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New York City Medical Malpractice Law Blog

Penalties increase for preventable hospital mistakes

In 1999, the Institute of Medicine released a landmark report about how many people die in hospitals each year due to injuries or infections that are easily understood and highly preventable. More recent reports show that there has been little progress in improving such harm to patients despite clear evidence of risk and known methods of prevention. New York residents can take some comfort in the fact that hospitals may now face dramatically increased penalties for failing to take action.

These penalties may finally affect hospitals' bottom lines and force executives to take notice. Experts have theorized that handling preventable errors was simply not a top priority for hospital management because infection rates rarely if ever caused any change in hospital finances or salaries. The new penalty issued by Medicare is set to change that. Hospitals identified by Medicare as having too high of infection rates will be penalized 1 percent of Medicare payments for the year. This can easily add up to hundreds of thousands of dollars of lost income for major hospitals. Many top hospitals have already seen the fines.

Landmark decision in case involving concierge medicine practice

New York residents may have heard of a growing trend in health care known as concierge medicine practices. In this type of an arrangement, patients pay a membership fee in exchange for receiving what is described by these companies as quicker access to exceptional medical care. Doctors associated with concierge medicine practices are not employed by the practices but pay a fee for services that include branding and advertising. Concierge medical practices maintain that they are simply brokers, but all that may change due to a court decision on Feb. 10 that found a concierge medical practice responsible for a doctor's malpractice.

This case occurred in Florida and concerned a woman with blood clots in her legs that were repeatedly misdiagnosed. Eventually, the woman had to have the leg partly amputated. The company, MDVIP, is the largest concierge medicine practice in the country, and the jury also found the company guilty of false advertising regarding the quality of its physicians and care. The jury awarded $8.5 million to the widower of the woman who suffered the malpractice.

The applicable standard of care in surgery and medical treatment

New York physicians are expected to provide a professional level of expertise, skill, and care when treating patients, and this level of care is referred to as the standard of care. The standards have been refined in more recent years as national exams and certifications have become more available. In times past, leniency in standards was permissible for those in more rural settings, but today, the same standards are in most cases applied throughout the nation.

Standard of care can become an issue in a situation resulting in medical malpractice litigation for surgical errors or other adverse situations arising out of medical treatment or surgery. This standard is used to determine whether a physician has adhered to or deviated from established guidelines. If it can be demonstrated that a medical professional has deviated from the standard, judgement could be rendered on behalf of a injured plaintiff bringing a malpractice claim.

Vacuum delivery complications and risks

While many New York couples experience normal natural births, others experience complications that could put both mother and child at risk. In these situations, a doctor may utilize a vacuum device to assist the mother with the difficult delivery. While vacuum deliveries have a number of advantages, including less need for anesthesia and a reduced risk of soft tissue injuries for the mother, vacuum extractions do have certain risks associated with them when compared to forceps.

While vacuum extractions may be considered safer for the mother over forceps, there is the risk that the delivery could take much longer. This is because the vacuum suction can only be used during contractions whereas forceps can be used without participation from the mother. Additionally, vacuums can only be used on babies that are full-term; using a vacuum on a child that is not at 34 weeks of gestation could cause serious damage.

Doctor involvement in the spread of measles

New York parents may worry about the rising numbers of measles cases as the country is dealing with a January 2015 outbreak of the disease. One of the most common concerns related to the increasing reports of measles is the fact that some parents have refused to vaccinate their children. A 92 percent rate of vaccination is necessary to achieve herd immunity, a status in which those who can't be vaccinated are protected because of the immunity of others. However, medical experts indicate that physicians may be playing a role in allowing the disease to spread as well.

Because measles has been so well-controlled through immunization programs, today's pediatricians don't have a lot of experience in seeing and diagnosing the disease. Symptoms of the disease are typically not evident right away, and it can take an estimated four days after a child becomes contagious for such symptoms to become evident. There are other illnesses that can produce similar symptoms as well.

Risks associated with recieving a transplant

New York residents might be interested in learning more about the surgical errors that can occur while a patient is undergoing a transplant procedure. Mistakes can expose these patients to long-term risks that include several serious health conditions that may not manifest until later on in life. Some of the serious risks commonly associated with transplant procedures include stem cells leading to a relapse of cancer or the development of secondary cancers, infertility, organ damage and other complications.

Researchers say that patients who receive stem cells for cancer treatment are 4 to 11 times more likely to develop a secondary cancer than those who do not receive the transplants. Patients who face the most risk of developing a secondary cancer are the ones who undergo the allogeneic transplants. Lymphomas, specifically the B-cell type, are the cancers most likely to develop within a few months of receiving the transplant.

Nursing home abuse on the rise

New York City residents who have a relative living in a nursing home may be concerned with the rising rates of serious abuse in those facilities around the country. A study conducted by the Special Investigations Division of the House Government Reform Committee found that 30 percent of nursing homes were cited for nearly 9,000 such incidents over a two-year period.

The abuse was serious enough to place residents at risk for death or serious injury, or cause physical harm in 1,601 cases. Some common issues were inadequate hygiene and sanitation, preventable accidents, malnutrition, dehydration, insufficient medical care and untreated bedsores. The report documented incidents in which residents were kicked, choked, punched or slapped by other residents or staff members. Injuries to residents included lacerations and broken bones. The report indicated that the percentage of nursing homes receiving citations for violations has risen each year since 1996.

Benefits and risks when forceps are used during childbirth

Although most expectant mothers will not have to deal with forceps being used during delivery, it is helpful to be aware of this tool in case the need arises. A New York physician may discuss a variety of situations if a baby's weight is significant or if a mother has had a prior difficult delivery because of positioning issues or baby size. Even if these scenarios are not discussed as the due date draws near, an understanding of the process may help with stress if the need arises.

Forceps appear much like salad spoons and are used to guide a baby's head if progress is impeded. A tired mother might reach the point at which she can no longer push. A medical issue could make further pushing risky for the mother or for the child. Signs of stress in the baby might indicate the need for intervention with forceps. An extended period of pushing may also indicate the need for forceps to be used.


The US seller of Benicar, Daiichi Sankyo, Inc., on January 9 agreed to pay a massive fine for paying kickbacks to doctors to induce them to prescribe the drug. The company will pay $39 million to settle claims brought under the Federal False Claims Act, with the money going both to the federal government and various states whose Medicaid program paid for Benicar.

How vicarious liability works in medical malpractice suits

When patients file medical malpractice lawsuits in New York, they could seek compensation from more than just their physicians under the common law theory of respondeat superior. This means that hospitals could be deemed vicariously liable for the negligence of the physicians that they employ. The theory may apply to other negligent employees as well.

For the respondeat superior theory to apply, the employees have to have acted negligently within the scope of their employment. Hospitals could be sued for vicarious liability if the patients were injured while their employees were being paid for time worked, while their employees were doing what they were hired to do, and while the hospitals were benefiting from their employees' actions.

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