Articles Posted in Medical Malpractice

An Oregon Supreme Court ruling issued last week has received remarkably little coverage outside of the specialized legal press, but it deserves much more attention. In the case of Smith v Providence Health & Services (361 Or 456) the court reversed rulings from both the trial and appellate courts, and found that a legal doctrine known as Loss of Chance “is cognizable under Oregon common law.” In doing so, it significantly increased the rights of ordinary Oregonians confronted with failures or negligence on the part of the medical system.

As the Bend Bulletin, one of the few newspapers to have taken note of the case, aptly noted, the ruling means that Oregonians “can bring medical malpractice cases not only when they are injured but also when negligent care denies them a treatment with a potentially better outcome.”

The case revolved around a man “who went to a Hood River emergency room in 2011 concerned that he was having a stroke. Doctors discharged him without ordering an MRI or prescribing clot-busting drugs. By the time an MRI confirmed a stroke a week later (he) had incurred significant brain damage.” Both the article and court’s opinion note that had these precautions been taken there is a one-in-three chance that the plaintiff would have recovered substantially, perhaps even completely, from the stroke.

The sentencing this week of a former Kaiser Permanente nurse on charges of sexually abusing five women under his care should remind us all of the responsibilities hospitals, nursing homes, other care facilities and their staffs have toward their patients.

According to The Oregonian the 38-year-old man “pleaded guilty in Washington County Circuit Court to attempted second-degree kidnapping, second-degree invasion of personal privacy, third-degree sexual abuse and computer crime.” He was sentenced to two-and-a-half years in prison and will be required to register as a sex offender.

The newspaper notes, however, that in addition to the criminal phase of the trial, which is now over, two of the man’s victims “have since filed suit against Kaiser Permanente – where he worked for two years – alleging negligence by the medical company and sexual abuse and exploitation.” These charges are both significant and serious. Hospitals, nursing homes and other care facilities have an obligation to ensure that their staff are interacting with patients in a proper manner, and to report any suspected abuse immediately (see the Oregon Department of Justice and Oregon Department of Human Services links below for more information).

The extraordinary news of a lawsuit filed this week in Los Angeles alleging that a major university looked the other way as a school doctor abused students, some of them Olympic-level athletes, is a stern but necessary reminder of the role our courts play in holding abusers to account.

According to detailed reporting by ESPN “officials at Michigan State University missed early warning signs about… the school doctor and former USA Gymnastics team physician accused in recent months of multiple sex crimes.”

According to ESPN, citing legal proceedings, the team doctor conducted what he called “inter-vaginal adjustments” on an 18-year-old athlete who had come to him for treatment of back pain. Over time the ‘treatments’ became more and more intrusive to a point where few reasonable people reading the descriptions of them could characterize them as anything other than sexual assault.

A story published this week in The Oregonian focuses on the suicide of a teenage boy who was living in a Corvallis residential treatment facility and on accusations that the facility falsified care records in an attempt to evade responsibility for its actions. There are broader issues also raised by the case, however, and I would like to take a few moments to examine both the issues raised by the newspaper and the ones that also merit our attention.

According to The Oregonian the boy, age 15, died last August. A state investigation showed that he was supposed to be closely monitored while in the facility, with staff checking on him every 15 minutes. Though the care center’s records indicated he had slept through the night, a state investigation showed that he had been left alone for 40 minutes at one point that evening despite having “told staff earlier in the evening that he was suicidal and had been bleeding from self-inflicted arm wounds.” The newspaper adds that the investigation turned up other instances in which “patients told regulators they also had gone without scheduled check-ins by the center’s employees.”

The focus of the newspaper story is on the alleged falsification of records and this is obviously a serious issue. If proper, legally required, records are not kept by caregivers and facilities it is impossible for patients to get the treatment they need and extremely difficult for cases of medical malpractice or nursing home abuse and neglect to be proven either while they are unfolding or after the fact. To be clear: this is an extremely important issue and one where it is critical to everyone’s health and well-being that federal, state and local regulators do their jobs.

