Attorney Blog

Nurses and healthcare workers exposed to chemo at work

fkearney@dkllp.com (blog Author)35152 — Wed, 14 Jul 2010 08:00:00 EST

It didn't take long for me to realize what a heavy duty job nursing is and how often nurses get injured at work in D.C. hospitals. Nurses, OR technicians and other healthcare workers get hurt lifting patients, moving patients from the operating room to the floor, turning patients - you name it. And lifting patients can cause back injuries, rotator cuff tears, neck injuries.

But recent studies show that nurses and other healthcare workers exposed to chemo - while administering it to cancer patients and working around it - may be at greater risk for developing cancer themselves.

A Danish epidemiology study of more than 92,000 nurses found an elevated risk for brain cancer, breast cancer and other types of cancer. Part of the problem is the chemotherapy agents - that can be found on counter tops, door knobs, handles, etc. are invisible, difficult to clean, long lasting and easily spread.

To read the article profiling one nurse's courageous story to get the word out, click on the title above.

Workers Comp Deadlines

blog@www.donahoekearney.com (news Author)15916 — Fri, 02 Jul 2010 08:00:00 EST

This injured worker is out because her workers comp lawyer didn't file her case by the deadline. He waited until the last minute, then was hospitalized and couldn't do it within the time frame.

Workers compensation is governed by a statute that applies to all cases - and the law, rules and regulations that govern injuries at work are often unforgiving if they are not followed.

It shows how important it is to have an experienced attorney represent you for any serious injury - whether its an injury at work, due to a car accident or because of medical malpractice by a doctor, hospital or HMO. All of these cases have specific deadlines, statutes of limitations and regulations that differ by type of case and jurisdiction.

Preventable Medical Mistakes

fkearney@dkllp.com (blog Author)34543 — Fri, 02 Jul 2010 08:00:00 EST

Preventable medical mistakes or errors don't happen when healthcare companies, HMOs and hospitals put patient safety first. Patient safety means preventing mistakes using a variety or systems, guidelines, protocols and checks.

When investigative healthcare journalists analyzed the data from Las Vegas hospitals over a two year period they found 969 incidents of injuries or death from medical malpractice that should have been prevented.

Hopefully this type of reporting will lead to more transparency and accountability. Click on the title above for additional information and a link to the article.

Medical Literature Ghostwriting

fkearney@dkllp.com (blog Author)34450 — Thu, 01 Jul 2010 08:00:00 EST

Medical literature should be just that - written by physicians. And it should improve patient safety and care. But a study commissioned by Sen. Grassley revealed some startling facts about the practice of ghost writing. Ghost writing is basically drug companies and medical device makers trying to game the system by planting favorable articles and studies in the medical literature. This is done by hiring writers who "ghost write" the article about a product or device the company is pushing and then have a physician or scientist sign off on it - as if they were the one who wrote it.

One notable instance of manipulating scientific data cited in the report was in the marketing of Vioxx - which was removed from the market in 2004 because of cardiovascular risks.

In medical malpractice cases advocating for patient safety, patients are sometimes faced with healthcare "experts" trying to pick and choose medical literature to defend a hospital, HMO or healthcare corporation's preventable medical errors.. Wonder how many of those articles are ghost written?

Medical Literature Ghostwriting

blog@www.donahoekearney.com (news Author)15820 — Mon, 28 Jun 2010 08:00:00 EST

Medical malpractice lawyers use medical literature on behalf of patients against hospitals, HMOs and doctors in many cases. And hospitals, HMOs, doctors, drug companies and medical device manufacturers sometimes rely on medical literature to defend their positions or get their products used, sold or prescribed.

A Congressional study has exposed ghostwriting on behalf of some drug companies and medical device makers. Ghostwriting is a practice where these corporations hire writers to write articles favorable to their product and present these to physicians or scientists to sign on as an author of the article - naturally there is no disclosure of the financial incentives and compensation paid to the physician.

The report, commissioned for Sen. Grassley, found the role of these companies in medical literature remained "veiled or undisclosed."

Medical ghostwriting was exposed through the Vioxx litigation and investigations and led to a study in the Journal of the American Medical Association that examined Merck's manipulation of scientific literature through ghost writers to market Vioxx. Vioxx was ultimately taken off the market because it caused dangerous heart problems for some patients.

Hospital data shows 969 incidents of preventable patient injuries

blog@www.donahoekearney.com (news Author)15822 — Mon, 28 Jun 2010 08:00:00 EST

The Las Vegas Sun investigated two years worth of hospital data and found 969 incidents of preventable injuries, patient harm and life threatening infections. As reported, the information analyzed from inpatient visits at Las Vegas hospitals showed instances of preventable harm, deadly infections and possible neglect at a rate of one injury per day.

Preventable medical mistakes or errors are medical malpractice.

Dr. John Santa, director of the Health Ratings Center for Consumer Reports said these events "aren't inevitable. They're preventable. It just involves attention to detail and a willingness to change the culture."

The investigation found hospitals were under reporting such events and that hospital lobbyists have resisted the state's effort to make the information regarding preventable or avoidable incidents and the identity of the hospitals public.

For more on this investigation into preventable medical errors in hospitals, read the article Health care can hurt you, by Marshall Allen and Alex Richards by clicking on the title above.

Trying to instill a culture of safety in hospitals

fkearney@dkllp.com (blog Author)34072 — Fri, 25 Jun 2010 08:00:00 EST

Medical malpractice. Medical errors. Medical mistakes.

The only way to reduce medical malpractice, medical errors and medical mistakes is to put patient safety first. At the heart of every healthcare decision should be a simple question "how does it affect this patient's safety?' A culture of safety in hospitals, HMOs and among healthcare providers is needed. Its the only way to reduce preventable medical mistakes - by eliminating choices by the HMO, hospital or healthcare provider that don't put patient safety first.

