Do most nursing home residents who are prescribed the drug Nuedexta need it? It turns out, probably not. But many elderly nursing home residents are being given the drug, with potentially deadly consequences.
Nuedexta is a little red pill that is approved for a rare condition that causes sudden, uncontrollable, and inappropriate laughing and crying. It’s called pseudobulbar affect, or PBA. You may have seen Danny Glover in the commercials for the drug.
But few people have this condition. In fact, fewer than 1% of the population has this condition. And almost all people who do have pseudobulbar affect have neurological conditions called ALS (Lou Gehrig’s disease) or multiple sclerosis.
According to a recent report conducted by CNN, “[t]here has to be a diagnosis for every drug prescribed, and that diagnosis has to be real … it cannot be simply made up by a doctor,” said Kathryn Locatell, a geriatric physician who helps the California Department of Justice investigate cases of elder abuse in nursing homes. “There is little to no medical literature to support the drug’s use in nursing home residents (with dementia) — the population apparently being targeted.”
A high pressure marketing campaign driven by an aggressive sales force and big money has convinced doctors to prescribe Nuedexta to patients with Alzheimer’s and dementia. But Alzheimer’s and dementia are completely different conditions fromhttp://www.cnn.com/2017/10/12/health/nuedexta-nursing-homes-invs/index.html PBA and they probably don’t need this medication.
Recent investigations have shown that “Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. Total sales of Nuedexta reached almost $300 million that year.”
“Thousands of the doctors prescribing Nuedexta have received money, or at least a meal, from its maker — a legal but controversial practice in the industry. Between 2013 and 2016, Avanir and its parent company, Otsuka, paid doctors nearly $14 million for Nuedexta-related consulting, promotional speaking and other services, according to government data. The companies also spent $4.6 million on travel and dining costs, both for speakers and for doctors being targeted by salespeople.”
We previously reported on the use of chemical restraints in the elderly with Alzheimer’s and dementia. Doctors and nursing homes have been giving people with dementia and Alzheimer’s drugs to sedate them for generations. Alzheimer’s and dementia patients can be difficult to work with and require more time, attention, and patience than other patience.
Time, attention, and patience are rare commodities for nursing home aides and nurses due to frequent staffing concerns. Sedating these patients is an easy fix.
Nuedexta’s chemical makeup is a perfect fit for chemical sedation. Nuedexta is dextromethorphan, or DXM. This is the active ingredient in cough syrup that causes drowsiness and fatigue. But Nuedexta is not just the active ingredient in cough syrup. It is mixed with a drug called quinidine. This slows the metabolizing of the drug, which means that it packs a punch and lasts a long time in the body.
How would this medication improve the thought process of people with dementia and Alzheimer’s? That much is unknown. What is known is that it is sedating. And sedating medications in the elderly have proven dangerous time and time again resulting falls, heart and breathing problems, and many other problems.
Regardless of the drug used, the result is the same: sleepy, lethargic patients who fall and get injured, sometimes fatally. And this practice is not only dangerous but illegal!
Federal law prohibits the use of medications for “discipline” or “convenience” of staff, which is considered a “chemical restraint.” A chemical restraint can only be used as a last resort to prevent an agitated patient from harming himself or others. Ohio law also prevents the use of chemical restraints except in extreme circumstances. Ohio’s Nursing Home Bill of Rights states that nursing home residents have the following rights:
“The right to be free from … chemical restraints … except to the minimum extent necessary to protect the resident from injury to self, others, or to property and except as authorized in writing by the attending physician for a specified and limited period of time and documented in the resident’s medical record.”
The manufacturer of Nuedexta – a company called Avanir Pharmaceuticals – admits that it has never fully addressed the consequences of the drug on the elderly in its prescribing information. This has led critics to conclude that the drug manufacturer is conducting an uncontrolled experiment on a captive elderly population.
“The one study the company conducted solely on patients with Alzheimer’s (a type of dementia) had 194 subjects and found that those on Nuedexta experienced falls at more than twice the rate as those on a placebo,” according to a recent report.
In large part, the federal government is footing the bill to inappropriately prescribe Nuedexta to elderly people without PBA. Why is that? Because Medicare Part D and Medicaid (a program shared by the federal and state governments) pay the vast majority of medical care in the elderly.
This means that not only is the government paying for the drug but also for any harm the patient suffers from the side effects of the medication.
Doctors are sometimes required to see as many sixty patients in a single day. Each patient is entitled to care catered to his or her medical needs. But doctors, nurses, and other clinicians are receiving information about dozens of patients’ vital signs, symptoms, and potential treatments at any given moment.
Maintaining this information and accurately communicating it to other medical providers is critical for patient safety. Unfortunately, this information is often miscommunicated during transitions of care and at discharge.
What exactly is a ‘transition of care’? A transition of care occurs when a patient moves between healthcare professionals. When a patient is referred by a primary care physician to see a specialist, a transition of care takes place, for example. A transition of care can also be when a doctor, nurse, or any other healthcare professional changes during a shift change on the job.
Other transitions include when a patient is transferred from one medical facility to another—such as when a patient is moved from a small to a larger hospital or when a patient is sent to a rehabilitation facility after a hospital stay.
Medical errors are a leading cause of death and injury in the United States. Between 200,000 and 400,000 people die each year from medical errors, making it the third leading cause of death in the U.S. Medical researchers estimate that the number of patients who are seriously injured every year because of medical errors is 10 to 20 times that figure. Medical errors are a common source of wrongful death lawsuits.
It is estimated that 80 percent of the most serious medical errors can be linked to communication between clinicians, particularly during transitions in patient care. For example a handoff related error might occur if information about a diagnostic test (like an x-ray or MRI) is not communicated correctly between physicians at shift change, resulting in the test being delayed or not performed at all. Other common communication breakdowns relate to medication errors. Medication errors are one of the largest sources of preventable medical errors in the United States.
According to the Joint Commission (the body that accredits most hospitals in the U.S.), every transition of care should include medication reconciliation. Medication reconciliation is the process of creating an accurate list of all medications a patient is taking—including by medication name, dosage, manner / route of administration, and frequency—and comparing it to any orders, including physician’s, transfer, and discharge orders for accuracy at all transition points within the hospital.
