First of all we have to define damages.  Damages are defined as monetary compensation for loss or injury to person or property.  There are essentially two types of damages in a medical malpractice case. The terms have changed over the years but damages are currently named economic damages and non-economic damages.

Economic damages are essentially anything you can place a dollar sign in front of.  In medical malpractice cases this includes compensating the victim for monetary damage including medical bills, lost wages and other miscellaneous costs.  Medical bills include both past and future medical costs.  For example, if a person has their leg amputated as a result of medical malpractice the past medical bills for the unnecessary amputation are recoverable.  The injured person would also require future medical costs including a prosthesis for example.  These future medical costs are also recoverable as compensation.  Lost wages are also recoverable, both past and future.  In the amputation example the person probably lost wages while he recovered from the amputation.  Also recoverable are wages forgone as a result of the amputation.  If the individual had been a football running back he would be probably entitled to claim future lost wages as well.

Non-economic damages are the intangibles.  Essentially losses that you cannot put a dollar sign in front of.  Staying with the example of the unnecessary leg amputation as a result of medical malpractice it would be obvious that person endured pain as a result of the amputation.  Pain is a real injury and should be compensated.  The loss of a leg seriously alters a person's sense of self and that is a real loss and should be compensated.  The loss of a career is a real loss and should be compensated. It is sometimes to difficult to determine the monetary value of the the intangible loss but they are real and need to be compensated.

Legislators across the United States have introduced legislation that limits the amounts of money that juries can award for non-economic damages.  The question is whether the placing of such limits is constitutional.  The Seventh Amendment (Amendment VII) to the United States Constitution, which is part of the Bill of Rights, codifies the right to a jury trial in certain civil cases.  The Seventh Amendment reads:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment was meant to act as a check on the abuse of power by the government.  Without going into technical legal argument the main thrust of the Seventh Amendment is to restrict the interference of government into the decisions of juries.  The idea is that juries are in the best position to determine what monetary compensation is the correct amount.  Once decided there should be no reexamination of the amount and the verdict should be left alone.

What the jury decides should not be later changed by the Court or by government legislation that infringes on the right to trial by jury.

I recently read a very interesting article titled Surgical Error: The Difference Between Mistake and Complication by Dr. Martin Young.  Dr. Young claims that when a surgeon has to deal with serious, undeserved complications he deserves to be compensated adequately to make right that harm.  Dr. Young then goes on to set out the difference between a complication and a mistake.

Dr. Young defines a complication as "... an adverse event caused by pre-existing factors that were outside the doctor’s control."  He states that a mistake "assumes there was a lapse of either quality or control by the surgeon out of keeping with normal expectation."  He then describes a few examples between the two.

Dr. Young then states,  "So who cares?  As long as surgeons operate, complications will occur.  Insurers, hospital managers, healthcare systems have highly vested interests in limiting both complications and mistakes, as do doctors.  We remember these long after our successes are forgotten.  So do our patients."  I offer to Dr. Young that it is the patient and their family that are left to deal with the aftermath in the most personal way imaginable - often having to deal with the results for the rest of their lives if they are fortunate enough to survive the complication or mistake.

Discussion of medical malpractice lawyers follows and he states"... lawyers will fall over themselves to show that a complication was in fact a mistake worthy of financial retribution."  That is so because no physician who makes a mistake is willing to step up to the plate and offer financial compensation to the injured patient.  I have said it before and I will say it again - if physicians simply policed themselves better, took serious steps to prevent medical malpractice, and fairly compensate the victims of their medical malpractice then medical malpractice attorneys would be out of a job and medical malpractice premiums would plummet.  Everyone would be better off.  Do not worry about me finding work!

Dr. Young thinks that "A doctor with a higher incidence of mistakes may profit from his relative lack of skill until the general population wises up to the fact and goes elsewhere."  The problem with this statement of course is that the general public is kept in the dark about the doctors who commit medical malpractice.  Through forced arbitration agreements and forced confidentiality clauses when settling a medical malpractice case the public simply does not know who the bad doctors are.  In Utah the problem is compounded with the 2011 passage of Senate Bill 150.  Hospitals may no longer be held responsible for credentialing doctors and granting hospital privileges to doctors who may be pedophiles, predators, drug addicts and otherwise incompetent.  Unbelievable but sadly true.  It would appear that the rights of the public has again been subjugated to the narrow interests of the powerful hospital lobby.  

