Persistence Is The Cure For An Evasive Witness

Taking the deposition of a defendant doctor in a malpractice case can be tricky, no matter how much experience you have in medical malpractice litigation. After all, as a general rule, the doctor has the upper hand. He/she is trained in medicine and most of us are not. Even if the attorney has medical training, the doctor will always know WAY more about what happened than we ever will.

The reason for this is simple: the medical records never tell the whole story. Many times they are incomplete, fudged, sanitized, and in some cases, altered. Like a glacier that's 5% exposed to the naked eye and 95% underwater, virtually every medical malpractice case involves plunging below the surface of the medical records into the deeper abyss of what really happened. .

Because the advantages lie with the defendant doctor, there is ample opportunity to evade, "clarify," or "explain" what truly happened, no matter what the "official" records say.

Case in point: in a recent Ohio medical malpractice lawsuit, we claimed that a physician was negligent or "fell below the standard of care" for not immediately applying an Ambu Bag (a bag that manually forces air into a patient's lung when squeezed) to a patient in severe respiratory depression due to anesthesia drugs that had paralyzed the patient's breathing after an outpatient procedure. The recovery nurse did an excellent job of documenting the patient's extremely how blood pressure, heart rate, and lack of consciousness upon arrival to the recovery room or PACU.

We claimed that the rules of good medical care required the physician to take immediate action and force air into the patient's lungs with the Ambu Bag to take over breathing for the patient. The nurse had documented that four crucial minutes had gone by before the physician finally began to use the Ambu Bag to attempt to breathe for the patient.

It was our experts' opinion that allowing four minutes of not taking over breathing for an unconscious, anesthesisa drug-paralyzed patient was a clear breach of the rules of good medical care, and sadly led to her anoxic brain damage due to a lack of oxygen.

There was a lot more to this story, but the Ambu bag delay was one of the main issues.

When it came time for the doctor's deposition, I anticipated the defense that the Ambu bag was used "immediately" after the patient's ominous vital signs were discovered, despite what the nurse had documented to the contrary. I expected that the physician would claim that the nurse's documentation of a four minute delay was incorrect or wrong. Sure enough, that's what the doctor said at the deposition.

But one of my lines of questioning was to get the doctor to admit that if the nurse's documentation of a four minute delay WAS accurate, the doctor was negligent. Below is a portion of the transcript addressing this issue:

Q. If an Ambu bag were immediately available, okay, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and the time an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?

A. I would take issue with the times, and I don't know -- I ventilated the patient when I felt ____ needed it.

Q. Okay. I understand that, but my question was very specific. I'm going to repeat it. If an Ambu bag was immediately available, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and when an Ambu bag with positive pressure ventilation was applied, does that violate the standard of care?

MR. _______: Objection; asked and answered. Go ahead, you may answer it again.

MR. WILSON: It was not answered.

MR._______: It was. Go ahead, you may answer again.

A. I ventilated the patient when my, when I felt that there was a real problem. We immediately -- a lot of things were happening. Resuscitation was started immediately on receiving these vital signs, four vital signs.

Q. With all due respect, Dr.__________, my question wasn't answered. I would like an answer to the question. If there was a 4-minute delay between ______'s signs that we went over and when an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?

A. I guess I would have to say yes.

To be honest, extracting this admission involved no secret or "Jedi mind trick" ("These aren't the drones you're looking for"---one of my favorite Star Wars lines but I digress)--at least among Ohio medical malpractice lawyers who've been to this rodeo a time or two. To be sure, no one admission at a deposition will win the day.

But it is proof that listening closely to the question--AND persistence in a firm, respectful way-- can pay off. More importantly, it can serve to simplify or narrow the myriad of issues that a jury will ultimately decide.

        

   

Ohio Wrongful Death Claims And Bankruptcy

What happens if you pursue or have filed an Ohio wrongful death lawsuit on behalf of a deceased loved one, but are considering or have to file for personal bankruptcy before the lawsuit is settled or before you win the wrongful death case?