Despite these calls for medication reconciliation, a report issued by the United States Pharmacopeia found that 66 percent of medication errors occurred during the patient’s transition or transfer to another level of care, 22 percent occurred during the patient’s admission to the facility, and 12 percent occurred at the time of discharge. The majority of these errors were due to failure to provide the medication and prescribing errors. Other types of errors reported were wrong drug, wrong time, extra dose, wrong patient, mislabeling, wrong administration technique, and wrong dosage form. Each of these failures is the result of communication errors.
The Joint Commission has identified several factors that contribute to breakdowns in transitions of patient care. The most common causes of errors in transitions of care are:
Care providers do not effectively or completely communicate important information among themselves, to the patient, or to those taking care of the patient at home in a timely fashion. The communication method—whether verbal, recorded, or written—is ineffective.
For example, the Center for Transforming Healthcare’s hand-off communication project found these risk factors among those relating to communication:
Medical providers’ failure to fully educate patients and their family members, or anyone responsible for the patient’s care, about the transition process is a leading source of medical mistakes. The following are common breakdowns in patient education:
In too many cases, no physician or medical institution that takes responsibility to ensure that the patient’s health care is coordinated across various settings and among different providers. This frequently results in medical errors in the following ways:
Errors in handoffs and transitions of care are especially prevalent for the elderly and those in long-term care. Consider the following statistics identified by the National Transitions of Care Coalition:
The need for coordinated and accurate communication is a matter of life and death for the elderly. Elderly patients often visit multiple care facilities and take long lists of medications for multiple conditions. Elderly patients are at an increased risk of injury and death from hospital and medical errors.
If there is a practical solution, researchers may be on the brink. In a recent study conducted at UC San Francisco, researchers found that when healthcare providers incorporated more efficient communication practices, there was a 30 percent decrease in injuries suffered because of medical error.
Michael A. Hill is an accomplished trial lawyer focusing on representing individuals who have suffered life changing injuries, including stroke and death. Michael practices in state and federal courts around the country and has argued cases in front of numerous appellate courts, including the Ohio Supreme Court. Michael has recorded several seven figure verdicts and settlements. Michael is a regular speaker for lawyers concerning litigation and trial practice. Michael is a member of The National Trial Lawyers Top 40 under 40, Top 10 Nursing Homes Lawyers, Top 25 Medical Malpractice Lawyers, Super Lawyers: Rising Star, and Multi-Million Dollar Advocates Forum.
Michael is from Flint, Michigan and received his undergraduate degree from Oberlin College in Oberlin, Ohio, where he was introduced to his wife, Hilary. Michael received his law degree from Case Western Reserve University School of Law where he graduated Magna Cum Laude. Michael and Hilary live in Lakewood, Ohio. Michael is a Partner and founder of Eadie Hill Trial Lawyers.
Elder abuse is an epidemic in the United States. If you suspect that a senior is at risk from a neglectful or overwhelmed caregiver, you must speak up. Learn about the risk factors for and signs of elder abuse.
Over 3.2 million people reside in nursing homes, assisted living facilities, and other long-term care facilities in the United States. As many as 40 percent of all adults will enter a nursing home at some point their life. As the U.S. population ages, the number of long-term care residents will expand. Many of these seniors are well-cared for, but countless others are the victims of abuse.
Elder abuse and neglect, especially when it involves a person in a nursing home or assisted living facility, can be difficult to discover. For each reported instance of abuse, at least 5 instances of abuse go unreported.
Nursing home abuse is a major concern. Seniors who have been abused have a 300% higher chance of death in the 3 years following the abuse than those who have not been abused. Approximately 1 in 6 nursing home citizens is the subject of abuse or neglect each year.
Though many nursing home patients receive appropriate care, abuse and neglect continue to be more prevalent than many people think. Over 75% of all instances of elder abuse are carried out by caretakers.
A congressional report examined nursing home documents over a 2-year period. The report showed that nearly 1 in 3 nursing homes were cited for violations that had the potential to cause serious harm to residents. 10% of all nursing homes have been cited for causing actual harm, serious injury, or placed residents at a major risk of a fatality.
A study of nursing home residents showed that 44 % reported that they had actually been abused. Nearly all of those evaluated (95%) had actually seen a resident being abused or neglected.
Research performed by the U.S. General Accountability Office (an agency that works for Congress) exposed that state regulatory authorities often miss out on signs of abuse. The GAO discovered that 70% of state surveys missed out on significant care deficiencies. Another 15% missed evidence of actual harm or immediate jeopardy of harm.
Given these statistics, legislatures in all 50 states have passed anti-elder-abuse regulations. Despite these regulations, elder abuse continues at an alarming pace.
Physical abuse is a problem or event that triggers physical injury. Physical abuse might be intentional such as striking or squeezing or it might be due to neglect consisting of overuse of restrictions and absence of physical treatment.
Sexual abuse is undesirable sexual focus or exploitation. This consists of sex-related focus offered to an individual that is unable to express his/her desires or is cognitively endangered such as a person with dementia Alzheimer’s.
Mental abuse is not easily recognized. In mental or emotional abuse, people speak to or treat elderly persons in ways that cause emotional pain or distress, including:
Seniors who are experiencing emotional misuse might display behavioral changes.
Financial exploitation occurs when a caretaker takes control of financial affairs and endangers the elderly person’s economic status. This might include direct theft, theft from banking accounts, or making an application for credit in the person’s name.
Neglect is often a result of inadequate staffing. Neglect is a failure to fulfill a caretaking obligation. More than half of all reported cases of elder abuse result from neglect. Negelct can be intentional or unintentional, based on factors such as ignorance or denial that an elderly person needs as much care as he or she does. Neglect happens when an individual’s demands are not dealt with such as individual hygiene treatment or when the patient is not given food, water, or garments. Indifference and disregard can contribute to a variety of medical conditions such as bed sores, skin infections, poor nutrition and dehydration.
It’s challenging to care for an elderly person who has numerous medical needs. It’s also difficult to be a senior when age brings with it infirmities and dependency. Both the needs of the caregiver and the needs of the senior can produce circumstances where abuse and neglect are much more likely to take place.