Click on the title above for an opinion piece on a pilot program to reduce medical malpractice.

Patient Safety and Preventing Medical Malpractice

fkearney@dkllp.com (blog Author)33734 — Fri, 18 Jun 2010 08:00:00 EST

We've written about "never events" - a term healthcare providers, insurance companies and hospital administrators use for malpractice that should, as the term implies, never happen. And its well documented that the Institute of Medicine reports nearly 100,000 Americans die each year due to preventable medical mistakes.

But I just came across a term I'd never heard of - "scribblers". That's what medical and hospital personnel call people - hospital patients and their family members - who write everything down. They take notes on the medications, treatment, conversations with the doctors and nurses. According to one presenter at a recent patient safety conference, they make the hospital staff nervous.

And more importantly, ten years after the government study, hospitals aren't doing a whole lot better, according to a 2009 hospital patient safety survey.

Read more about the patient safety conference at http://www2.timesdispatch.com/rtd/business/health_med_fit/article/MEDI28_20100527-222805/347416/

And if one of your loved ones is in the hospital, be a scribbler.

After a D.C. injury, workers comp adjuster schedules FCE

fkearney@dkllp.com (blog Author)33644 — Thu, 17 Jun 2010 08:00:00 EST

Here's a problem when you're injured in D.C. on the job or due to a work related accident. They can send you to an FCE to get clarification on your work restrictions or limitations. What's wrong with that - absolutely nothing, as long as the FCE facility is not in the tank for insurance companies (and most of them are).

Like certain IME (Insurance Medical Exam) doctors making tons of money from insurance companies to examine an injured worker for 2 minutes and dictate a 5 page report, there are certain biased facilities that administer FCEs - if the person who is hurt can't lift enough to do their job because of the injury, some of these physical therapists will try to say he is "exhibiting pain behavior" or has "low pain tolerance" or is limited due to perceived pain, etc. - all components of "symptom magnification."

Does a physical therapist have the education, background and training to make that determination? Of course not. But if the insurance company pays for it, they will say it.

Hospital System Fails Heart Patients

fkearney@dkllp.com (blog Author)32687 — Wed, 02 Jun 2010 08:00:00 EST

Apparently, the hospital had no system in place to make sure the echos were reviewed by a physician - their system allowed technicians to review the results to determine if they were "normal."

Many times an echocardiogram is ordered because shomeone is short of breath or has chest pain. And at least some of the unread echos reviewed by cardiologists since this discovery showed abnormalities.

I don't know about you but I want my echocardiogram (and my families' and friends' and clients' and co-workers' and neighbors' ) read by a physician, not a tech. And I want my hospital to have a system that requires doctors to review the results of important medical tests.

Talk about needlessly endangering its patients and preventable medical errors. Every hospital should have safety rules in place that make sure important test results are reviewed by doctors.

Read more about this at http://www.nytimes.com/2010/05/27/nyregion/27hospital.html

89 deaths due to crashes involving sudden acceleration in Toyotas

blog@www.donahoekearney.com (news Author)15174 — Wed, 26 May 2010 08:00:00 EST

Originally, 57 deaths were attributed to crashes involving sudden acceleration of Toyota vehicles, but now the National Highway Traffic Safety Administration reports sudden acceleration involving crashes may bring the death toll to 89. Since 2000, there have been 6,200 complaints involving sudden acceleration of Toyotas, and the company has recalled nearly 8 million vehicles.

"Independent" Medical Exam? Try Insurance Medical Exam

fkearney@dkllp.com (blog Author)31361 — Tue, 11 May 2010 08:00:00 EST

Insurance companies hire doctors to conduct these "independent" exams. Many times these doctors charge $500 - or more - per exam, as opposed to the $85 they charge for an exam of a patient they are treating. Many times, the whole exam lasts only 5 minutes or less (I've had clients time it) and the doctor then writes a 3 or 4 page report to the insurance company or its attorney.

There are a handful of physicians in Washington, D.C. who earn an extremely good living performing these exams and writing these reports for insurance companies. You can imagine the "opinions" these doctors generate. They may say the injured worker was never hurt, or wasn't hurt on the job or the condition he suffers from now was not caused by the injury, or the injury only caused a temporary aggravation of some underlying condition, or the injury is not as bad as the worker and his doctor think, ...You get the picture.

Sometimes the reports on different injured workers are virtually identical - only the names have changed. And in my experience, the more desperate the carrier, they more notorious the litigation or insurance doctor they will turn to for the exam.

As with anything in life, there are exceptions to the rule. Occasionally an insurance company will hire a competent, neutral physician to evaluate an injured worker, and that physician will take the time to thoroughly evaluate the injured worker and make recommendations that are helpful to his treatment and rehabilitation. But most of the time, workers compensation insurance companies are more interested in limiting or denying benefits and reducing the amount they have to pay to workers hurt on the job.

Unsafe Workplace

fkearney@dkllp.com (blog Author)30808 — Thu, 29 Apr 2010 08:00:00 EST

Since the tragic mining accident in West Virginia, which killed over 20 mine workers, the media is finally starting to report on unsafe and dangerous workplaces and many of us are realizing that working men and women are still at risk for serious injuries and death.

ABC News recently reported that OSHA is launching a "crackdown" on unsafe and dangerous workplaces. Its about time, considering that in 2007, nearly 5,500 American workers were killed on the job.

Insurance adjusters take advantage of injured workers

fkearney@dkllp.com (blog Author)27762 — Fri, 05 Mar 2010 08:00:00 EST

In the last 24 hours I've received two inquiries from people hurt at work who have had their workers comp claims denied. Insurance companies are in business for their shareholders. Its a common misconception, but a workers comp insurance company has no duty to an injured worker - and they sure don't act like it, either.

First of all, never give an adjuster a recorded statement. They will just use it to try to deny your claim. Fell off your bike and broke your arm when you were 12? And now you say you hurt your shoulder lifting a bag of concrete at work? Sounds suspicious...that's how they think. A statment will just deny or delay your case.