I have a question for good doctor Young.  If the cutting of a ureter during an open hysterectomy is a known complication and the surgeon takes no steps whatsoever to identify the ureter and then, during the course of the operation, transects (cuts) the ureter, is that a complication or a mistake? I suggest that it is a mistake and the surgeon has committed medical malpractice. 

Furthermore, the only one who will hold the physician responsible is a medical malpractice attorney.  I do not know a single surgeon who will step up and "sorry - I failed to take the correct precautions and cut your ureter - here is the money to pay for your medical bills and money to compensate you for the pain and suffering you have endured as a result of my negligence."  In this country an individual should be held responsible for the harm he or she visits on another individual.  That is why car drivers are insured, that is why doctors should have medical malpractice insurance, and that is why I carry professional legal malpractice insurance.  I make no apology for what I do as a medical malpractice attorney.  To the contrary I am proud to represent the people and families I do against the deep pocketed and unrepentant medical malpractice insurance companies who in their eyes insure doctors that are infallible.  I am not infallible and freely admit that I have made mistakes as a registered nurse, an attorney, and in life.  It is high time that surgeons admit that they are not infallible either.

We represent people and their families that are harmed as a result of medical malpractice across Utah including the counties and cities of Beaver, Box Elder, Cache, Carbon, Daggett, Davis, Duchesne, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Morgan, Piute, Rich, Salt Lake, San Juan, Sanpete, Sevier, Summit, Tooele, Uintah, Utah, Wasatch, Washington, Wayne, Weber, American Fork, Beaver, Bountiful, Brigham City, Cedar City, Delta, Draper, Duchesne, Fillmore, Heber, Kamas, Kanab, Kaysville, Layton, Lehi, Logan, Moab, Murray, Nephi, Ogden, Orem, Park City, Price, Provo, Richfield, Riverton, Roy, Salt Lake City, Sandy, South Jordan, St. George, Tooele, Vernal, West Jordan, and West Valley City.

A recent article caught my eye in cafemom - a great website for mothers and soon-to-be mothers.  The website offers great articles that can be a lifeline.  The article that caught my eye was Delivery Room Video Camera Ban Coming to Your Hospital Next talking about hospitals and why they will not allow capturing the birth of your baby (babies) on video.  If you are interested in reading that article make sure to read the comments too - some support the ban and others not - good reasons on both sides.  The cafemom article actually references another article on care2 a website that focuses on making our world a better place.  The article at care2 is titled What If Cameras Were Banned From the Delivery Room?

I can appreciate the reasons why birthing mothers do not want to be caught in the act of giving birth.  I can also appreciate the reasons why many mothers want to catch the moment when their newborn enters the world.  What I cannot understand is why hospitals and doctors will not allow families the choice to record that moment.

In a just world, if a physician acts negligently while delivering your child he or she should be held accountable for that negligence.  After all we can all make mistakes.  That is why we carry insurance.  The recording of the birth may show negligence and if that recording is entered into evidence during an obstetric medical malpractice case so be it.  However, the recording might also serve to prove that no negligence occurred and the case will fail.  If there is no negligence the recording will be used to clear the physician and hospital of any negligence.  The choice to record the birth of your baby should be up to the parents and not the hospital - at least in my opinion.

One of the comments on the cafemom article talks about having the nurses and doctors in the recording and raises concerns for their privacy.  First of all the recording need not include them in the image at all.  Furthermore, they are often in a public place - a hospital often paid for, at least in part, with tax-payer money - where they should be no expectation of privacy for the doctor or staff.  That same comment also talks about shoulder dystocia but fails to recognize that shoulder dystocia can often be prevented and save the baby from a lifetime of pain and having to deal with a damaged arm.

Shoulder dystocia occurs after the delivery of the head, the anterior shoulder of the infant cannot pass below the pubic symphysis, or requires significant manipulation to pass below the pubic symphysis.  Shoulder dystocia can be sometimes anticipated but if the baby is in jeopardy the team delivering your baby has to know what to do.  One of the better articles can be found at theclinics.com. 

If your child were a 10-year-old and was in a crosswalk and struck by a driver who was not paying attention you would probably sue the driver for the injury caused to your child.  If your baby is harmed by the negligence of your obstetric physician or the hospital staff you should sue to compensate your child for having to suffer as well. While you may or may not agree with either of my views I think you will agree that the right to record the birth of your child should be up to you.