Answer: it gets complicated. Example: wife dies due to an auto accident or medical malpractice. Husband files a wrongful death lawsuit on behalf of his deceased wife and any dependent children. If husband then files for personal bankruptcy, the husband's share of wrongful death claim and any potential recovery becomes an asset of the bankruptcy estate. Translation: if the husband makes a recovery of money through a wrongful death settlement or verdict, those proceeds can potentially be reached by his bankruptcy creditors. In fact, the bankruptcy trustee ( the person appointed to represent the interests of your creditors during your bankruptcy case) has the right to hire separate counsel to pursue the wrongful death claim on behalf of the bankruptcy estate.

Can the bankruptcy trustee take 100% of the husband's wrongful death proceeds in our example? This is where state law applies. Under Ohio law, there is an exemption  for:

"a payment on account of the wrongful death of an individual of whom the person was a dependent on the date of the individual's death, to the extent reasonably necessary for the support of the person and any of the person's dependents."

This means the husband and any other dependents (children) would be albe to retain some of the wrongful death proceeds for support of himself and any of the children. The amount of this figure would probably be within the bankruptcy judge's discretion.

As to any dependent children, they would have their own separate claim in the wrongful death lawsuit for the loss of love, companionship, and affection/guidance bacause of their mother's death, and in my opinion, any wrongful death proceeds they recover would not be subject to the reach of their father's creditors in bankruptcy court.

There's more to it than this but that's the down and dirty summary. Obviously, to navigate both the wrongful death claim and any potential bankruptcy require attorneys with knowledge of how all these laws intersect.

Medical Care In Hospitals: "Copy And Paste?"

Electronic medical records (EMR's) have been hailed as the greatest thing since the X Ray in medical circles. For those unfamiliar, they are replacing the age old handwritten records with entries entered  and stored on a computer. The theory is that gone are the days of chicken scratch handwriting, and an added benefit is electronic access to a patient's medical chart from remote areas outside the hospital, for example.

The reality is not matching the hype. First, simply reading and dechpihering electronic medical records in Ohio personal injury and malpractice cases we investigate has often become the equivalent of cracking a WW II German Enigma Machine message (used for the encryption and decryption of secret messages for those interested in useless trivia).

It can be a maddening exercise, due to the fact that there is a ton of repetitive "programming" information repeated on many pages of a patient's chart. Looking for anything of substance is like finding a needle in a haystack. It may make sense to the Information Technology guys and gals who developed this software, but for anyone else it's maddening.

And now this: EMR's have begun to foster a widespread practice of medical personnel "copying and pasting" a patient's previous diagnosis or vital signs and may be affecting patient care. According to a recent medical study in Ohio, 82% of residents' notes and 74% of attending physicians' notes included 20% or more copied and pasted material from the patients' records.” The study of 135 patients' records utilized plagerism detection software to pick up on this alarming practice. In one case:

“...a patient left the ICU and was readmitted a couple of days later. The patient's medical record included so much copied and pasted information, the new team of doctors wasn't able to decipher the original diagnosis. In the end, the new team called the physicians who originally diagnosed the patient.”

So--too busy to re-check the patient's vital signs and whether he or she is getting better or worse two or three hours after a physician's order? Just copy and paste the previous vital signs into the patient's record and move on. Don't think this happens? Think again. This study is spot on with what we are seeing with our own eyes as we review electronic records in our own practice.

Simply put, this new technology is subject to being abused in a hospital or other setting where patients are being moved through a system. We need no study to know that the practice of medicine has become a volume business. New technology can be a good thing and EMR's are no different, as they bring many benefits to the table regarding patient care. But like any new technology, it is subject to abuse.

It is admirable that certain medical professionals are beginning to address a problem we already are beginning to see: "copy and paste" medical care and treatment.