated Press.