George Tait Law is a law firm and its lawyers represent injured people and their families across Utah including the counties and cities of Beaver, Box Elder, Cache, Carbon, Daggett, Davis, Duchesne, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Morgan, Piute, Rich, Salt Lake, San Juan, Sanpete, Sevier, Summit, Tooele, Uintah, Utah, Wasatch, Washington, Wayne, Weber, American Fork, Beaver, Bountiful, Brigham City, Cedar City, Delta, Draper, Duchesne, Fillmore, Heber, Kamas, Kanab, Kaysville, Layton, Lehi, Logan, Moab, Murray, Nephi, Ogden, Orem, Park City, Price, Provo, Richfield, Riverton, Roy, Salt Lake City, Sandy, South Jordan, St. George, Tooele, Vernal, West Jordan, and West Valley City. George Tait Law and its attorneys are licensed to practice law only in the State of Utah and maintain offices in Salt Lake City, Utah. No attorney client relationship is established by simply visiting this website.

McKnight's Long-Term Care News & Assisted Living recently published an article titled Falling Risk for Residents Increases After Antidepressant Changes stating that nursing home residents have a five-fold increased risk of falling in the two days immediately following a change in the dosage of certain antidepressants.  Specifically, non-SSRI (selective serotonin reuptake inhibitors) antidepressants such as Wellbutrin and Effexor, appear to increase the risk of falling.  The article states,

Experts suspect the falls could be related to acute cognitive or motor effects linked with the medications. Non-SSRI antidepressants such as trazodone (Desyrel) can cause postural hypotension — a dramatic decrease in blood pressure when a person goes from sitting to standing — which could also be a factor, the researchers wrote.

The study's lead author, Sarah D. Berry, M.D. found that the risk of falling was much higher within two days of a change in a non-SSRI prescription.  Berry suggests that "nursing home staff should keep a watchful eye on residents in the days following a non-SSRI antidepressant change to prevent falls and clinicians should avoid making changes on weekends or during times when unfamiliar staff is present."

The study was published in The Journals of Gerontology titled Antidepressant Prescriptions: An Acute Window for Falls in the Nursing Home concluding:

If you are planning an operation in a hospital in July you should be forewarned that it is dangerous.  In fact hospitals are more dangerous in July than any other month of the year!  Why - because new resident physicians start their training in July.  The seasoned and experienced doctors-in-training move on and the new crop of newly minted doctors take over.  Sound scary?  It is!

Mortality increases and efficiency decreases in hospitals because of year-end changeovers, although heterogeneity in the existing literature does not permit firm conclusions about the degree of risk posed, how changeover affects morbidity and safety, or whether particular models are more or less problematic.

In other words, and please forgive the scholarly language of the authors above, the "July Effect" is life and well - even though you might not be.Two major issues contribute to the increased mortality and morbidity. 

First of all, as the new physicians come on there is an obvious decrease in clinical know-how. Typically, residents work lousy hours.  The more seasoned attending physicians usually exit the hospital when the day is done and leave their patients in the care of residents - the new residents that is.  Obviously the attending physicians have put in their time and are senior tot he young new residents and obviously do not want to work the night shift.  Hold on you say - I am sure if there is a problem the new residents can get in touch with the attending physicians.  Maybe - maybe not.  This is the training environment for new physicians and it is a competitive environment.  The new resident finds himself or herself in a novel situation for which they have trained.  They decide that instead of calling their attending doctor (who later in the year evaluates the resident) to treat the patient - maybe correctly - maybe not.

The second issue, is that these new resident physicians are thrust into an environment that is new and alien to them.  They are in a hospital that is new to them.  New protocols and ways of doing things.  They way orders are written is new and the reporting system is new.  Inevitably mistakes are made.  That is the July Effect.

I was a nurse at the University of Utah for years before I became an attorney and can attest to the fact that the July Effect is live and well.  Compound these problems with the long hours that resident physicians work and you are asking for problems.

You can read more at The Wall Street Journal, The Boston Globe, and at The New York Times but be aware and maybe change the date of that elective procedure you were planning. 

We represent people and their families that are harmed as a result of medical malpractice across Utah including the counties and cities of Beaver, Box Elder, Cache, Carbon, Daggett, Davis, Duchesne, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Morgan, Piute, Rich, Salt Lake, San Juan, Sanpete, Sevier, Summit, Tooele, Uintah, Utah, Wasatch, Washington, Wayne, Weber, American Fork, Beaver, Bountiful, Brigham City, Cedar City, Delta, Draper, Duchesne, Fillmore, Heber, Kamas, Kanab, Kaysville, Layton, Lehi, Logan, Moab, Murray, Nephi, Ogden, Orem, Park City, Price, Provo, Richfield, Riverton, Roy, Salt Lake City, Sandy, South Jordan, St. George, Tooele, Vernal, West Jordan, and West Valley City.