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Actor?s Wrongful Death Lawsuit Will Promote Better Patient Care
December 09, 2009

After three weeks of trial, actor James Woods' and his mother have settled their wrongful death lawsuit against Kent Hospital and their staff over the death of James Woods' brother, Michael Woods. The lawsuit filed by the Woods' family sought to prove that Kent staff was negligent because it missed or ignored signs of Michael Woods' impending heart attack and left him unattended on a hospital gurney in a hallway until he was stricken. Michael Woods, a two-time Warwick mayoral candidate, was 49 years old when he went to the emergency room at 4:25 p.m. July 26, 2006, complaining of a sore throat and vomiting that came on suddenly. An electrocardiogram showed he had an abnormal heartbeat. The doctor who treated him, Kelli A. Naylor, testified she'd ordered that he be put on a heart monitor, but that the nursing staff never followed through. Woods was sent to the x-ray department, and when he was brought back to the emergency room, instead of being put in a room, his gurney was parked by a wall near a nurses' station. It was there he suffered his fatal heart attack. He suffered a heart attack at about 7:10 p.m. and was declared dead at 7:30 p.m.

The Woods family announced along with hospital president Sandra Coletta the withdrawal of the lawsuit and a new joint effort by the hospital and the family to improve patient care. Besides undisclosed payments to Michael Woods' surviving daughters and son that James Woods said would leave them financially secure, the settlement included a promise by the hospital to invest $1.25 million over the next five years in the creation of the Michael J. Woods Institute at Kent Hospital. The Michael Woods Institute at Kent Hospital will develop policies and procedures to promote patient safety and improve internal communication about patient care, beginning in the emergency room. The effort will be run by a board that will include a Woods family member. The hospital will hire a patient safety officer to coordinate institute efforts.

The plan is for the institute to design "human-centered" policies and protocols to guide hospital staff. It was the perceived lack of that kind of approach that was the repeated target of Woods' lawyers in the case. Hospitals can have flow charts and chains of command, she said, but they are still staffed by human beings who can make mistakes. The Michael Woods Institute's mission will be to devise ways to create policies that will prevent them from happening, she said. Human errors in the health-care setting occur for a number of reasons, but at the root of many of them is poor communication," she said.

Woods said the impetus for the settlement came Monday night, with a phone call from Coletta. In that call, he said he heard something he'd never heard from Kent Hospital before, someone saying she was sorry for his family's loss.

Woods said the family's piece of mind about the agreement was helped when Coletta met his mother, Martha. "Sandra and my mother had a very personal moment, a mother-to-mother conversation," Woods said, calling it a "sweet and dear way to express sorrow." It was all I ever needed to see in my life," Woods said, "one human being saying to another human being 'I'm sorry for your loss.' "

For his part, Woods said the conclusion would give him, if not closure, some piece of mind about the meaning of his brother's death. It makes it possible for me to go to my brother's grave and ask if I've done the right thing," he said.

This tragedy helps to show the power of a lawsuit. Not only did the lawsuit help the family to get closure and give their family member a legacy while compensating the family for their loss so that the children of Mr. Woods will be taken care of, but the lawsuit did much more than that. The lawsuit also created a positive environment of change for future patients that will help save lives and create a better experience for patients and their families. Too many people believe that lawsuits are only about money. This case shows that lawsuits make our world safer for everyone. We at Montes Herald Law Group, strongly believe in this approach, and we try to utilize the lawsuits we have to file to create a change in culture to make a difference for everyone.

If you believe that you or your loved-one has been seriously injured as a result of medical malpractice or negligence or gross negligence, contact attorney Rachel Montes or Tom Herald for a free, no obligation case consultation. Visit the Montes Herald Law Group, LLP website at www.MontesHerald.com or call us at (214) 522-9401. Our law firm is located in Irving, Texas centrally located between both downtown Dallas and downtown Fort Worth. We are near both DFW Airport and Dallas Love Field. While we are located in the Metroplex, we represent clients all across the state of Texas.