A lawsuit filed last week by Oregon’s ACLU is shining a light on the state’s obligations to provide medical treatment for prisoners, according to a news release from the group and coverage in The Oregonian. Last week the group filed suit on behalf of a transgender woman who is currently an inmate at the Two Rivers Correctional Facility in Umatilla. The ACLU says the prisoner “is being denied essential medical care. The suit… argues that it is cruel and unusual punishment to deny medically-necessary care to prisoners.”

The Oregon Department of Corrections’ own “Health Services” web page acknowledges that “state and federal laws have established that inmates are entitled to health care during incarceration. Health care services available to inmates must be comparable to health care provided in the community in order to meet the state’s legal obligation. This means that all types and levels of health care must be provided in a clinically appropriate manner by properly credentialed professionals in settings equipped and designed for the delivery of health care.” By these parameters health care, legally speaking, has to be considered a civil right where prisoners are concerned. Denial of appropriate care, therefore, can be challenged using 42 US Code 1983 – a key legal text concerning civil rights. 42 USC 1983 allows anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” to sue the person or institution which violated those rights in civil court.

So if we take that acknowledgement by the state DOC as a starting point, the question must be asked: how can the agency defend the conduct alleged in the ACLU lawsuit? Specifically, the group charges that the state has denied its client’s repeated “requests for hormone treatment, despite an official diagnosis of gender dysphoria. The lawsuit also accuses state officials of placing (the plaintiff) in segregation or solitary confinement for weeks and sometimes months at a time,” the newspaper reports. When placed in a Disciplinary Segregation Unit following a suicide attempt earlier this year “staff mocked her and called her a ‘freak’ and other vulgar names,” the suit alleges. A mental health professional who evaluated the woman on behalf of the DOC referred to her repeated requests for essential hormone treatments as “quality of life issues” according to The Oregonian, and repeatedly referred to the prisoner using male pronouns (the 25 year old prisoner has publicly identified as female since the age of 16).

The announcement last week that the federal government will bar most nursing homes and other care facilities from forcing clients to sign care contracts requiring them to settle disputes in arbitration is an enormous victory for ordinary Americans – one that deserved more attention than it received in both the national and local media.

As the New York Times noted: “With its decision, the Centers for Medicare and Medicaid Services, an agency under (the Department of) Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country: their day in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term health care facilities in more than two decades.” Because virtually every nursing home and care facility in the country receives funds from either Medicare or Medicaid (and often from both) the rule is, effectively, universal. The rule change was essential to curb the spread of arbitration since a 2015 Supreme Court ruling (DIRECTV v Imburgia) which not only held that arbitration clauses are legal but also threw out state-level bans on the practice.

Obviously a federal law banning forced arbitration clauses can’t be passed in Washington’s present polarized political climate, but with last week’s decision the federal government effectively used the leverage that comes from being the largest single player in our healthcare system to put citizens ahead of corporate profits. The new federal rules effectively overturn the Court ruling in the area of nursing homes and related services.

According to the Oregon Department of Prisons website our state first experimented with private prisons in the late 1800s. The state penitentiary “was leased to a private company… Since this concept was becoming very popular nationwide, Oregon’s legislature approved the experiment.” It did not last long. “In one day every inmate at the penitentiary escaped. Most walked out the front gate.”

This amusing historical nugget is a reminder that some ideas never quite go away – in this case the idea that private companies are always more efficient and that their need to make a profit will not result in either sloppy work or abuses (the 19th century version of private prisons made their money mainly by hiring the prisoners out as labor). Today, private prisons are illegal in Oregon, and our state is one of 11 that do not use the private system at all, according to a 2012 report by The Sentencing Project. An announcement by the Obama administration last month that the Federal government will phase out its use of private prisons is also likely to put a dent in the industry.