Many nonprofessional caretakers– spouses, partners, children, various other loved ones, and also close friends–find caring for a senior to be satisfying. Yet, the obligations as well as demands of caregiving, which increase as the senior’s condition degrades, can likewise be incredibly demanding. The tension and anxiety of elder care can bring about psychological and physical health issues that cause caregivers to burnout. In these circumstances, caregivers are much more susceptible to ignoring and neglecting the needs of those who depend on them.
Caregivers in institutional settings can experience anxiety and stress at levels that result in elder abuse and neglect. Nursing home personnel might be susceptible to elder abuse if they do not have training, have way too many obligations, are psychological unsuited to caregiving, or work under inadequate conditions.
Some seniors are much more susceptible to abuse and neglect than their peers. This includes residents who demand more care than their caretakers can provide. Elder abuse is never excusable. However, certain risk factors do place the elder at higher risk for abuse and neglect. These risk factors include:
There are numerous signs of elder abuse and neglect. The most common signs of elder abuse and neglect include the following:
While not all who show these signs have been neglected or abused, these warning signs are red flags that require a thorough and immediate investigation.
Michael A. Hill is an accomplished trial lawyer focusing on representing individuals who have suffered life changing injuries and death in nursing homes, and also from stroke and heart attack in the medical malpractice setting. Michael practices in state and federal courts around the country and has argued cases in front of numerous appellate courts, including the Ohio Supreme Court. Michael has recorded several seven figure verdicts and settlements. Michael is a regular speaker for lawyers concerning litigation and trial practice. Michael is a member of The National Trial Lawyers Top 40 under 40, Top 10 Nursing Homes Lawyers, Top 25 Medical Malpractice Lawyers, Super Lawyers: Rising Star, and Multi-Million Dollar Advocates Forum.
Michael is from Flint, Michigan and received his undergraduate degree from Oberlin College in Oberlin, Ohio, where he was introduced to his wife, Hilary. Michael received his law degree from Case Western Reserve University School of Law where he graduated Magna Cum Laude. Michael and Hilary live in Lakewood, Ohio.
Michael is a partner and founder of Eadie Hill Trial Lawyers.
Across the country elderly patients are being dangerously overmedicated for no good reason. There is a serious problem with the elderly being overmedicated with antipsychotic and similar medications in nursing homes, rehabilitation centers, and assisted living facilities.
Overmedication and chemical restraints are common signs of elder abuse and neglect.
Antipsychotics drugs are approved mainly to treat serious mental illnesses like schizophrenia and bipolar disorder. But many nursing homes prescribe these drugs to elderly patients simply to calm anxiety or agitation that is associated with Alzheimer’s disease and dementia.
A report published by National Public Radio (NPR) found that almost 300,000 nursing home residents are currently receiving anti-psychotic medications. The study also found that reason these medications are being prescribed is to sedate patient with Alzheimer’s and dementia.
Doctors who specialize in treating elderly patients (called gerontologists) say that anti-psychotic drugs are unnecessary in the vast majority of dementia and Alzheimer’s patients.
Family members are often never provided with a complete explanation about why these medications are being prescribed to their loved one. The evidence proves that nursing home residents are ordered to take antipsychotic drugs for the convenience of the staff by sedating elderly residents.
This is especially true in nursing homes that do not have enough staff to properly care for each resident because of understaffing.
Federal law prohibits the use of antipsychotics for “discipline” or “convenience” of staff, which is considered a “chemical restraint.” A chemical restraint can only be used as a last resort to prevent an agitated patient from harming himself or others. Ohio law also prevents the use of chemical restraints except in extreme circumstances. Ohio’s Nursing Home Bill of Rights states that nursing home residents have the following rights:
“The right to be free from … chemical restraints … except to the minimum extent necessary to protect the resident from injury to self, others, or to property and except as authorized in writing by the attending physician for a specified and limited period of time and documented in the resident’s medical record.”
These drugs can have an intoxicating and even stupefying effect on elderly patients. According to a study published in the Journal of the American Medical Association, the use of antipsychotic medications greatly increases the risk of falling and suffering injuries, including fractures and death.
These drugs also include black box warnings stating that they can increase the risk for heart failure, infections, and death. Antipsychotic drugs should be used only as last a resort.
While antipsychotic medications are the most common types of medications that are used as chemical restraints, there are other medications that can be used to restrain nursing home residents. These are primarily benzodiazepines and dissociative anesthetics.
Benzodiazepines are a class of drugs that can be used to help alleviate insomnia, panic attacks, anxiety, muscle tension, and seizures. Although there are others, the most common benzodiazepines used as chemical restraints are:
Studies show that benzodiazepines are effective for sedating the elderly but are dangerous and unusually unnecessary.
Other drugs that nursing homes use to chemically restrain elderly residents include dissociative anesthetics. Dissociative anesthetics are a type of hallucinogen.
These drugs distort the patient’s perceptions of sound and sight. They also tend to dissociate, or detach, individuals from their self and environment.
Dissociative anesthetics work by blocking or reducing brain signals between the conscious mind and other parts of the brain. Due to the intensity of dissociative drugs, they are less commonly used than drugs such as antipsychotics and benzodiazepines. There are numerous types of dissociative anesthetics, including ketamine.
Use any of these drugs unnecessarily will expose a patient to several other risks and harmful effects including:
Many patients or their guardians may not know that antipsychotics or similar drugs are not needed for their condition. Worse yet, they are rarely told about the serious risks associated with taking these drugs.
In fact, many family members and guardians may not know that their loved one is taking these medications at all.
Good nursing homes should be able to provide alternatives to chemical restraints to calm the anxiety and agitation that sometimes accompanies dementia and Alzheimer’s and to limit impulsivity and confusion.
Dementia and Alzheimer’s aggression, agitation, and anger can be influenced—positively or negatively—by the behavior of nursing home staff. There are several ways that staff can avoid the use of use of chemical restraints.
Impulsive behaviors can lead to injury and be irritating to staff members. However, there are alternatives that should be considered by a nursing home before chemical restraints are used. These include:
A resident’s confusion can be a major source of frustration to nursing home staff. Before restraints or medications are used, it is important for the nursing home caregivers to look for causes of the confusion, including physiologic, pharmacologic, environmental, or emotional factors.
