Medical Errors Can Lead to Medical Malpractice

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A few months ago the AZ Daily Star reported that Banner University Medical Center’s conversion to a new computer system came with a cost to patient care and had resulted in numerous instances of medical errors. The Star cited an investigation by the Arizona Department of Health Services, the state licensing arm that licenses medical facilities and other medical providers, that found at least two substantiated allegations that included the delivery of medications and care for critically ill patients. Although the hospital denied the errors resulted in negative outcomes for patients, the unfortunate reality is that vulnerable patients are the ones at highest risk of medical malpractice in hospital settings.

Patients who have experienced an adverse outcome following a medical procedure or surgery often wonder if their experience rises to the level of medical malpractice, and if they have legal recourse against the doctor, nurse, or medical facility where the incident took place.

What is Medical Malpractice
According the Board of American Liability Attorneys, medical malpractice occurs when a hospital, doctor, or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, aftercare, or health management.

Medicare “Never Events”
Medicare also weighs in on medical malpractice by providing a list a “Never Events,” which are conditions that may happen in a hospital that are so severe that Medicare will not pay for the additional cost of treating for the event. The “Never Events” list includes:
 Pressure ulcer stages III and IV;
 Falls and trauma;
 Surgical site infection after bariatric surgery for obesity, certain orthopedic procedures, and bypass surgery (mediastinitis);
 Vascular-catheter associated infection;
 Administration of incompatible blood;
 Air embolism;
 Foreign object unintentionally retained after surgery.

Do I have a Medical Malpractice Claim?
When a medical malpractice attorney evaluates a medical malpractice claim, the initial screening will try to determine whether the medical harm was due to negligence, and assess the impact of the medical error to the patient. If there was negligence and the patient was inconvenienced for a period of time but was able to make a full recovery, it’s unlikely a medical malpractice attorney would accept such a case because the damages would not justify the cost of the claim.

However, if the attorney learns during the screening process that there was negligence on the part of the physician or other medical provider and the harm to the patient was catastrophic or resulted in death, the attorney may accept the case and begin the investigation process.

Every case involving medical error is different, as is the level of harm. The attorneys at Hollingsworth Kelly encourage patients or patient advocates to contact our office for a free evaluation if they believe their unsatisfactory experience with a medical provider rises to the level of medical malpractice.

Ignoring Auto Recalls May Put You at Risk for Car Accidents

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When a class of vehicles presents a safety hazard that increases the risk for car accidents and serious injury, the manufacturer may recall the vehicles to correct the unsafe issues. Automakers are required to fix defects by repairing or replacing the defective part, offering a refund, or very rarely by repurchasing the vehicle.

Since the beginning of the year, several automakers have issued recalls to fix or replace defects that could have serious safety risks for drivers and their passengers. The National Highway Traffic Safety Administration (NHTSA) provides monthly reports of vehicles that have been recalled, along with the safety issues that need to be addressed. It’s important to know if your vehicle has been recalled—doing so can help you avoid an accident or serious injury.

How to Check if Your Car is Part of an Active Safety Recall

If you registered your vehicle when you bought it, the manufacturer will mail a notice to alert you it has been recalled. It’s important to keep your vehicle registration updated so you can receive these notifications.

You can sign up with NHTSA to receive e-mail notifications for a vehicle’s specific make and model. You can also check a car’s recall record by entering its VIN number at safercar.gov.

Follow the safety guidance and instructions from the manufacturer if you find that your vehicle has been recalled. In some cases, the defect may pose such a serious safety risk that you will be advised not to drive the vehicle. Do not drive warnings were issued earlier this year when Ford recalled certain 2006 Ford Ranger trucks and Mazda recalled 2006 B-series trucks due to the danger presented by Takata airbags. Although other automakers have also recalled vehicles to fix this airbag issue, Ford and Mazda requested that owners not drive these vehicles until they are repaired, fearing catastrophic injuries.

In another case, Fiat Chrysler recalled more than 4.8 million vehicles in the U.S. to fix an issue that could leave drivers unable to turn off cruise control. Affected vehicles were from the 2014 to 2019 model years and included Jeep (Cherokee, Grand Cherokee, Wrangler), Dodge (Charger, Challenger, Journey, Durango), Chrysler (Chrysler 200, Chrysler 300, Chrysler Pacifica), and Ram (Ram pickups—1500, 2500 and 3500; Ram cab chassis trucks—500/4500/5500). Fiat Chrysler strongly advised drivers to avoid using cruise control until the repairs are made.