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Patients Rights to Sue Doctors For Malpractice Is Being Challenged
November 25, 2009

While the Texas Supreme Court considers two very similar cases (Walters v. Cleveland Regional Medical Center, and Methodist Healthcare System v. Rankin) involving medical malpractice of doctors, nurses and hospitals for leaving sponges inside a patient, the Texas Attorney General Greg Abbott has filed a brief with the Texas Supreme Court urging the Court to dismiss the lawsuit filed by Emmalene Rankin. Emmalene Rankin discovered a surgical sponge lodged against her colon 10 years and eight months after her hysterectomy.

The two Supreme Court cases belong to a special class of medical malpractice claims known as "sponge cases" - cases where foreign objects are improperly left inside the patient following a surgical procedure. Unlike many lawsuits about mis-diagnoses or mistreatment, in sponge cases there is no question that a medical mistake was made and usually no question about who was responsible. As a result, the doctors and hospitals involved in these cases are very likely to be held responsible if they cannot get the Court to dismiss the claims for technical reasons.

Emmalene Rankin's Case:

In 1995, Emmalene Rankin had a hysterectomy at Southwest Texas Methodist Hospital in San Antonio. Ten years and eight months later, after pain sent her to a succession of doctors, a surgeon finally discovered the cause of her medical problems, an old surgical sponge that had been left inside her from her 1995 surgery was lodged in her abdomen.

Rankin filed a lawsuit against the hospital and two doctors, but the judge dismissed the lawsuit for violating the statute of repose, enacted in 2003 by the Texas legislature as part of "tort reform" legislation designed to lower medical and insurance costs by reducing the number of malpractice lawsuits and limiting the size of malpractice awards. According to the statute of repose enacted in 2003, "all claims must be brought within 10 years or they are time barred." The Court of Appeals re-instated the lawsuit last year ruling that the statute of repose violated the Texas Constitution's "Open Courts" provision. The Court of Appeals ruled that while "the Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit."

Attorneys for the hospital and doctors beingsued claim that the legislature intended to limit the time period that these claims can be brought. However, Rankin's lawyers point out that the intent of the legislature is irrelevant if the law violates the Constitution. The Texas Constitution trumps legislative power, patients must be given a chance to discover their injury before losing their constitutional right to access the court system, he argued.

This issue points out the issue on our legal system that the Constitution is the supreme law of the land, and the legislature does not have the power to enact laws that violate the Constitution. On other tort reform issues, the insurance companies and doctors' lobbies realized that the tort reform issues presented a constitutional problem so they brought the issue to the voters of the State of Texas by asking the voters to approve a constitutional amendment which enabled the legislature to enact the tort reform measures that limited damage awards.

Tangie Walters' Case:

Tangie Walters case is also a sponge case. In 1995, after giving birth to her child, Tangie Walters had a tubal ligation to prevent future pregnancies. Following the surgery, Mrs. Walters report abdominal pain that nurses at Cleveland Regional Medical Center dismissed as gas pains. In addition, Dr. Keith Spooner indicated that abdominal cramps were caused by uterine contractions from breast feeding, prompting Walters to bottle-feed her child. Over the next 9½ years, Walters visited several doctors to treat chronic abdominal pain and other ailments - bladder and lymph node infections, vaginal bleeding, pneumonia-like symptoms and fatigue. In 2005, a surgeon finally discovered the cause of her problems. The doctor found a sponge lodged against her small intestine. When these sponges and gauzes are left inside a patient after surgery, they can damage organs and produce inflammations, abscesses or a fibrous buildup that can be mistaken for a tumor.