For example, a confused patient may routinely try to get out of bed to use the toilet. Nursing home staff can look to find out whether the resident has a urinary tract infection or is on any medication, such as a diuretic like Lasix, that may cause the resident to need to go to the restroom more often.
Nursing home staff can anticipate any problems by putting a toileting plan in place—for example, every 1-2 hours a staff member enters the room and asks the resident if she needs to use the restroom.
Other measures can be taken to help understand the reason for confusion and improve the resident’s cognition without the need for restraints. These alternatives commonly include:
The next time you visit your loved one who is in a nursing home be sure to check out the list of the drugs given to him or her to make sure the he or she is not being overmedicated.
Overmedication and chemical restraints are common sign of elder abuse and neglect.
Michael A. Hill is an accomplished trial lawyer focusing on representing individuals in wrongful death cases and who have suffered life changing injuries. His practice is concentrated on nursing home and assisted living negligence and medical malpractice cases involving heart attack and stroke.
Michael practices in state and federal courts around the country and has argued cases in front of numerous appellate courts, including the Ohio Supreme Court. Michael has recorded several seven figure verdicts and settlements. Michael is a regular speaker for lawyers concerning litigation and trial practice. Michael is a member of The National Trial Lawyers Top 40 under 40, Top 10 Nursing Homes Lawyers, Top 25 Medical Malpractice Lawyers, Super Lawyers: Rising Star, and Multi-Million Dollar Advocates Forum.
Michael is from Flint, Michigan and received his undergraduate degree from Oberlin College in Oberlin, Ohio, where he was introduced to his wife, Hilary. Michael received his law degree from Case Western Reserve University School of Law where he graduated Magna Cum Laude. Michael and Hilary live in Lakewood, Ohio. Michael is a partner and founder of Eadie Hill Trial Lawyers.
Leona Maxim died on August 23, 2013, eleven weeks after she was rolled out of bed for a second time at a nursing home in Solon, Ohio. A Cuyahoga County jury, in a case brought by trial attorneys William Eadie and Michael A. Hill, on behalf of Ms. Maxim’s family, sent a strong message about the standards nursing homes must follow and the safety that patients in this community deserve by returning a verdict in the amount of $4,400,000 against the nursing home for causing her death.
The verdict consisted of $1,000,000 for Leona’s injuries, pain, and suffering, and $400,000 for her family for their loss. The jury assessed another $3,000,000 as punitive damages to reform the defendant, Kindred Transition Care and Rehabilitation-Stratford (“Kindred Stratford”) and deter other nursing home corporations in the industry from acting in a similar manner. As a punitive measure, the jury also required Kindred Stratford to pay the attorneys’ fees of William Eadie and Michael A. Hill, the lawyers who represented Leona Maxim’s family.
“As a family, we are grateful for the jury’s verdict. We hope it will send a message to the nursing home industry and prevent someone’s mother from suffering the same fate as our mother,” said Christine Guest, one of Leona Maxim’s daughters. “What we wanted all along was for Kindred Stratford to be accountable.”
Kindred Healthcare is one of the largest nursing home corporations in the United States, and operates nursing home facilities throughout the country. In 2010, Kindred purchased an independent nursing home in Solon, Ohio, called “Stratford Commons.” Kindred implemented its own practices, including rebranding the nursing home as Kindred Transitional Care and Rehabilitation-Stratford, hiring a new Executive Director, and mandating that caregivers follow its policies and procedures.
Leona had already lived at the nursing home for three years when it was taken over by Kindred. Several months after Kindred purchased the nursing home, a single nursing assistant turned Leona while she was in bed. Because Leona had weak legs and midsection following her stroke, Leona was unable to stop her momentum and rolled out of bed, hitting her knees on the floor.
Leona’s family asked the nursing home to use two nursing assistants whenever Leona was getting care that required repositioning her in bed moving forward. Leona’s doctor ordered that two people assist Leona with all care that required repositioning in bed from that point forward. Kindred Stratford’s staff testified the order was in place for Leona’s safety to protect her from rolling out of bed.
On June 3, 2013, a single nursing assistant rolled Leona out of bed for a second time while repositioning her in bed. A second assistant was not present. This time the impact of the fall severely fractured Leona’s right thigh bone, called the “femur” bone.
During the course of the litigation, Kindred Stratford claimed that only one aide was present on June 3, 2013 because Kindred Stratford had accidentally “dropped” the order for two-person assistance. Kindred Stratford attempted to explain this as a “mistake” and unavoidable “human error.” However, Leona’s attorneys argued that documentation proved that Kindred Stratford’s nursing assistants were not consistently following the order, and Kindred knew this.
Kindred Stratford’s former Executive Director admitted that staff members complained that they wanted more staff and help.
The Cuyahoga County Medical Examiner, Thomas P. Gilson, M.D. testified at trial regarding his conclusion that Leona Maxim’s death was caused by the fall and broken leg. Gilson explained that, when a large bone is broken, the body is forced to devote significant energy to heal that broken bone. Because energy is being directed toward healing the fracture, there is less energy available to fight off infection and maintain life. This commonly results in a steady stream of decline. As a result, falls in the elderly are a matter of life and death.
Following the broken leg, physicians at the hospital chose to put Leona’s leg in an immobilizing brace, essentially a cast, to permit healing rather than have her undergo the risks of surgery. Once Leona returned to Kindred Stratford, Leona’s family alleged the brace was not being put on correctly.
Leona’s family members testified that after informing the staff of multiple errors in placing the brace, they took a photograph of the brace when placed properly and had it hung above her bed so that Kindred Stratford’s staff would place it properly.
Leona developed multiple wounds, called pressure ulcers, from the brace. One became a Stage IV pressure sore, also called a decubitus ulcer, that was deep enough to expose the tendon in her leg. The pressure sore became infected with an antibiotic-resistant bacterium.
Leona declined physically and mentally to the point that she had to be taken to the hospital and placed on life support. After several days, life support was removed and Leona died. The caregivers at the hospital asked the Cuyahoga County Medical Examiner to investigate the cause of death because they believed her death was caused by the fracture. The Medical Examiner investigated Leona’s death and concluded that Leona died from complications of the broken femur.