As a recent article in The New Yorker outlines, however, beyond the full-scale privatization of prisons the growth of all prisons over the last generation along with America’s collective assumption that private services are always superior to public services has led to some shocking arrangements in both government and private-run prisons. These often deny basic civil rights to prisoners with the goal of making money for the government. For example, the magazine notes, “short phone calls from prison can cost up to fifteen dollars, largely because the companies operate as monopolies within prison walls. The private companies also offer state and local authorities a percentage of their revenue, which contributes to the cost of the calls and creates other perverse incentives. Some jails, for instance, have removed in-person family-visitation rooms to make way for ‘video visitation’ terminals, provided by private firms, which can charge as much as thirty dollars for forty minutes of screen time.”

The Oregonian reports that a Beaverton nurse was allowed to continue working with patients while under investigation for sexual misconduct on the job and allegedly committed a similar offense during that time. The incident, if the facts are as reported, raises serious questions about how the nurse’s employer, Kaiser Permanente, deals with abuse allegations among its employees. The result is a case which concerns both hospital malpractice and sexual assault.

According to the newspaper the 37-year-old North Plains man was indicted earlier this month “on one count of first-degree criminal mistreatment, three counts of invasion of personal privacy, two counts of computer crime and four counts of third-degree sex abuse, police said. The charges relate to three alleged victims, but detectives have identified two more and are investigating their claims.”

The claim that the man was allowed to keep working is particularly striking when one considers how quickly the case has moved. Far from being something that has dragged on for many months or years, The Oregonian reports that “police first started investigating (the nurse) on Jan. 28 after a woman reported that he made sexual statements to her and sexually touched her during a visit to the Beaverton clinic two days earlier.” In other words, this case has gone from initial allegations to a wide-ranging indictment in about nine weeks – a case of the criminal justice system moving fairly quickly. Despite that, however, it is hard to imagine another workplace context where an employer would regard it as OK to keep an employee accused of sexual assault in a position to recommit the alleged offenses.

It is an election year, so between now and November we can expect to hear many politicians at the national, state and local levels complain about trial lawyers and call for “tort reform.” As an article published this week in Slate outlines, however, an often disingenuous campaign designed to ‘protect’ big business frequently has an even more shocking effect – protecting child abusers and other people who injure children.

The article begins with the story of an Ohio pastor who was convicted of raping a 15-year-old girl in 2008. In addition to his criminal trial the man was sued by the girl and her family in civil court. As I have written in this space on many occasions, this right alone is important and worth defending. Access to courts for victims and their families is essential if justice is going to be served. As the article notes, quoting a legal scholar at New York University, often “the civil justice system is the only way for a perpetrator to be held directly accountable to the victim.”

A court awarded the victim $3.6 million in damages, but because of award caps required under Ohio’s tort reform laws she was only able to collect $350,000 – less than one-tenth of what the jury decided was her due. The girl and her family are now suing to have those caps declared unconstitutional on the grounds that they are “arbitrary and unreasonable, and thus a denial of due process.” Specifically, there is a strong argument to be made that damage caps violate the US Constitution’s guarantee of a trial by jury. An inherent part of that right is letting the jury decide what is fair – something that the tort reform movement seeks to stifle.

A groundbreaking three-part series published last week by the New York Times has drawn much-needed attention to a problem threatening almost everyone in America despite the fact that many people are not even aware that it impacts them directly.

As the paper reports in part one of the series: “Over the past few years it has becomes increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.” As the series goes on to detail, while arbitration may originally have been conceived as a way for businesses to resolve disputes among themselves more quickly and cheaply than by using our courts it has become a more-or-less routine way for corporations to tilt the field in their favor in any dispute with their customers. The newspaper quotes a federal judge in Boston who aptly describes this development as “among the most profound shifts in our legal history… Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

What makes the new realities outlined in the Times so scary is how widespread they have become in the years since 2011 when a Supreme Court ruling opened the way for wider use of arbitration clauses and made filing class action lawsuits more difficult. The system is particularly lopsided because the growing class of professional arbitrators who administer it generally rely on large corporations to bring them repeat business (an arbitrator must be approved by both sides to a dispute, but large companies have far more knowledge of who they are agreeing to, and can make it clear they will not pick a given individual again if he or she rules against the company) – a conflict of interest that the Times examines at length and which strips away even the thin façade of impartiality that surrounds the arbitration process.