And to top it off, some won't even give you a copy of the statement (their questions and your answers) at least until you litigate the case against them.

And an adjuster telling someone who was hurt on the job that they couldn't amend a legal form to correct a mistake someone else (not the one hurt at work) made? Not true. Not even close.

As I say over and over (and wrote a book with the same title): Protect Your Rights. The adjuster and nurse case manager, vocational counselor - they all work for the insurance company and their duty is to the insurance company, not the injured worker.

Never Events - Preventable Medical Errors

fkearney@dkllp.com (blog Author)25761 — Wed, 27 Jan 2010 08:00:00 EST

You've heard the statistics - nearly 98,000 people die every year due to preventable medical errors.

But you've probably never heard the term "never events" - I know I had not. Hospitals, HMOs and healthcare corporations often have morbidity and mortality conferences to review whether, in their view, a doctor or nurse committed medical malpractice or the medical care fell below the standard of care.

But the term "never events" refers to medical mistakes that are preventable and should never happen. Medication errors, communication errors, delays in examining a patient, not recognizing signs and symptoms of a life threatening process - all can be never events.

And in the healthcare debate, some healthcare corporations, HMOs and hospitals think they shouldn't be accountable to patients injured or killed due to "never events." What if they focused their attention and resources on preventing never events? Would patients be safer? Would health care costs decrease? Of course they would.

Medical Malpractice

fkearney@dkllp.com (blog Author)24175 — Tue, 29 Dec 2009 08:00:00 EST

The Senate passed health care reform, but some politicians (and of course insurance companies) continue to blame patients who have the guts to sue doctors and hospitals for increased health care costs.

What are the facts?

According to the Institute of Medicine, 98,000 people die every year due to preventable medical mistakes. And those are deaths - not amputations, cerebral palsy, brain damage or a host of other horrific injuries.

Its the equivalent of two 737s crashing every day. If that happened, would we put up with it? Would we blame the passengers?

How can we reduce medical costs? By reducing medical malpractice (which is by definition a preventable medical error) and putting patients first.

Radiology survey shows doctors reluctant to disclose medical errors

blog@www.donahoekearney.com (news Author)11244 — Wed, 11 Nov 2009 08:00:00 EST

A recent survey of 364 radiologists, conducted by a physician, indicates doctors may be reluctant to disclose mammography errors to patients.

According to the author, the radiologists were given a hypothetical case and were asked how likely they would be to disclose the hypothetical mammography error. Apparently, 9% said they would "definitely not" disclose ther error, 51% would disclose only if "asked by the patient", 26% said they "probably" would disclose the error while 14% said they would "definitely" disclose the error.

The authors concluded that "effective disclosure (of errors) remains the exception, not the rule."

16 work related deaths per day

fkearney@dkllp.com (blog Author)21573 — Wed, 11 Nov 2009 08:00:00 EST

Simply reporting for work shouldn't put your safety at risk. But at some job sites, that's exactly what happens.

While OSHA and various state laws and occupational safety departments at the state level require safe workplaces, check out this alarming video that tells the tragedy of preventable workplace deaths at http:/16deathsperday.com

Workers compensation death and injury benefits may help an injured worker or the family of a worker killed on the job, but the real issue is preventing workplace fatalaties and injuries in the first place.

Protect yourself against uninsured driver's in this recession.

fkearney@dkllp.com (blog Author)21143 — Wed, 04 Nov 2009 08:00:00 EST

I've said it before - and in better economic times - but it's worth repeating. Evaluate your uninsured and underinsured motorist coverage on your car insurance policy and make sure it adequately protects you and your family.

In my practice, we are getting more calls from people hurt in accidents caused by drivers without insurance. These days, it seems more and more drivers are dropping coverage or can't afford it. If you're seriously hurt in an accident but there is little or no insurance coverage, you may be stuck with debilitating injuries, mounting medical bills, and no income. Is it fair? No. But take steps to protect yourself from these drivers by getting the coverage you need.

D.C. Workers Compensation book for injured workers to be published November 2009

blog@www.donahoekearney.com (news Author)11090 — Thu, 29 Oct 2009 08:00:00 EST

To combat the misinformation given to injured workers in D.C. - from workers compensation insurance companies, employers, foremen, co-workers, you name it - Frank R. Kearney has written a book for injured workers and their families. The book, Protect Your Rights: The Injured Workers Guide to D.C. Workers Compensation, explains the ins and outs of D.C. workers compensation laws, rights and benefits available to workers hurt on the job.

Many Not Receiving Compensation for Medical Malpractice

blog@www.donahoekearney.com (news Author)11070 — Wed, 28 Oct 2009 08:00:00 EST

"Our medical-malpractice lawsuit system is too capricious and too clogged with costs and delays to do justice for malpractice victims or for wrongly sued doctors. It also does little to deter malpractice.

Worse, unless fundamentally reformed, malpractice law could greatly weaken efforts to control health care costs. The main reason, in the view of many experts, is that doctors' fear of unwarranted malpractice liability helps spur many billions of dollars in unnecessary "defensive medicine" costs.

Medical malpractice does happen. A 1999 study by the Institute of Medicine found that as many as 98,000 people are killed every year by preventable medical errors. This cries out for effective legal remedies. But malpractice law as we know it is not effective. It is, in too many ways, bad for patients, bad for doctors, and bad for the country.

• Bad for patients. Only 1.5 to 3 percent of all victims of medical negligence -- and about 17 percent of severely injured victims -- file claims, according to data, including a study cited by the Congressional Budget Office last year.

Many of these patients are apparently unaware that medical errors caused their injuries. But many others are probably deterred by the difficulty of finding lawyers -- who typically take only the most lucrative cases -- and the prospect of years of legal brawling with little chance of timely compensation and no assurance of ever being compensated.