The official cause of Leona’s death is “femur fracture with complications.” The manner of death was ruled “accidental” because it was caused by trauma, specifically being rolled out of bed on June 3, 2013.
At trial, Kindred Stratford argued that although there was a “mistake” in the order, Leona was “assisted” to the floor and never rolled out of bed. Kindred Stratford also argued that the brace was placed properly and was never mismanaged. Kindred Stratford further claimed that Leona died from aspiration pneumonia completely unrelated to the broken leg.
After more than two weeks of testimony and evidence, the jury disagreed, finding that Kindred was negligent and that its negligence caused Leona Maxim’s death. The jury also concluded that Kindred Stratford consciously disregarded Leona Maxim’s rights and safety under circumstances that had a great probability of causing substantial harm. This latter finding was the basis for punitive damages, which are intended to punish the defendant and deter similar conduct.
The lawsuit was tried in the Cuyahoga County Court of Common Pleas from October 11-25, 2016 by trial attorneys William Eadie and Michael A. Hill. Although based in Cleveland, Mr. Eadie and Mr. Hill handle wrongful death and catastrophic injury cases throughout the state of Ohio and, under certain circumstances, across the United States.
Medical errors are the third leading cause of death in the United States. Between 200,000 and 400,000 patients die as a result of medical errors each year. Approximately 10 to 20 times that figure are seriously harmed but do not die from medical errors. Less than 2% of all doctors have been responsible for half of all medical malpractice claims over the past 25 years.
The key to a medical malpractice claim is that the doctor or other healthcare provider breached the standard of care. This means that the medical professional did something that was unreasonable under the circumstances. Put another way, the medical professional chose to do something that other doctors would not have done or did not do something that other doctors would have done in the same circumstances. In order for there to be a medical malpractice claim, the medical professional’s unreasonable conduct must have caused an injury.
No. When an average person acts unreasonably it is called negligence. For example, when a motorist runs a red light, it is called negligence. When a professional – like a doctor – is negligent, it is called malpractice. But, in essence, they are the same thing.
No. There are certain risks that are inherent to medical procedures. Under some conditions, a physician can be reasonable in his medical care and the patient can still experience a bad outcome.
Every state has a limitation on the time period when you can bring a medical malpractice claim. For example, in Ohio a patient has one year to bring a medical malpractice claim. However, there are numerous exceptions including ones based on when an injury may have been discovered or when a patient last treated with a physician. To determine the exact time limitation for a specific case, it is important to speak with an attorney as soon as possible.
1 out of every 3 patients will experience a medical error during their hospital stay.
Medical negligence can happen at any stage of the medical care. Medical malpractice can occur before the diagnosis, during treatment or surgery, or after an illness is treated or a procedure is performed.
Yes. Although medical malpractice can occur in almost any way imaginable, the most common kinds of medical malpractice occur when there is a diagnostic error (meaning some condition or illness was misdiagnosed or was not diagnosed on time) and medication errors (meaning that the wrong medication was given, the wrong dose of a medication was given, a medication was delivered in the wrong way—e.g., IV vs. pill—or the medication interacted with another medication that was given).
Good medical malpractice lawyers usually take cases on a contingency fee agreement. The fee is commonly 33-40% in the industry. The lawyer or law firm agrees to advance all expenses in the case. The expenses usually consist of medical record retrieval fees, hiring experts to evaluate the medical records and testify, and costs of travel, lodging, and depositions. These fees commonly exceed $100,000 on any given case.
It is called a contingency fee because the lawyer’s compensation for his time and work are contingent on the outcome of the case. The injury or harm usually has to be substantial in order to justify the high costs of pursuing the case.
Lawyers consult with medical experts who review the medical records of the patient and sometimes meet with the patient in person to determine whether the doctor acted appropriately. These medical experts usually practice in the same or similar field as the defendant doctor.
Yes. Both sides in a medical malpractice case will hire medical experts to determine whether the care was appropriate. These experts commonly disagree on material issues about the case.
Ultimately, a jury or a judge decides whether a doctor committed malpractice and whether the malpractice caused an injury to the patient. If there is a bench trial, then the judge makes the decision (from the bench). If there is a jury trial, then the jury makes the decision after deliberating. The judge or jury will hear testimony from the patient (if alive and capable of testifying), the defendant doctor, various witnesses who know something about the case, and expert witnesses.
Yes. Under certain circumstances a patient may be considered negligent if he or she failed to follow a doctor’s recommendations when a reasonable patient would have. In order to be considered negligent, the patient’s own actions must have caused the injury or a part of the injury.
The final outcome depends on the state where the lawsuit is brought.
In a true contributory fault state, if the patient is negligent at all, the patient cannot recover.
In a true comparative fault state, if both the patient and doctor are negligent, then the percentage of the patient’s negligence is subtracted by the total result. For example, if the jury awards $100,000 and the patient is 90% at fault, the patient is entitled to $10,000.
In a modified comparative fault 50% state, the patient’s degree of fault is reduced from the total verdict, but it cannot exceed 50%. For example, if the verdict is $100,000 and the patient is 50% at fault, then the patient receives $50,000. However, if the patient was considered to be more at fault (i.e., 51%), then the patient cannot recover.
In a modified comparative fault 51% percent state, the patient’s fault must be less than the defendant’s fault in order to be successful. Thus, the defendant must be at least 51% at fault. For example, if a jury awards $100,000 and the patient is 49% at fault, then the plaintiff receives $51,000. If, however, both the patient and the doctor are 50% at fault, the patient gets nothing.
The injured patient must prove that the defendant doctor did something wrong, caused an injury to the patient, and caused physical, emotional, or financial harm.
If the doctor claims that the patient did something wrong, such as did not follow post-operative instructions or did not take medications as prescribed, the doctor has burden of proving that.
The burden of proof is called a preponderance of the evidence. This means that something is ever so slightly more likely to be true than false.
A medical malpractice trial can last anywhere from a few days to several weeks depending on how complex the case is, how significant the injuries are, and how many witnesses are needed to testify.