In addition to these recalls, this year Hyundai, Honda, Toyota, Kia, Nissan, Mitsubishi, Volkswagen, and General Motors (among others), have also issued recalls to fix a variety of safety issues that could increase the risk of crash or injury. Examples of these recalls include a possible electrical short in the anti-lock brake module due to entry of water, which could lead to an engine fire with risk of injury (Hyundai); possible crack in the drive belt automatic tensioner flange, which could lead to engine stall and crash (Mitsubishi); inaccurate tire information label that could result in overloading and increasing crash risk (Toyota); improper tempering of window glass, which, if broken, could cause the glass to break into large pieces and cause injury (General Motors).

It will cost you nothing to get the work done on your vehicle if it has been recalled. You should call your local dealership as soon as possible if you find that your vehicle has been recalled. Neglecting to do so may put you, your passengers, or other drivers at risk of serious, catastrophic personal injury in the event of a car accident.

Fighting Back Against Elder Abuse

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Elder abuse is something most families may not consider when faced with having to place a loved one in a nursing home. If a facility looks bright and clean and the staff is friendly, that may give families the confidence that their loved one’s needs will be adequately taken care of, and that they will be safe with trusted caregivers.

Sadly, that is not always the case. Stories in the news too frequently alert us to alarming reports of nursing home negligence—not just neglect, but also verbal, physical, and sexual abuse, intentional overmedication, and robbery.

According to the Centers for Disease Control, there are 1.4 million Americans living in 17,000 nursing homes in the U.S., with almost 70 percent of those facilities run by for-profit corporations. When nursing homes have pressure from corporate owners to meet ambitious profit goals, budget considerations may take precedence over the care and staffing requirements of their most vulnerable residents.

In the CDC publication Elder Abuse Surveillance: Uniform Definitions and Recommended Core Data Elements, elder abuse is defined as “An intentional act or failure to act by a caregiver…that causes or creates a risk of harm to an older adult.”

When family or friends of a nursing home resident suspect their loved one may have been harmed, they often find it difficult to prove, especially if the elderly resident has difficulty communicating.

Some families are fighting back against elder abuse in nursing homes by placing cameras in the rooms of their loved ones to monitor the interactions with—and care of—the elderly resident. This approach can bring peace of mind to a family, as it allows them to provide supervision for their elderly loved one’s care. In the best case, they would be reassured that their family member is receiving the care and compassion they deserve. In the event that this is not the case, the family would be alerted to the situation and may take timely action to correct it.

If the presence of a camera is known to nursing home staff, it could serve as a deterrent to abusive activity. In the case of an accident, the recording could help clarify what happened and could prevent nursing home staff from being wrongly accused. On the other hand, if the recording were to document actual abuse, it could serve as proof if civil or criminal action were to become necessary.

Placing cameras in nursing homes to monitor activity is not without controversy, however. In general, the nursing home industry is opposed to it, citing concerns about privacy of the resident, any roommates, and staff.

To date seven states have passed laws allowing the use of cameras in nursing homes. Two states—New Jersey and Wisconsin—initiated a program to loan secret cameras to families to assist in documenting suspected abuse. State laws and guidelines vary regarding permission and policies for placing cameras in nursing homes. For example, in Texas, the law does not apply to private facilities, only to state-supported living centers.

In Arizona there is no current legislation regarding video cameras in nursing homes. Families who want to place a camera in a loved one’s room may want to determine the facility’s policies before taking such action.

If the nursing home allows the placement of a camera, there will be concerns such as privacy to consider. For example, if there is more than one resident in a room, you will be required to get consent from them, or from their guardians or Powers of Attorney.

As the U.S. population continues to age (by 2030 1 in 5 will be age 65 or older), the importance of good nursing home care will be a great concern for many Americans. As opportunities will continue to exist for abuse, using tools like cameras for accountability will help ensure that vulnerable nursing home residents are treated with compassion and respect.

If a loved one has been a victim of elder abuse or negligence, contact the experienced and compassionate attorneys at Hollingsworth Kelly for a free consultation.

Do Self-driving Cars Really Mean Fewer Auto Accidents?

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Self-driving cars have been making their way onto streets and highways for a few years now, and the technology continues to improve. While they may hold the promise of fewer auto accidents due to human error, they aren’t yet error-free.

Several cases of injuries or deaths involving self-driving vehicles have been in the news, including the incident of a pedestrian killed in Tempe, Arizona in March 2018 by a self-driving Uber. This was the first known traffic fatality involving a pedestrian and a self-driving car. The car was in self-driving mode and had a human safety driver in place. A preliminary report on the accident showed that the car recognized the need to brake when the victim was spotted on the roadway. However, the emergency braking system had been disabled to allow the human safety operator in the vehicle to brake when necessary. Unfortunately, the human operator had been distracted watching a show on her mobile electronic device and did not see the pedestrian. According to the report, the system did not alert the human operator to the need to brake.