A careful 2006 study by the Harvard School of Public Health found that 73 percent of those who brought valid claims ended up winning compensation. That's not so bad. But it takes five years, on average, leaving injured plaintiffs without compensation when they need it most. Moreover, an exorbitant 54 percent of the money spent in the malpractice system goes to legal and administrative costs."

October 3, 2009
National Journal Magazine

Families in Texas Hurt due to Lack of Legal Reform

blog@www.donahoekearney.com (news Author)11071 — Wed, 28 Oct 2009 08:00:00 EST

"For 20-plus years, the insurance industry, aided by tobacco interests, polluters, developers and the medical industry, have been engaged in a pitched battle to take away the legal rights of families. Our state has been the front line in a battle for our Constitution. Sadly, the Constitution is losing, and Texas families have been the collateral damage.

All of this has been done in the guise of “reform,” but real legal reform should be designed to protect everyday Texans, making Texas a safer and healthier place. What we've been handed in Texas certainly doesn't fall into that category. The only real beneficiaries of the decades-long fight in Texas have been a handful of powerful special interests that have boosted their bottom lines on the backs and broken hearts of countless Texas families.

These interests like to proclaim that this is all about reining in lawyers. That is just rhetorical spin to divert our attention from the real targets — Texas patients, homeowners, workers, seniors and families.

Lately we have heard a lot from these interests about Texas-style, anti-patient laws as a solution to our nation's health care crisis. When insurance lobbyists rammed through legal changes that were designed to severely limit the legal rights of Texas patients in 2003, we heard high-falutin' rhetoric promising dramatic improvements in the cost, access, and quality of health care. If only it were as simple as that.

What has actually happened? Health care costs have risen dramatically in Texas; we rank near the bottom in per-capita physicians; rural and underserved areas continue to struggle to attract new physicians; and Texas has the nation's highest rate of uninsured."

By: Alex Winslow
Houston Chronicle
October 16, 2009

Malpractice Reform is Necessary for Patient's Rights

blog@www.donahoekearney.com (news Author)11072 — Wed, 28 Oct 2009 08:00:00 EST

"Medical negligence isn't a topic I gave much thought to until my 6-year-old son went to the hospital sick for the first time in his life and died of oxygen deprivation. A happy little boy, with no history of breathing problems, no allergies ... never sick. Christopher was my only son. His daddy, my husband, had died of cancer a few years earlier.

In experiencing the death of my husband and son, I have seen the best medical professionals and the worst. I have seen the most caring, and the least.

I buried my husband knowing that medical professionals did everything they could. I buried my son knowing that medical professionals failed him at the most basic level.

Acting without due care

In my attempt to uncover the truth about what happened to Christopher, I took legal action.

I was represented by wonderful and caring attorneys. Throughout 18 months of litigation and over 40 depositions, I saw medical professionals who - resisting pressure from their colleagues - had the courage to testify that the care provided to Christopher fell far short of the minimum standard of care. I also saw medical professionals lie under oath, and doctors and lawyers who seemed to have no qualms about defending the indefensible.

Through my medical and legal experiences, I learned the meaning of negligence ... a failure to act with due care. I am now concerned with political negligence - legislators failing to act with due care.

How big is 'defensive medicine'?

Lobbyists for the medical and insurance industries tout "malpractice reform" as an essential part of a health care bill. When they talk about "malpractice reform," they do not mean taking steps to reduce medical malpractice. Instead the reforms they seek would prevent injured patients and their families from discovering the truth and seeking redress in the courts.

Our congressional representatives need to look behind the "malpractice reform" propaganda, and consider the facts.

We are told that doctors will stop ordering unnecessary tests and procedures if they are freed of the threat of malpractice lawsuits. Both the Government Accounting Office and the Congressional Budget Office have issued reports questioning the pervasiveness of "defensive medicine" and concluding that meddling with the legal system will have a minimal effect on health care costs. When doctors and hospitals have an economic incentive to order additional tests and procedures, we should be skeptical of their claims that they were motivated by the fear of being sued.

One of the lessons of Christopher's unnecessary death - and my necessary lawsuit - is not that health care providers need to engage in cost-inflating "defensive medicine." Instead, it is that doctors and nurses must pay attention, communicate with their colleagues and adhere to well-recognized standards of practice."

By: Laurie Sanders
October 1st, 2009
The Charlotte Observer

Politicians Working to Eliminate the Legal Age Bias For Workers

blog@www.donahoekearney.com (news Author)10759 — Thu, 08 Oct 2009 08:00:00 EST

Democratic lawmakers on Tuesday said they would introduce legislation that would effectively strike down a Supreme Court decision that made it more difficult for workers to prove age bias lawsuits. In June, the Supreme Court held that plaintiffs in such cases must prove that age was a deciding factor in adverse employment decisions. The previous standard held plaintiffs to a less strict burden of proof.

"Three Democratic Congressional committee chairmen said Tuesday that they would move to overturn a four-month-old Supreme Court ruling that made it significantly harder for workers to win many age discrimination cases.
The three chairmen criticized the court’s decision in a case involving a 54-year-old man who was demoted, saying the ruling flouted Congress’s intent and created unfair obstacles to the victims of age discrimination."

New York Times 10/6/09

Texas Case Challenges Time Limits on Malpractice Lawsuits

blog@www.donahoekearney.com (news Author)10590 — Tue, 29 Sep 2009 08:00:00 EST

"Surgical sponges left inside two Texas women - but undiscovered for years - will test state laws that place fairly strict time limits on suing doctors and hospitals for malpractice." The sponges were discovered after nine and eleven years, respectively, "long after the two-year statute of limitations had expired." Both cases "are before the Texas Supreme Court, which will decide whether their legal challenges should continue. The women argue that enforcing the lawsuit deadlines would deny them access to the courts - a right guaranteed by the Texas Constitution - because they had no way of knowing that misplaced sponges were causing their health problems until a surgeon found and removed the objects. But doctors and hospitals say time limits for lawsuits - intended by the Legislature to lower malpractice insurance rates and attract more doctors to Texas - provide a public benefit that outweighs the rights of individual plaintiffs."