Malpractice cases can take months to years depending on the complexity of the case. Although the lawyers are involved in the case on a daily basis, the patients are only specifically required to be directly involved on a few occasions, which include meetings with the lawyer and law firm staff, depositions, and court hearings. A good lawyer and law firm, however, will keep the client continually notified on the progress of the file.
Yes. Following a medical malpractice trial, either party can appeal. The appeal has to be based on an error committed by the judge and not simply about the result. If the parties appeal, then the limited issue being appealed is decided by an appellate court (which is usually a panel of judges who were not present for the case).
Either party can choose to appeal a result of not. If the injured patient was successful at trial, then the defendant can (1) pay the amount of the verdict, (2) agree to settle the case for less than the amount of the verdict, or (3) file an appeal.
The statistics show that between 20-25% of medical malpractice cases settle without a trial. Less than 5% of cases go to trial. The remaining cases are resolved—usually through a dismissal—without any payment being made.
Patients should be proactive about their healthcare, which includes learning about their medical conditions and researching how those conditions are best treated. It is also helpful to document any symptoms as well as anything that happened before or after those symptoms emerged. Patients should ask healthcare providers questions they feel are important, including bringing a written list of questions to the doctor.
It is also helpful—but sometimes not practical—to bring a family member or close friend with you to doctor visits.
Despite all efforts to be proactive, however, there are instances when medical malpractice is unavoidable for the patient, including errors that occur during surgery, in diagnostic failures, and medication errors.
No. Medical malpractice cases do not increase the cost of healthcare in any meaningful way. Only about .3 percent of healthcare spending in America is spent on medical malpractice, while the yearly cost of treating medical errors that could have been prevented is around $29 billion. Medical malpractice premiums and payouts cost less than ½ of 1% when it comes to overall healthcare costs.
Yes. Legitimate malpractice cases go unexplored for multiple reasons. Patients may choose not to pursue a medical malpractice case because they do not know where to turn for help, they do not that there is a strict limitation period to pursue a claim, they fear that the doctor or healthcare system will learn of the claim and refuse to treat them, they believe that it will result in an increase of medical costs to them, or they do not believe that they have the financial ability to pursue a case.
If you believe that you or a family member has been injured because of a medical error, the best thing to do is contact a medical malpractice attorney as soon as possible. It is impossible to know whether you have a case until the medical records have been reviewed and experts have been consulted. There are often delays in retrieving medical records and the more time that passes, the more difficult it may be to successfully prove your case.
Did you ever wonder if your doctor has a history of medical malpractice? You likely won’t be able to find out because physicians are able to avoid scrutiny from the public and state licensing boards by settling lawsuits confidentially in the names of their corporate employer.
One of the functions of the government is to protect the public’s safety. Governmental bodies like the Food and Drug Administration (FDA) and Centers for Disease Control (CDC) spend billions of dollars investigating new drugs and medical devices or studying diseases that could affect large numbers of people.
Similarly, the Federal Aviation Administration (FAA) protects passengers on airplanes by strictly regulating pilots and crew as does the Federal Highway Administration (FHA) over America’s roads.
Although healthcare is a multi-billion dollar industry that affects every one of us, there is no similar authority when it comes to protecting patients from medical malpractice. Patient safety is in the hands of a patchwork comprised of voluntary organizations, medical boards, hospitals that employ physicians, and insurance companies that are dependent on the medical industry for their livelihood.
The Joint Commission is an independent body that accredits hospitals and other medical organizations. Hospitals and other medical facilities are not required to seek approval of the Joint Commission. But they cannot receive payments from Medicare if they are not accredited by the Joint Commission. Practically all healthcare organizations are accredited by the Joint Commission.
The Joint Commission accredits the following types of organizations:
The Joint Commission, however, is not a governmental entity. The Joint Commission, rather, is a not-for-profit comprised of other medical professionals. It does not license or regulate doctors nor does it have any ability to punish or take action against an individual physician.
It is up to the individual state medical boards to evaluate and license physicians to practice medicine. The state medical boards have chosen to allow the test administered by the National Board of Medical Examiners (NMBE) to serve as the primary method of confirming the competence of physicians who graduate from American medical schools.
The NMBE is also not a governmental body. It is a not-for-profit made up of medical professionals.
Once doctors are licensed to practice medicine, it is up to state medical boards to renew a physician’s license to practice medicine.
Every physician’s license is automatically renewed if she pays a fee and attends a specific number of continuing medical education (CME) courses. CME courses are very different than medical school courses. A physician may choose whatever CME courses she likes. The courses do not need to be related in any way to the doctor’s practice areas, are often provided by pharmaceutical and tech companies that encourage the doctors to prescribe or use their products. They can even put on courses overseas or on cruises.
In order to work or see patients at a hospital, doctors must have privileges to do so. Hospitals are required to periodically review and confirm the training and competence of all physicians who have privileges at the hospital. This is a process known as credentialing.
The states defer entirely to individual hospitals in the process of granting, reviewing, and maintaining privileges to physicians. Every state, including Ohio, has a law that protects all discussions of hospital committees during these reviews. In Ohio, the discussions of hospital credentialing staff are hidden from the public.
Even when you’ve been injured and sue a hospital for medical negligence, you and your medical negligence lawyers are not able to learn how the doctor was credentialed.
Patients are often restricted to physicians practicing at only a few hospitals because of geography or insurance coverage. But those same patients are denied information about their doctors because of the secrecy involved in credentialing. Patients must simply trust that the physicians at the local hospital are competent and skilled.
State medical boards and the National Practitioner Data Bank (NPDB) receive information about medical malpractice payments. The NPDB is a confidential clearinghouse that collects data on medical malpractice payments. Individual members of the public cannot gain access to the information maintained by the NPDB.
As it relates to malpractice, the NPDB requires:
“For each entity (including an insurance company) which makes payment under a policy of insurance, self-insurance or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim shall report…information respecting the payment and circumstances thereof.”
Under Ohio Administrative Code § 4731-15-03, any settlement or payment of $35,000 or more must be reported to the Medical Board of Ohio, which may then conduct its own investigation of the case, and which can result in action against the physician’s license to practice medicine. Actions against individual physicians are exceedingly rare.