Walters sued Spooner, the hospital and a nurse, but a Houston-area trial court dismissed the lawsuit for violating the statute of limitations. Walters appealed, arguing that the two-year time limit violated the Texas Constitution's open courts provision - which guarantees access to the legal system for those with a valid claim - because she did not have a legitimate chance to discover the cause of her chronic illnesses. The Court of Appeals dismissed the lawsuit and blamed Mrs. Walters for failing to diligently investigate the cause of her pain. Although the pain presented a reasonable opportunity to discover the sponge before the legal deadline, the court said, Walters waited two years and three months to begin seeing a succession of doctors.

"Pain itself can be an indicator of injury," the court ruled.

Each year, scores of lawsuits against medical professionals are dismissed because the Court finds that the patient did not bring the lawsuit in a timely manner. Often, such as in Mrs. Walters' case, the issue is whether the patient should have discovered the problem sooner and brought the lawsuit in a more timely manner. These issues are extremely difficult and complex, and greatly favor the medical professionals as patients do not have the ability and resources to diagnose themselves, and even the medical professionals they see for their problems often cannot determine the source of the problem for an extended period of time. Then, even when the problem is located, the procedural legal hurdles that have been put in place that are designed to discourage lawsuits from being filed against medical professionals take a substantial amount of time to complete before the attorney can even decide if a lawsuit is appropriate.

Richard Sheehy a lawyer for one of the hospitals involved in these two cases argues that patients should not be given an opportunity to discover the wrong-doing of medical professionals and to hold them accountable for their actions by urging the Supreme Court to create an absolute two-year limit on all medical malpractice lawsuits, whether or not the injury could be discovered before the time limit passed. "I certainly believe this court may decide that ... the Legislature may impose a strict two-year statute of limitations, and 'we're sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause."

In the end, these should be cases about providing the Constitutional guarantees to citizens of our state, but the political forces including the efforts of the Texas Attorney General are obviously at play in these matters as there is no explanation as to what the State's interest is to justify why the Texas Attorney General would try to get involved to lobby for doctors and hospitals in a private lawsuit. The concern about political influence is very real when examining the track record of the Texas Supreme Court over the past few years in protecting patient's and consumer's rights against big business, corporate defendants, and medical professionals.

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Texan At Risk Because the Texas Medical Board Is Not Disciplining Doctors
October 12, 2009

The Dallas Morning News reported that the Texas Medical Board has not followed up on its promise to get tough and to discipline doctors who engage in misconduct. According to the article, the Texas Medical Board is more focused on protecting doctors than the public. The article claims that 85 percent of the Board's investigations led to no sanctions at all, and the number of private deal-cutting meetings - the typical generator of lower-level penalties - more than quadrupled from seven years ago. The News also reported that of the 131 doctors were disciplined at the meeting. Only two had their licenses revoked, and then only because they quit contesting the cases against them. A handful of others were suspended or surrendered their licenses rather than fight. "We're not really in the business of jerking licenses," said Dr. Lee Anderson, a Fort Worth ophthalmologist. "Our primary purpose in the disciplinary process is remediation."

The importance of a Texas Medical Board that takes its business of disciplining doctors who engage in misconduct is critical. Texas is "a favorable location to practice medicine" because of a relatively strong economy and because the law in Texas imposes a cap on malpractice awards against medical providers which has discouraged patients from bring valid claims against medical providers who injure their patients through their negligence or gross negligence. Because of the limitations on damage awards in malpractice cases patients who previously filed malpractice suits are no longer able to find lawyers who are willing to file a lawsuit on a medical malpractice case, and now their only chance of holding the doctor accountable and protecting future patients from similar harm is by filing a complaint with the Texas Medical Board. According to the article, such complaints are up 35% compared to the time period prior to the imposition of the caps on damage awards.

In addition, the article pointed out that the process itself which is largely controlled by doctors and which is confidential calls into question its motives. By law, 12 of its 19 members are doctors. In addition, the process lacks transparency that the public needs from the Board to engender trust in its deciesions. Doctors have managed to enact laws that make the process secret. As a result, the public has no way of determining why the Board did not impose more significant disciplinary measures. Virtually all complaint and investigation records are confidential. Penalties generally are worked out privately and even Agreed orders do not reference patient names which makes the incidents more difficult to investigate by the general public. In addition, even when discipline is taken against a doctor, the patient involved in not notified of the discipline unless the patient filed a complaint.