Austin American Statesman. 9/29/09

Protect Your Rights: The Injured Worker's Guide to D.C. Workers' Compensation

fkearney@dkllp.com (blog Author)19064 — Mon, 28 Sep 2009 08:00:00 EST

This is the title of my new book about how to protect your rights when you get hurt at work. The book shows you how to protect your rights and those of your family when you are hurt on the job. Its based on my years of experience representing injured workers.

I wrote it for working people because there is so much misinformation about D.C. workers compensation and work injuries. Some of it comes from the injured worker's co-workers, friends and family - well intentioned but still wrong. And some of the misinformation is intentional - it comes from insurance companies who want to force you to see one of their doctors or go to one of their clinics, or want you to file a claim in a different state, or don't tell you you're entitled to benefits for a permanent injury.

Protect Your Rights: The Injured Worker's Guide to D.C. Workers' Compensation will be published this fall.

The Politics of the Medical Malpractice Debate

blog@www.donahoekearney.com (news Author)10501 — Fri, 25 Sep 2009 08:00:00 EST

New York Times, 9/22/09

The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn’t mean the malpractice system is working.

The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.

At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.

Metro Train Accident - No Cap on Damages

blog@www.donahoekearney.com (news Author)9202 — Sun, 28 Jun 2009 08:00:00 EST

The Metro train accident victims and their families should receive full and fair compensation for their injuries, said attorney Frank R. Kearney in a recent interview with the Washington Examiner. There is no artificial cap on damages in the District of Columbia. While every case will be different because the injuries are different for everyone. Those who were injured should be compensated for their pain, suffering, medical expenses, permanent injuries and lost income - both now and in the future.

The families of those killed in the Metro train accident have the right to damages for wrongful death and survival action. These damages would include the cost of medical care and lost future income, plus loss of care, guidance, services and attention for the minor children of the person killed in the Metro train accident.

As Mr. Kearney stated when interviewed by the Examiner, the train accident will prove costly for Metro. Metro carries liability insurance for significant injury and death cases. Due to a recent ruling by a court in Maryland, Metro may have been able to cap its liability had the accident occurred in Maryland instead of at the Fort Totten station in Washington, D.C.

Metro Train Accident

fkearney@dkllp.com (blog Author)14425 — Sun, 28 Jun 2009 08:00:00 EST

Because we have represented many people against Metro in D.C., a local reporter recently interviewed me about the damages available to the victims and families of those hurt or killed in the Metro train accident last week. As usual, I gave her much more information on D.C. injury and death cases than she could use in the newspaper article.

Thankfully, there is no artificial cap on damages in D.C. For the families of those killed, they should receive compensation for their loved one's medical and funeral expenses and lost future income. If they left a minor child, additional damages are available for the loss of care, guidance and attention to the child.

The damages of those passengers injured will depend - as in any case - on the extent of their injuries. They will be entitled to fair but full damages for their medical expenses, lost income, pain, permanent injury, disfigurement. And injured victims should also receive damages for the future effects of the injuries.

For the families of those killed or those severely injured in the Metro train accident, no settlement will replace what they lost. It never does.

Health Care Reform should not include arbitrary caps on damages for victims of medical malpractice

blog@www.donahoekearney.com (news Author)9030 — Wed, 17 Jun 2009 08:00:00 EST

President Obama's recent speech to the American Medical Association did not endorse capping damages for medical malpractice. As much as health care corporations and insurance companies favor limiting recovery for Americans injured or killed due to medical malpractice, there has been no evidence that these caps reduce premiums.

In fact, caps hurt the most severely injured (or the families of those killed) due to a doctor or hospital's negligence. By arbitrarily limiting recovery this way, some patients won't be able to recover for future medical care needs or replace their lost income, or make modifications to their home, or hire a home health aid or pay for their medications or buy a wheelchair accessible van. Why should someone devastated by medical malpractice through no fault of their own be forced to choose among their needs?

The most severely injured - children with cerebral palsy due to hypoxic injuries at birth, amputees because of a misdiagnosed cancer, families of a patient who died of a preventable pulmonary embolism - should get fair but full damages.

And if you negligently run over a doctor leaving the hospital, is there a cap on his damages against you? Is that fair?

Workers Comp Death Benefits

fkearney@dkllp.com (blog Author)13856 — Wed, 17 Jun 2009 08:00:00 EST

A widow who was denied workers compensation death benefits after her late husband died following his on the job injury is trying to change Virginia law - for the better, in my view.

Claire Pierce's husband, Arthur, a trucker, was found beside his truck at work, unconscious and bleeding. An accident reconstruction determined he fell 12 feet onto concrete from the rig in his employer's lot, while he was on the clock. He had sustained brain damage. Unfortunately, he never regained consciousness and died 16 months later.

Sounds like his widow would get workers compensation benefits, right? In D.C. and Maryland, the widow would receive workers compensation death benefits, which replace a portion of the deceased employee's earnings, and pay for medical and funeral expenses. But not in Virginia.

Unfortunately, Virginia is one of a handful of states that have a presumption that death is covered if the employee is found dead on the job site (for example if he dies instantaneously from a fall or accident). But since the injured worker wasn't able to testify and his fall was unwitnessed, the commission ruled there wasn't enough evidence to award benefits.

Mrs. Pierce is trying to get legislation passed that would change this law - a bill did not make it out of committee apparently. I'm contacting my state reps telling them to support a change that is good for Virginia workers and their families.

What is the insurance industry's response? In typical fashion, they don't see a need to change the law because it would lead to "fraud" - as if an injured worker could fake brain damage and a coma for 16 months?