The data shows that about 25% of all medical malpractice cases settle before trial and less than 5% go to trial. This means that around 70-75% of medical malpractice cases result in dismissal where no payment is made and therefore no report is issued to the state medical board or NPDB.
Of those cases that go to trial, studies suggest that around 80% are verdicts for the defense. Accordingly, most reports to state medical boards and NPDB are generated by settlements.
Medical malpractice insurance policies often include a consent provision. These are different than typical insurance policies with which most consumers are familiar. For example, if you strike and injure someone with your automobile, your automobile insurance carrier can settle the claim based on the merits of the case regardless of whether you consent to a settlement or not. Most medical malpractice insurance contracts are far different. The consent provision means that the physician has to consent before any settlement can be reached.
Protection of patients is the policy reason for the reporting requirements to state medical boards and NPDB. A physician can avoid a report being issues to the state medical board by refusing to consent to a settlement, aggressively defending against the claim, and prevailing at trial. As a result, avoiding a NPDB report actually encourages physicians to continue lawsuits rather than settling. Despite this sometimes perverse incentive, most cases are not going to trial.
A more common way physicians avoid reporting is through the “corporate shield,” which is used when corporate entities, such as hospitals and other medical institutions, are sued. Because the physician’s consent is required to settle the lawsuit, the doctor can hold up a settlement until he is dismissed from the case.
A settlement is reached and payment is made only after the physicians named in the lawsuit are dismissed. Because only the corporate entity, such as the hospital or medical institution, is named in the final settlement, no report is made to the state medical board or NPDB on the doctor.
As major hospital corporations purchase smaller, independent medical facilities, it is becoming increasingly common that physicians are employees of these institutions who can settle the claims after the doctor is dismissed.
When there is a settlement, the settlement unfailingly includes a confidentiality provision. This means that the patient, the patient’s family, and the patient’s attorney are prohibited from discussing the merits of the case or the result. To the injured patient or family, the benefit of a settlement often outweighs any concerns about confidentiality or reporting.
The care provided by individual doctors is usually the focus of medical malpractice lawsuits, but by requiring that the individual doctor be dismissed from the lawsuit and the settlement be between the hospital and the patient only, the negligent docotr is able to avoid a report to the state medical board or NPDB.
The purpose of reporting medical malpractice settlements to the state medical board and NPDB is to investigate the actions of doctors and protect patient safety. Patients and consumers can check the state medical board and websites about their doctors or hospitals all they want but won’t be able to find much if anything.
This is especially concerning as multiple studies show that a very small percentage of physicians are responsible for all malpractice claims. In 2016, The New England Journal of Medicine published a study that found that 1% of all physicians accounted for 32% of all malpractice claims over the past 10 years.
A report released by the Journal of Patient Safety in January 2017 showed that fewer than 2% of all physicians were responsible for half of all malpractice claims over the past 25 years.
These doctors can avoid public scrutiny by requiring their dismissal before settlement and thereby avoiding any reporting at the state or national level. By requiring a confidential settlement, patients, patients’ family members, and patients’ attorneys are prohibited from reporting anything about the doctor’s malpractice, including posting comments online.
These doctors can then continue to harm future patients, which will lead to additional medical malpractice claims that can be settled by the institution without any report being generated.
In turn, the only entities that are aware of the malpractice are the individual plaintiffs and plaintiff’s attorneys. And they contracted to keep that secret under the confidentiality agreement. The hospital’s credentialing body knows, but any discussions by the hospital’s credentialing body are strictly confidential and hidden.
The result is that the physician’s insurance company is able to pay to keep the negligence secret.
Shocking statistic: fewer that 2% of physicians are responsible for ALL medical malpractice claims.
A report released by the Journal of Patient Safety in January 2017 showed that the majority of all medical malpractice suits were the result of the unreasonable actions of a few physicians. The medical investigators reached the conclusion that a small outlier of physicians had a disproportionately negative impact on the safety of all patients.
Over the past 25 years, there have been $83 billion in medical malpractice lawsuit payouts. The unreasonable actions of 1.8% of all physicians were responsible for half of that amount. Those physicians, however, were rarely disciplined for their conduct. (Learn more about how Ohio medical malpractice lawsuits work.)
The data demonstrates that only 12.3% of physicians had any action taken against their medical license. And only 6.3% had any action taken against their clinical privileges to provide care. That includes care at medical centers and hospitals.
Prior studies reached similar results. In 2016, The New England Journal of Medicine published a study that found that 1% of all physicians accounted for 32% of all malpractice claims over the past 10 years. The researchers determined that a small number of physicians had a negative impact on patient care.
Both studies found that doctors who paid multiple medical malpractice claims were substantially more likely to have additional medical malpractice claims in the future. The researchers also found that “there is evidence that most adverse events result from individual errors and that most malpractice suits reflect both patient injury and error.”
This reflects what many already know, that payouts from medical malpractice require not only poor medical care, but an injury caused by that poor care. That’s true whether the malpractice results in a permanent injury, or a wrongful death.
All of this comes at a time when many politicians across the country are seeking to restrict or outright prohibit patients from bringing medical malpractice lawsuits through what is commonly referred to as “tort reform.”
Typical tort reform agenda items include limiting the time period for when a patient can bring a lawsuit, placing an arbitrary cap on the amount of money that can be awarded to an injured patient, and requiring injured patients to submit their claims to physician panels.
According to the Washington Post, Republican lawmakers vow to make tort reform (sometimes also referred to as “medical liability reform”) a top priority of the overhaul of the Affordable Care Act. Healthcare industry lobbyists and politicians claim that there is “lawsuit abuse,” frivolous lawsuits, and physicians are running needless tests to avoid malpractice claims.
The medical researchers who actually study the issue—not lobbyists and elected officials—found that there are actually “clusters” of physicians who are likely to pay most claims. For example, 25% of all claims were paid by 0.5% of doctors while 50% of all claims were paid by 1.8% of physicians.
Yet, almost no discipline was taken against these physicians which jeopardizes the safety of the public, fails to discourage poor care, and almost guarantees that these physicians will have additional claims against them.
This data shows that almost nothing is being done to address this subset of wayward doctors.
The problem is not too many patients bringing lawsuits. The problem is that a few physicians are responsible for too many lawsuits. Preventing patients from bringing lawsuits under these circumstances does not solve any problems.
