Sandweg & Ager, P.C.

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Over the past two weeks, I have written about the first two required elements of a medical malpractice case:  Standard of Care and Causation.  There is a final requirement.  It is that the breach of the standard of care must cause damages.  Damages is another area in which the Arizona legislature, prohibited by the Arizona Constitution from capping damages, has used workarounds to limit what negligent healthcare providers must pay. Damages come in two basic flavors.  The first is special damages.  These are amounts which can be the subject of actual computation.  Some obvious examples in medical malpractice cases are…
Last week I wrote about the standard of care.  Standard of care is the first element a patient must prove to win a medical malpractice case.  The second element of proof is that the breach of the standard of care “caused” an injury.  Causation requires, not only that the breach of the standard of care cause the injury, but that the injury would not have occurred in the absence of the breach. Causation in medical malpractice cases is a difficult element of proof.  One of the reasons it is difficult is complexity involved in medicine.  Things are not always crystal…
Everybody talks about medical malpractice but when you ask them about it, you find people have different ideas about what it really is.  Given its legal definition, this difference of opinion is not surprising.  Depending on whom you ask, you will get different definitions of medical malpractice. If you ask a lay person what they think malpractice is, you will likely hear that it occurs when a doctor or nurse makes a mistake.  Allthough that is a good answer, it has a number of problems.  In the first place, it doesn’t take into account whether the mistake causes an injury…
Recently, my daughter, who teaches high school art, asked me why, if malpractice cases are so hard to win, do doctors continue to complain about high malpractice insurance rates.  I thought that was a good question that deserved to be discussed on this blog.  The answer, as with so many things, is that they don’t know what they are talking about. This is not a criticism of doctors alone.  Everyone believes things that are not true.  We have heard them so often and believed them for so long that we just assume they must be true and never stop to…
Last week I wrote about some of the dangers of overuse and misuse of antibiotics: they create resistance among the disease causing bacteria and make antibiotics less effective in saving lives.  There is an equally important second reason, however.  The overuse and misuse of antibiotics kill and damage the good bacteria upon which we depend for our health. Not all bacteria are bad for us.  We have evolved over millions of years alongside bacteria.  Some of them have taken up residence inside us.  We benefit from them and we have given them a home.  We have literally billions of bacteria…
We are surrounded by life forms that are constantly mutating and changing.  This is particularly true of bacteria.  Because they have such short life spans, they can evolve quickly to meet threats.  That is exactly what they have done to meet one of their biggest threats: the antibiotics we use to try and kill them. Most of the people alive today never lived in a world without powerful antibiotics.  Penicillin was discovered in 1928 and its use ushered in what came to be known as the antibiotic revolution.  Before the development of antibiotics, people died in the millions from bacterial…
USA!  USA!  We’re Number –  Eleven? The Commonwealth Fund was founded in 1918 to create better, more accessible health care systems.  Since 2004, it has been conducting studies of the health care systems of the richest eleven countries in the world and ranking them on various measures such as access to health care, outcomes, administrative efficiency, and care process, which includes things such as preventative care and patient engagement.  In every one of the seven studies the Fund has conducted since 2004, the United States has finished dead last overall among the eleven countries surveyed.  This has been consistently so…
In 2001, the concept of “never events” was introduced.  The idea was that a never event was one which was identifiable, caused serious injury or death and was almost always preventable.  The original list has grown and there are now 29 recognized never events. Never events are grouped into seven categories. Surgical or procedural events Product or device events Patient protection events Care management events Environmental events Radiologic events Criminal events Examples of surgical events are operations on the wrong patient, on the wrong body part, right patient but wrong surgery or leaving a surgical instrument or foreign object behind…
I came across an interesting story recently that resonated with me because I have seen this in my practice.  A Kentucky woman who noticed a lump in her breast went to have it checked out at a local hospital.  The hospital performed a mammogram and then sent her a letter.  The letter stated that there was “no evidence of cancer” seen on the mammogram.  The woman, whose mother had died of breast cancer, was greatly relieved.  She should not have been. When the lump in her breast continued to grow, her concern returned.  After 10 months of pain, during which…
The Arizona legislature does not like you, if you have been a victim of medical malpractice.  They have enacted several laws which apply only to victims of medical malpractice and which are intended to make it more difficult for you to be compensated for the harm you experienced. Arizona began its life as a state as a bastion of progressive populism.  We had three provisions in our territorial constitution which gave power to the people:  Recall, referendum and initiative.  These provisions were so anathema to the moneyed interests that even then ran the United States that Arizona was prohibited from…
Medicine is an art, not a science.  There is far more that we do not understand about the human body than we do understand.  When you receive medical treatment or undergo a surgical procedure, no one makes you any guarantees.  Doctors hope for a good result when they treat you but everyone understands that the actual result may be far less than what the doctors were hoping for.  This has a definite application in medical malpractice cases. There are two main elements of proof in a medical malpractice case.  The first is that the health care provider did something wrong. …
People die in hospitals.  It is a fact of life.  Sometimes they die in spite of the very best medical care that we have to offer.  Sometimes, however, they die because they did not receive the care they should have.  Sometimes they die because of medical malpractice. If you have lost a loved one to a hospital death, please accept my condolences.  It is never a happy event.  Sometimes, the death has been expected for a long time.  Sometimes, however, it comes as a great shock.  Some of the ones that come as a great shock should not have happened. …
There are few things more devastating than a baby who dies or is badly injured during childbirth.  What should have been a happy occasion for celebration turns into tragedy.  The gaily decorated room at home prepared in anticipation of the arrival of the new baby is now a sad reminder of what could have been.  Sometimes, it is just God’s will that the baby will die or be damaged.  There is nothing anyone could have done.  Other times, the baby’s death or injury is due to human error.  That is when parents should come to see me. Human mothers have…
Most of the instances of medical malpractice I see in my practice are of the unintentional variety.  Someone made a mistake that ended up hurting a patient.  There is another variety of medical malpractice, however, and my partner and I do see it from time to time.  It is the intentional action by a doctor in violation of medical ethics which harms his (it is usually a male doctor) patient.  That is what I want to talk about today. Doctors who are defendants in medical malpractice cases benefit from the fact that the public has a great deal of respect…
An organism’s genome controls its destiny.  This is as true for the human genome as it is for the genome of the Covid-2 coronavirus.  It was less than 20 years ago that scientists first sequenced the human genome.  The project took nearly 15 years and cost over $2 billion.  Today, due to tremendous strides in computing power and other technical advancement, genomes can be sequenced in a matter of hours and for only $100.00. The Covid-2 pandemic has been both a curse and a blessing.  The curse part is obvious.  The blessing part is less obvious to the general public. …
Very few words stir more passion when discussing health care than “rationing.”  It sounds terrible.  It conjures up images of loved ones being denied life-saving treatment.  It gives rise to attention-seeking politicians claiming there are “death panels” coming for you and your grandmother.  A phrase with the same meaning, but not the same emotional overtones, is “resource allocation.”  Either way, they mean the same thing; rationing is here and has been as far back as you care to look. Here is an excellent article on the necessity of rationing health care and the ethics involved in that process.  I…