Work Injuries: Heat Stress and Workers Compensation

fkearney@dkllp.com (blog Author)13711 — Mon, 15 Jun 2009 08:00:00 EST

We all know Washington summers are hot - and can be dangerously so to workers. Workers who earn their living outdoors, on construction sites, and those who work around machinery and in confined spaces, such as mechanics, steamfitters and plumbers can be at risk for heat stress. Heart disease, high blood pressure and some medications may increase the risk of heat stress.

What is heat stress? Its heat stroke, heat exhaustion, heat syncope, heat cramps and heat rash.

The most serious classification is heat stroke, which can cause death or permanent injury and disability if not treated. According to the Centers for Disease Control symptoms include hot, dry skin without sweating, hallucinations, chills, headache, high body temperature confusion or dizziness and slurred speech.

If a co-worker shows these signs, the CDC recommends calling 911 and moving the injured worker to a cool, shaded area, and cooling the worker by showering or spraying them with water, soaking their clothes, or fanning them.

The CDC recommends workers take precautions against heat stress, such as wearing light loose fitting clothing, drink ing water frequently and scheduling heavy work for the coolest part of the day.

A worker injured due to heat stroke or heat stress on the job should notify his supervisor as soon as possible. Injured workers are entitled to workers compensation benefits in D.C. as long as the heat stress or heat stroke was related to their job.

For more information on heat stress, go to www.cdc.gov/niosh/topics/heatstress/

Uninsured Motorist Coverage

fkearney@dkllp.com (blog Author)8773 — Thu, 05 Feb 2009 08:00:00 EST

This is a tale of two clients. Both were seriously injured in car accidents in Maryland. Both were hospitalized, required multiple surgeries for their injuries and have painful, expensive rehab to look forward to.

Neither accident was their fault. Both should recover fair compensation for their injuries and damages - they can't work and have escalating medical expenses.

They were both hit by drivers with minimum insurance limits. The guilty drivers' insurance carriers will offer the full extent of their liability insurance policies but it won't even cover the injured drivers' medical bills.

One has uninsured and underinsured motorist coverage. One doesn't. In theory you can sue the driver who doesn't have much insurance and obtain a large judgment. But how can you collect on that judgment?

The driver who carries the UM coverage on his own policy will be able to use it to pay his damages over an above the other driver's policy limit.

I can't stress enough - and have written about it before - get uninsured and underinsured motorist coverage to protect you and your family.

Worker's knee surgery authorized

fkearney@dkllp.com (blog Author)8398 — Sat, 24 Jan 2009 08:00:00 EST

Just before Christmas, based on a litigation doctor's bought and paid for opinion, a mechanic's workers comp benefits were stopped because the hired gun doctor didn't think he needed arthroscopic surgery. This surgery - designed to diagnose as well as fix a problem - is used to diagnose and surgically repair meniscal tears in the knee and rotator cuff tears in the shoulder.

Glad to report, the surgery was authorized and benefits re-started before the hearing. This means the mechanic will get his work related knee injury fixed sooner and hopefully he'll be back to work sooner as well, with less recovery time and restrictions.

Dollar Tree denies death benefits after employee is killed on the job.

fkearney@dkllp.com (blog Author)7068 — Sat, 06 Dec 2008 08:00:00 EST

The San Francisco Chronicle reported the Dollar Tree and its workers compensation insurance company were denying workers compensation benefits to an 11 year old child of one of their employees killed on the job. The employee, an African American clerk who was stocking shelves, was attacked - apparently because of her race - and died of her injuries. The Dollar Tree says that because the attack was racially motivated (the employee did not know the attacker) it did not arise out of her employment with the store.

Isn't a store clerk supposed to help the public? Isn't she subjected to the risks associated with dealing with the public? Didn't her horrible death arise out of that employment? Of course.

A chilling example of what some companies do to deny legitimate workers compensation claims.

My kids love to shop at this store to buy cheap Christmas gifts for each other. Not this year.

Read the entire article at www.sfgate.com

Workers compensation insurance company cuts off a worker's benefits because insurance company doctor says he doesn't need surgery.

fkearney@dkllp.com (blog Author)7035 — Fri, 05 Dec 2008 08:00:00 EST

Insurance companies do it all the time. An injured worker's benefits were terminated because the insurance company doctor doesn't think he needs an arthroscopic surgery for his documented work related knee injury. The insurance company doctor "examined" the injured worker for about 5 minutes a couple of months ago (and was paid about $500 for that exam I suspect). That doctor later reviewed an MRI report - not the actual films - didn't re-examine the injured worker or speak with his treating physician, but just wrote another report saying the surgery wasn't necessary.

What is arthroscopic surgery? As the insurance doctor knows full well, its a procedure that is diagnostic as well as therapuetic. In other words, it will help the treating orthopaedic surgeon determine the extent and cause of the worker's knee problems - and fix those problems if necessary.

What do you think the insurance doc would say if it was his patient?

What can this worker, who was hurt on the job do now? He has to request a hearing and have a D.C. administrative law judge decide whether he needs the surgery and whether his workers compensation benefits will be reinstated.

Keith Donahoe selected by his peers for inclusion in Best Lawyers in America

blog@www.donahoekearney.com (news Author)6526 — Tue, 02 Dec 2008 08:00:00 EST

Keith Donahoe, a top medical malpractice attorney in Washington, D.C. and founding partner of Donahoe Kearney, LLP, a law firm dedicated to representing victims of medical malpractice, especially children, in cases involving birth trauma, cerebral palsy, obstetrical negligence, has again been selected as one of the areas "Best Lawyers." Chosen by experienced medical malpractice lawyers handling a range of medical negligence and wrongful death cases - such as pulmonary embolism, failure to diagnose cancer, cerebral palsy, shoulder dystocia and other types of birth injury cases, Mr. Donahoe has received this honor for two years in a row.

