How does all this relate to medical malpractice?  It is an example of the attitude that pervades the medical profession today that measures the possibility of saving a life by statistical probability and cost.  The medical profession refers to it as “defensive medicine”.  I see it over and over in cases where a physician has elected to not perform a test or procedure on a patient which could have revealed valuable information about a patient’s condition and which would have led to intervention saving the patient’s life.  The physician, and his or her lawyer, defends the failure to do the test or procedure by claiming that performing such test or procedure was not justified because statistically, it would not have been positive, and because it would cost too much. 

        We are the most advanced nation in the world in medical technology and knowledge.  If you or a loved one has a potential life threatening condition about which a test or procedure might reveal important information for life saving treatment, would you want that test performed even if the physician felt that “probably” the test would be negative but could be helpful?  Would you be satisfied with an explanation that, even though it might reveal important information, in the doctor’s opinion, the cost didn’t justify the possibility it would be helpful?  I know I would!  Isn’t every patient in our country entitled to the same consideration? 

        Rather than rationing medical treatment based upon statistics and blaming the cost of medical care on “defensive medicine” to avoid a medical malpractice lawsuit, shouldn’t the benefit of the doubt go toward the possibility of obtaining information to save the patient’s life?  What about reducing healthcare costs by eliminating every hospital in a community having duplicate expensive diagnostic machines?  What about eliminating hospitals paying for television commercials to get patients to come to their hospital when they get sick?  What about analyzing how to reduce the cost of healthcare without basing such analysis on how we keep health insurance companies making huge amounts of money?

        Many, perhaps most, women are outraged by the rationale behind this recent commission recommendation, i.e. that the potential benefit of revealing breast cancer at an early stage is outweighed by the “anxiety” of a false positive from a mammogram and the possibility of needing to have a needle biopsy.  I know my wife is.  She has been through a false positive experience and had the biopsy.  Asked if she would do the mammogram again having gone through this experience, her response was “Are you kidding, yes!”

- Neil Hillyard

            Recently a former patient of Exempla St. Joseph requested that I review the care provided to her and her infant son.  Initially the hospital representative indicated that the hospital now had its records in electronic form rather than paper.  She advised I could come and look at the computer screen but had to have a hospital representative looking over my shoulder and my client had to pay for that person’s time!  We then indicated we wanted to bring a disk to the hospital and have the record downloaded from the computer which would not cost the hospital anything.  The hospital refused to provide an electronic copy and insisted that a paper copy be provided at a cost of over $400.  The hospital attorney indicated, when asked, that this was not because an attorney was involved but that the same policy would apply if a patient was directly requesting his or her medical record, such as if moving to another area of the country and wanting to take the medical record with them.  The hospital attorney also made it clear that the hospital had the technical ability to download the record but simply refused to do so.

            This is another example of corporate greed and total disregard for the rights of patients.  As noted above, federal law requires that Exempla St. Joseph Hospital charge no more than the actual cost of copying the medical record for a patient.  It does not cost the $400 plus to press a button on a computer to download a medical record onto a disk or drive.  If you seek an electronic copy of your medical record from this hospital, or any hospital which attempts to deprive you of an electronic record and overcharge you in this manner, file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services.                                                                                     

            - Neil Hillyard

- Steve Wahlberg

Personal injury damages include the following:  lost earnings, lost earning capacity in the future, past medical expenses, future medical expenses, along with non-economic damages for pain, suffering, emotional distress, impairment/disability and disfigurement/scarring.  In the event that a health insurance company or governmental agency has paid an injured person’s medical expenses, they may claim reimbursement or subrogation from any award.

- Steve Wahlberg

- Michael Nimmo

The attorneys of Hillyard, Wahlberg, Kudla & SLoane, LLP, all members of AAJ, and the state associated organization, the Colorado Trial Lawyers Association (“CTLA”) strongly support AAJ’s efforts to protect the rights of those injured by the negligence of others.

- Daniel A. Sloane

Colorado does require hospitals, ambulatory surgical centers, and dialysis centers to report cases of hospital-acquired infections to the CDC to be analyzed.  Currently The Colorado Department of Health is publishing reports that include infection rates for certain cardiac and orthopedic surgical site infections and central line related infections.  These reports are available for public viewing at http://www.cdphe.state.co.us/hf/PatientSafety/HFAI/reports.html and compare infection rates as better than nation wide, same as nation wide or worse than nation wide.

The Washington Post recently published an article that discusses a survey of 731 nurses who care for patients in the emergency rooms, critical-care units, operating rooms and other areas of the hospital.  28 % of the nurses said there were problems with cleanliness at their hospital and 26 % of the nurses surveyed said hospital staff members sometimes did not wash their hands before approaching a patient.  www.washingtonpost.com/wp-dyn/content/article/2009/08/24/AR2009082402332.html   

Good hand washing is the single most important element of preventing hospital-acquired infections yet it is often over looked or totally neglected during patient care – such that a single medical provider can carry infection around an entire unit, this person could be a doctor, nurse, nurse assistant, a lab or x-ray tech.  -  Medical Providers should always wash their hands prior to any contact with a patient or a patient’s belongings and again after that contact is complete. If you are a patient tell your health care provider to wash their hands before touching you or your belongings.

- Pennie Clor

- Steve Wahlberg

- Michael Nimmo

          Many personal injury lawyers are advertising on TV today.  This is not the way to find a personal injury lawyer!  Unfortunately, in my opinion, our profession has been degraded by this type of advertising.  Most of the lawyers who do this are merely seeking a volume of clients.  Ask yourself what useful information you get about the attorney from that TV advertisement.

          There are resources easily available to you to find the best personal injury lawyers.  There is a publication and a website called Best Lawyers in America which identifies lawyers by specialty, including personal injury and medical malpractice.  You can easily get valuable information about the lawyers who have been voted into this publication by their peers, other lawyers.  You can then go to the lawyer’s website and find detailed information about the lawyer.  Look for a lawyer who has years of experience in personal injury law and who has been recognized by his or her peers as one who is a leader in this field.

          If you know a lawyer who does not practice personal injury law, call that lawyer and ask him or her for a recommendation.  Most likely they will know who has the best reputation in personal injury law.

          Whatever path you take in finding a personal injury lawyer, don’t just call the TV lawyer who makes claims about how wonderful he or she is.  Anyone can buy an advertisement on TV.

        - Neil Hillyard