This is equivalent to lawmakers making it more difficult to prosecute crimes because a small number of individuals commit a majority of crimes. Stupid.
Have you experienced questionable medical care? Are you one of the people who have been told there’s a “lawsuit crisis” that must be stopped? What do you think about this data? Share your comments below.
No patient walks through the doors of a hospital expecting to be injured or made worse off than when he or she arrived.
Patients expect that doctors and care providers will make them better, not worse. Medical institutions should provide consistent, appropriate levels of care in order to diagnose and treat their patients. In some cases, however, the standard of care provided falls painfully short of our expectations.
Several recent high-quality studies have revealed that a shocking number of patients die each year as a result of poor medical practices. A recent review of several high-quality studies published in The Journal of Patient Safety proved that between 200,000 and 400,000 patients in the U.S. die each year from preventable medical errors. Far more patients suffer serious harms, such as infection, organ loss, and paralysis, because of medical errors. Estimates in the medical field place the number of serious harms at 10 to 20 times the number of annual deaths. Given that range, it is estimated that between 2 million and 8 million patients suffer serious harms as a result of medical errors each year.
These figures are consistent with the results of prior studies. Investigators of a study published in 2008 reported that 1.5% of all deaths of Medicare patients hospitalized each month are the result of preventable medical errors. A similar 2010 study showed that 1.4% of deaths of Medicare patients are the result of medical errors. A study published in Heath Affairs in 2011 reported that a medical error contributed to the deaths of 1.1% of all patients. The average age of the patients in that study was 59 years old.
In May 2016 the British Medical Journal revealed that medical errors should be considered the third leading cause of death in the United States. The currently reported third leading cause of death is chronic lower respiratory disease. The study found that medical errors surpassed this cause by more than 100,000 annually. The investigators determined that greater than 250,000 deaths each year are caused by medical errors, but the actual number is likely much higher. There are limitations in identifying the true number of deaths caused by medical errors because of the way deaths are reported. Causes of death on death certificates are often tied to insurance billing codes. Of course, there is no code that labels medical error as the cause of death.
Researchers have classified the types of errors into five different categories:
These types of errors involve mistaken action on the part of the medical provider either because it was the wrong action or because the action was performed improperly.
These types of errors involve failing to do something that needed to be done in light of the patient’s medical history or diagnosis. Common examples of acts of omission include:
Communication errors can occur between patient and medical provider, or between multiple medical providers. For example, a patient may be hospitalized because he has passed out for no apparent reason and passing out is a sign of a heart condition. Suppose that the cardiologist understands that the patient should not resume much physical activity but does not clearly communicate that expectation to the patient. The patient goes on a long run weeks later while the physician is awaiting test results. The patient collapses and dies. This is an example of a communication error.
Contextual errors occur when a given treatment plan or other measure may be correct if considered in isolation, but is not correct for a specific patient. An example would be a care plan requiring a patient to remember to perform regular activities but the patient cannot consistently remember to do these activities because of cognitive disabilities.
Diagnostic errors occur when a patient gets the wrong treatment or ineffective treatment because the wrong diagnosis has been made.
There are many factors that contribute to these poor outcomes. The most common factors that contribute to death and serious harm from medical errors in the hospital setting are:
Deaths from preventable errors are not limited to hospitals and doctors’ offices. Deaths and serious injuries commonly occur in skilled nursing facilities, post-hospital rehabilitation facilities, nursing homes, and assisted living facilities.
The Department of Health and Human Services found that 29% of patients—about 1 in every 3—who entered a rehab facility suffered further medical errors. About half of these errors were likely or completely preventable. The injuries ranged from bedsores and infections to permanent disabilities and death. Dr. David Classen, an infectious disease specialist at the University of Utah School of Medicine, stated that “If the first rule of health care is to ‘Do no harm,’ then we’re failing.’ ”
Nursing homes and assisted living facilities are an integral part of the healthcare system. Seniors across the country require assistance with daily activities and health care services. Each day family members make the difficult decision to move their parents and other loved ones into these facilities because they lack the ability to care for them at home. According to the Centers for Disease Control and Prevention (CDC) more than 1.4 million people, aged 65 and older, live in nursing homes and assisted living facilities. There are 15,600 nursing homes across the country.
Falling is a serious risk for seniors in nursing homes and assisted living facilities. 1 out of every 5 falls causes a fracture or head injury. The most common fractures from falls are of the hip, femur, and pelvis followed by the humerus, forearm, bones within the hand, and ankle bones.
Falls can be fatal, even if the initial fracture is treated. Falls reduce the quality of life, including decreasing functional behavior and increasing feelings of isolation, depression and helplessness. According to the Mayo Clinic, broken bones, and particularly a broken hip and femur, result in serious complications and shortened life. Immobile seniors are at risk for deep vein thrombosis, bedsores, urinary tract infections, loss of muscle mass, infections like pneumonia, and death.
Falls are all too common in nursing homes. Nearly 1,800 seniors living in nursing homes die each year because of fall-related injuries.
There are many errors that contribute to falls in the elderly. These include:
Preventable errors in rehabilitation centers, nursing homes, and assisted living facilities frequently result in serious injuries and deaths.
Michael A. Hill is an accomplished trial lawyer focusing on representing individuals who have suffered life changing injuries, including traumatic brain injuries, birth injuries, spinal injuries, chronic pain syndromes, and death. Michael practices in state and federal courts around the country and has argued cases in front of numerous appellate courts, including the Ohio Supreme Court. Michael has recorded several seven figure verdicts and settlements. Michael is a regular speaker for lawyers concerning litigation and trial practice. Michael is a member of The National Trial Lawyers Top 40 under 40, Top 10 Nursing Homes Lawyers, Top 25 Medical Malpractice Lawyers, Super Lawyers: Rising Star, and Multi-Million Dollar Advocates Forum.
Michael is from Flint, Michigan and received his undergraduate degree from Oberlin College in Oberlin, Ohio, where he was introduced to his wife, Hilary. Michael received his law degree from Case Western Reserve University School of Law where he graduated Magna Cum Laude. Michael and Hilary live in Lakewood, Ohio.