The article cited several specific instances where the Board either imposed no penalty or what was presented as a slap on the hand despite the need to protect the public. The examples included:

•1) In August, the board announced decisions on four sex-related cases. Two involved doctors whom judges had already sentenced for crimes against children. Two involved psychiatrists found to have had affairs with adult patients - potentially sexual assault under Texas law, but they've not been charged. The child abusers were allowed to go on practicing medicine, though not with kids. The other two are working without restrictions.

•2) In August the Board also considered complaints against:

•a. Two doctors convicted of federal crimes. One of the federal convicts, was required to complete 22 hours of continuing medical education and must pass a test on legal issues;

•b. A neurosurgeon, Dr. Matthew J. Wills, who four times operated on the wrong body part four times whose punishment was requiring the neurosurgeon to complete 10 hours of continuing medical education. Dr. Wills now works as a neurosurgeon in Topeka, Kan., and according to the article, his boss called the sanction "over the top" and "a little bizarre."

•c. A cardiologist found to have performed dozens of invasive procedures with little or no cause; and

•d. Seven physicians linked to a death including an ER doctor who was too drunk to intubate a patient - a patient who then died. That doctor must complete substance abuse therapy and submit to urine tests.

•e. The Board said it was uncommon for a sex offender to keep his medical license, in the case of Dr. Jeffrey Klem, a cardiologist who is on criminal probation after twice pleading guilty to injuring a child, in 2007 in Beaumont and in 2009 in Houston. Board records say the Beaumont plea was a response to "three allegations of unwanted sexual contact with a minor." The board barred Klem from treating anyone younger than 21 for the next 15 years and required that he have a chaperone when treating adults. Dr. Klem must also consult with a psychiatrists, take a "professional boundaries" course and pay a $5,000 fine.

What does it take for the board to revoke a license? Consider the case of William Littlejohn, one of the two doctors who reached the end of the line in August. Dr Littlejohn ran a pain management and detoxification practice in Fort Worth but had been suspended since 2006, when the board deemed him "a continuing threat to the public health and welfare as a result of a mental condition." Board records say Littlejohn provided a mentally ill woman with large amounts of painkillers and a gun. She nearly died of overdoses and invested more than $600,000 in an urgent care clinic the doctor was running, the records say. Littlejohn acknowledged providing the gun, saying that the woman needed it to protect herself against violent relatives. Only later, he said, did he realize she was bipolar.

As of the end of the fiscal year 2009, there are:

•· Approximately 48,000 practicing statewide

•· 820 doctors are on medical probation

•· 3,129 newly licensed doctors in 2009

•· 6,968 complaints received by Texas Medical Board in 2009

•· The board has initiated 2,873 investigations

•· 411 doctors disciplined

•· Only 10 licenses were revoked

•· 21 licenses surrendered in lieu of disciplinary proceedings

You can check to see if you doctor has a disciplinary history by viewing the Texas Medical Board's Web site, http://www.tmb.state.tx.us/. Click "Check Your Doctor" in the blue bar on the left, then accept the usage terms and use the search form.

We encourage you to read the full article from the Dallas Morning News posted on October 11, 2009 as "Physician misconduct often tolerated by state medical board, analysis finds."

If you believe that you or your loved-one has been seriously injured as a result of medical provider's negligence or gross negligence, contact Rachel Montes or Tom Herald for a free, no obligation case consultation. Visit the Montes Herald Law Group, LLP website at http://www.montesherald.com/ or call us at (214) 522-9401.