Infant Deaths lead to Child Safety Recall

blog@www.donahoekearney.com (news Author)5585 — Fri, 29 Aug 2008 08:00:00 EST

After a 4 month old and 5 month old became trapped in their bassinetts' metal bars and died, the Consumer Product Safety Commission recalled the models. Simplicity, Inc. manufactures the bassinetts, known as 3 in 1 and 4 in 1 convertibles or "close sleeper/bedside sleeper."

Newsday reports the parent company is not cooperating with the government's recall. Nearly 90,000 bassinetts are affected and they are sold at many retailers nationwide.

More information can be found on the CPSC website, www.cpsc.org

For more on this story, click on the link below.

Hospital Death Rates Allow Patients to Compare Medical Treatment

blog@www.donahoekearney.com (news Author)5537 — Tue, 26 Aug 2008 08:00:00 EST

USA Today reported that the U.S. Centers for Medicaid and Medicare Services has released data comparing the death rates, also called mortality rates, of hospitals. The study analyzed deaths from heart attack, heart failure and pneumonia within a 30 day period of hospitalization and studied only these common, life threatening conditions. The findings, published at hosptialcare.hhs.gov are significant because many believe a hospital's death rate based just on these common medical conditions, is a better indication of hospital care quality than previous death rate studies that included patients with other diseases and medical treatment for other conditions.

Unfortunately, like we see in many medical malpractice cases, rather than take responsibility for their mistakes, hospital corporations and administrators blame their patients. The article indicated one chief of medical education (of a hospital with above average death rates) stated patients in his community often did not seek medical attention soon enough or follow doctors orders. A doctor at a top ranked hospital put it best, saying "we have those patients here too."

Hopefully hospitals and health care providers will use this study as a tool to improve health care, including patient education and communication, not just for heart attacks and health disease. And now patients can compare a hospital's track record online.

Doctors without medical malpractice insurance deny justice for patient victims

blog@www.donahoekearney.com (news Author)5344 — Mon, 28 Jul 2008 08:00:00 EST

Many states require insurance - especially auto insurance - to protect victims of negligent drivers who cause accidents. But some states don't require physicians and healthcare providers to have medical malpractice insurance to protect their patients. Think of it - a doctor's negligence injures or kills a patient. The patient needs medical care and treatment, can't work, and has a permanent injury. Or worse, his family who relied on him for love, support and income, is left with nothing - even in cases of blatant medical errors like prescription errors, surgery on the wrong body part, or failing to tell a patient about life threatening test results like cancer or deep vein thrombosis (DVT). This article from the South Florida Sun Sentinel, describes the situation.

Patient dies after radiologist hangs up on primary care physician

blog@www.donahoekearney.com (news Author)5150 — Thu, 26 Jun 2008 08:00:00 EST

Imagine a doctor diagnosis a life threatening blood clot, deep vein thrombosis, or DVT for short. He calls the primary care physician who referred you, but can't get the doctor on the phone. So he hangs up - without leaving a message, without telling a doctor or nurse (or anyone) that he diagnosed a life threatening condition.

That happened to a single mom living in Fairfax, Va. The radiologist never told her she had a DVT and never told her internist. She died a few days later of a pulmonary embolism, a blood clot that breaks off and travels to the lung, and a known complication of deep vein thrombosis. The standard treatment includes blood thinners and is 90% effective.

Frank R. Kearney represents the woman's estate, with co-counsel Ben Glass. The primary care group settled before trial but the radiologist did not. He won at trial because he blamed the referring physician. The Supreme Court of Virginia ordered a new trial.

Construction site shut down after two construction workers are killed on the job

blog@www.donahoekearney.com (news Author)4953 — Tue, 03 Jun 2008 08:00:00 EST

Two New York city construction workers were killed on the job recently when a crane collapsed on their construction site. Because of recent crane collapses, city officials are suspending construction work while cranes and construction sites are inspected and safety concerns are addressed.

Tragically, many on the job injuries, construction accidents and work related deaths are preventable.

Air pollution may increase risk for developing DVT - also known as blood clots

blog@www.donahoekearney.com (news Author)4898 — Tue, 27 May 2008 08:00:00 EST

Researchers in Italy recently studied the effect of air pollution on the risk of developing blood clots (DVT). Deep vein thrombosis can lead to pulmonary embolism, a potentially fatal disease process, occurring when a blood clot breaks off and travels to the lung. An embolism can block air flow, either partially or completely. While other risk factors for developing blood clots are well known - immobility, recent trauma and surgery, cancer, and oral contraceptives are all risk factors for deep vein thrombosis - according to one study, poor air quality seems to increase the risk of developing blood clots as well. For an article on the risk of DVT being increased by air pollution, click the link below.

Ad campaign to rank hospitals

blog@www.donahoekearney.com (news Author)4870 — Thu, 22 May 2008 08:00:00 EST

The US Department of Health and Human Services is promoting its hospital ranking system, found at www.hospitalcompare.hhs.gov through an ad campaign. The website was created to encourage reporting and analysis of medical care in our hospitals. The hospitals submitted healh care data based upon patients' medical records. Apparently, only two criteria are used - patient satisfaction with medical treatment and compliance with recommended standards of care for surgery, heart attacks and pnuemonia. It is important to recognize that these are only two limited ways to rank hospital medical care. Hopefully, additional criteria, such as hospital infection rates, adverse surgical outcomes, and incidents of post surgical complications will be added to the site.

The website contains hospitals in DC, Virginia and Maryland, lists whether they provide emergency medical treatment and acute care, and their compliance with standards of care for particular conditions, also called process of care in the survey. The DC, Virginia and Maryland Hospitals also indicate hospital care outcomes and measures, and patient survey results showing patient satisfaction with their medical treatment. This may be one tool for patients faced with a surgery or other medical treatment in a hospital. The more information available to a patient regarding doctors, physicians, hospitals, diseases, diagnosis and medical treatment options, the better.