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Medical Malpractice Article in the Huffington Post
June 17, 2009

The following is from an article published in the Huffington Post by Patrick Malone, an attorney in Washington D.C.:

I wish President Obama could meet one or two of my clients who are victims of medical hit-and-runs. When the President tells the American Medical Association that he is open to curbing the rights of injured patients to sue in court, he shows that he just doesn't understand either what they go through or how important their lawsuits are to protect the safety of other patients.

Medical hit-and-runs happen when a patient is gravely injured or killed by preventable medical error, but then the doctors and nurses pretend nothing happened. This occurs every day across America. Most patients lack the wherewithal to tell the difference between preventable harm and the normal "stuff happens" consequences of the disease they started with. So a policy of denial can quell embarrassing questions, at least for a time.

But when families find the truth, sometimes by accident and sometimes by hiring a lawyer, the trust and confidence these families had reposed in their caregivers vanish in an instant. Medical injury compounded by betrayal carries its own peculiar kind of pain: searing and long-lasting.

Why do victims of medical hit-and-runs need the right to sue in court? Certainly, the money is part of it. Financial compensation in court sometimes is the only way to stave off bankruptcy when a serious injury has destroyed someone's ability to work and left the family with an unending stream of medical bills.

Lawsuits are part of the healing process from medical injury. When an injury has attacked someone's dignity and identity, the ability to haul the betrayers into court and demand accountability is a powerful tonic. Not so much for revenge, but out of the feeling, as so many of my clients tell me, "I just don't want to see this happen to someone else."

By exposing incompetence and flawed system structures, hit-and-run victims help contribute to safety reforms that protect everyone.

If medicine had a well-oiled safety system, maybe we wouldn't need lawsuits. The problem is not too many lawsuits, but too many people getting hurt and killed because medicine has barely begun to take seriously patient safety. A full decade into the 21st century, our medical industry denies that patients have any legitimate role in monitoring and enforcing the safety of their own care. A complex structure of confidentiality and "privilege" laws ensures that safety reviews are conducted in secret and never reported in any publicly accessible forum.

The statistics released by the system do not support the medical industry's claim that robust enforcement of patient safety is taking place behind closed doors. Hospital peer review is the latest example. New data from the Department of Health and Human Services show that 49 percent of U.S. hospitals have never reported a single sanction against any physician's privileges to the national data bank to which they are required by law to report. This despite the fact that the same law was written twenty years ago to block patients from ever finding out the contents of any individual report. Patients just cannot understand peer review reports, the medical industry successfully lobbied Congress.

As for medical licensing boards, most of the serious discipline involves low-hanging fruit like practitioners who abuse drugs or alcohol or molest their patients. A study of medical boards' responses to criminal convictions found that two-thirds of the doctors convicted of insurance fraud received only non-serious penalties. Serious discipline for patterns of negligent harm to patients is rare.

Meantime, the system-wide efforts to address the pandemic of medical error all rely on voluntary efforts and the good will of well-meaning medical executives. When greed or arrogance or just short-sighted cost-benefit calculation frustrates reform, patients have only one recourse to force attention to safety: file a lawsuit.

Does the threat of lawsuits cause doctors to order unnecessary tests and treatments? This "defensive medicine" argument from the medical lobby has been around for a while, and objective reviewers like the General Accountability Office have never found any solid proof that defensive medicine even exists. The proof that it doesn't comes from the "reforms" that some states have implemented to crack down on patients' lawsuits. Texas and California, for example, have eliminated nearly all malpractice lawsuits, yet aggressive, procedure-intense medicine thrives in both states, making them among the most expensive in the nation for medical care. What drives high costs in medicine is the fee-for-service payment system that rewards doctors who order the most care, not those who order the most thoughtful, most effective care.

Hurting patients by failing to follow basic safety rules can be undeniably expensive for medical providers - and it should be. Our broken system needs lawsuits to force accountability and to bring urgency to the safety message. And that can potentially save billions. If the President and Congress focused on safety first, instead of costs first, we could create health care reform that would help everybody.

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