The information is provided for adult medical treatment at hospitals, it does not include pediatric medical treatment or pediatric medical care or medical care for any children's injuries or diseases.

Actor urges Congress not to take away consumers rights to sue drug companies

blog@www.donahoekearney.com (news Author)4841 — Thu, 15 May 2008 08:00:00 EST

Prominent actor Dennis Quaid testified about the medical errors that his family experienced when his newborn twins were given the wrong dosage of blood thinner because of a medication error.

Quaid urged Congress not to take away consumers rights to hold drug companies responsible. The Bush Administration FDA says that federal regulation of drugs preempts lawsuits to hold drug companies accountable for their actions.

Source: Pete Yost, Newsday, 5/14/08

Medical Prescription Drug Ads - Doctors v. Drug Companies?

blog@www.donahoekearney.com (news Author)4821 — Wed, 14 May 2008 08:00:00 EST

Those prescription drug ads are everywhere. Do they affect the doctor-patient relationship? Do doctors prescribe more because patients respond to the drug makers marketing?

Some medical professionals think the ads can raise awareness and encourage patients to seek medical treatment or cancer screening for example. Other health care providers think the drug companies are just marketing - and not educating patients about their health and medical conditions.

An interesting article in the LA Times discusses some of the tension between physicians and drug companies over these ads.

Civil justice for all

blog@www.donahoekearney.com (news Author)4806 — Tue, 13 May 2008 08:00:00 EST

Former Supreme Court nominee, appellate judge, law professor and conservative author and commentator Robert H. Bork settled his personal injury lawsuit against The Yale Club. Judge Bork alleged he slipped and fell and was injured at the club (where he had been invited to speak) and that the fall occurred because there was no handrail or stairway leading to the platform.

Bork had been an advocate of limiting damages and recoveries in personal injury cases. Perhaps this experience changed his views?

Physician sues hospital and doctors for medical malpractice.

blog@www.donahoekearney.com (news Author)4807 — Tue, 13 May 2008 08:00:00 EST

As reported the The Charleston Daily Mail, a gynecologist filed a medical malpractice case against a hospital and two other doctors following abdominal surgery. The plaintiff physician alleged he has lost income, suffered pain, permanent injuries and disfigurement following surgery and a hospital stay that left him with an infection leading to septic shock and requiring mechanical ventilation and additional surgeries.

Medical Malpractice Birth Injury

blog@www.donahoekearney.com (news Author)4784 — Fri, 09 May 2008 08:00:00 EST

Virginia's cap on medical malpractice lawsuits hurts the most significantly injured victims. As The Richmond Times reported, a family whose son suffered neurological injuries, cerebral palsy and brain damage recently settled their birth trauma malpractice case after a 7 year fight. At the time of the child's birth, the medical malpractice cap was $1.6 million. It will increase to $2 million in July 2008. Is that enough to cover lifetime medical care for a severely brain damaged child who will never live independently? How about to replace a family's income when a young mom or dad's death is caused by medical negligence?

Judge strikes down cap on malpractice suit awards

blog@www.donahoekearney.com (news Author)4789 — Fri, 09 May 2008 08:00:00 EST

Reasoning that a medical malpractice cap on non economic damages, or pain and suffering, applying to patients who had been victims of medical negligence gave special protections to the health care industry, a Georgia judge ruled that state's legislative cap on pain and suffering was unconstitutional.

The judge reasoned that the law also limited the rights of poor and middle class patients who had been victims of medical malpractice as opposed to wealthy patients (who could prove large economic losses - such as lost future income - because of their higher incomes).

There is no cap on recovery in D.C. medical malpractice cases. Maryland has a cap on non-economic damages recoverable in medical malpractice lawsuits. Virginia medical malpractice victims face a cap on all damages - economic and non-economic. The amount of the Virginia medical malpractice cap will increase to $2 million in July 2008.

Patient Advocacy Gaining Popularity Nationwide

blog@www.donahoekearney.com (news Author)4701 — Tue, 29 Apr 2008 08:00:00 EST

The Arizona Daily Star reports that patient advocacy - providing a knowledgeable, assertive advocate for a hospital or emergency room patient - is a growing business. According to a health care ratings group HealthGrades, more than 188,000 patients died between 2004 and 2006 because hospital staff did not notice or respond to patients' fatal but preventable complications.

A patient advocate, whether a friend, relative or professional, can monitor and review medication orders and dosages, verify medical history and facilitate communication between hospital staff and a patient's primary care physician or other specialists outside of the hospital.

There are a number of paid patient advocates with a wide range of charges and services. Because of the risk of fraud, especially preying on elderly patients, be sure to verify the credentials of any prospective patient advocate.

Patients often struggle for access to medical records

blog@www.donahoekearney.com (news Author)4704 — Tue, 29 Apr 2008 08:00:00 EST

Under federal law, patients are entitled to their medical records. Victims of medical malpractice and their families shouldn't be stonewalled by hospitals and health care providers who know medical records are critical to proving a medical malpractice or wrongful death case.

For the full article, go to http://www.usatoday.com/news/health/2008-04-29-medical-records_N.htm

Insurance companies putting profits over people

blog@www.donahoekearney.com (news Author)3407 — Wed, 19 Sep 2007 08:00:00 EST

For a fascinating report on the plight of Katrina victims, - people who were not only victims of the hurricane, but victims of their own insurance companies, go to www.peopleoverprofits.org. The study was published by People over Profits.

Keith Donahoe again selected by his peers to be included in "The Best Lawyers in America" in the field of Medical Malpractice

blog@www.donahoekearney.com (news Author)3185 — Wed, 08 Aug 2007 08:00:00 EST

National Board of Trial Advocacy recognizes Frank Kearney as a Board Certified Civil Trial Advocate

blog@www.donahoekearney.com (news Author)3186 — Wed, 08 Aug 2007 08:00:00 EST