Following this fatal accident, Uber suspended testing of its self-driving vehicles in several states. Arizona governor Doug Ducey then suspended Uber from continuing to test its vehicles in Arizona. By the end of May, Uber announced that it would no longer test its self-driving vehicles in Arizona at all.

Arizona had been particularly keen to attract self-driving car companies to the state. Governor Ducey issued an executive order in 2015 promising little in the way of regulations for companies wanting to test their self-driving vehicles in the state. Dozens of companies flocked to Arizona to take advantage of the permissive and regulation-free atmosphere.

Several companies, including Uber, GM, Ford, Waymo, Tesla, and others are developing and testing self-driving cars. These companies vary widely in the level of development, including the number of miles they are able to drive without requiring human drivers to take control.

Some states, such as California, require manufacturers of self-driving cars to report incidents in which human drivers have to take control (also called an “intervention”). One site reported that in California, Waymo cars traveled approximately 5600 miles without human drivers taking control or intervening. General Motors reported one intervention approximately every 1250 miles. Unlike California, Arizona does not require manufacturers who are testing self-driving cars to report incidents in which human drivers take control. The New York Times, however, was able to determine that Uber was barely meeting its target in Arizona of just 13 miles per intervention as of March 2018.

As of March 2018, there were an estimated 600 driverless cars on the road in Arizona. Waymo was testing cars with an operator in the vehicle, but not behind the wheel, as of November 2017. Arizona still doesn’t require companies to report accidents involving self-driving vehicles, so it’s difficult to determine a total number for how many injury and non-fatal accidents have involved a self-driving vehicle in the state.

Are we allowing these vehicles on public roads before all the issues that could affect public safety have been worked out? As the recent unfortunate accident involving the pedestrian in Tempe shows, even cars with a human safety driver aren’t yet infallible. In addition, there are numerous other factors to consider, including insurance, reporting requirements, and liability issues. As the LA Times pointed out, self-driving cars are here, but are we, and our social and legal structures, ready for them?

Pet Distractions While Driving

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When we think about distracted driving, we most often think about talking or texting on a cell phone. Those aren’t the only distractions drivers face, however. Many people don’t think about pet distractions while driving. However, driving with a pet unrestrained in a car can lead to driver distraction.

A 2011 survey of dog owners found that over 50% of people reported that their attention was taken away from the road in the previous year while petting their dog, and nearly 20% admitted to having taken their hands off the wheel to keep a dog from getting in the front seat. In addition, 17% reported that they had held or allowed a dog to sit in their lap, and 3% even admitted to taking a photo of their dog while they were driving.

Considering that there are nearly 90 million dogs in the U.S. (not to mention cats), those numbers show there are potentially a lot of distracted drivers on the roads.

An animal in a car (dog, cat, or other) could also affect a driver’s ability to control the car by interfering with steering or changing gears, getting under the gas or brake pedals, or blocking the driver’s view. Any of these could cause an accident by themselves, but the driver may also be distracted by trying to control the animal.

Besides being a distraction that could lead to a crash, having an unrestrained animal in the car is dangerous, both for the animal and the occupants of the car. In the event of a crash, an animal can be thrown with great force and can be injured or killed, or can injure or kill a driver or passenger. Think about an unrestrained 10-pound animal in a 30 mph crash—the pet becomes a projectile that can be flung about the car with 300 pounds of force. Even if you avoid a crash, sudden braking at high speed can cause an unrestrained animal to be hurled with deadly force.

Despite the dangers of driving with unrestrained animals, only eight states currently have laws regarding restraining an animal in a vehicle. So far only Hawaii specifically bans holding an animal in your lap while driving. Only a handful of states prohibit actions that could be considered distractions while driving, and this could include interacting with an animal. Arizona currently doesn’t have a statewide law on distracted driving.

Several accidents have been reported to have been caused by distractions from animals in a car. These include an accident in North Dakota caused by a dog that leaped into a woman’s lap, causing her to crash into a pond, and an accident caused by distraction from a cat that caused the driver to swerve into a school bus.

To avoid injury (or even death) to you or your pet, the American Veterinary Medical Association recommends that you use a harness or carrier to restrain your pet in a vehicle. The Center for Pet Safety has carried out studies of harnesses, crates, and carriers and has made recommendations about restraining animals in cars.

By restraining your pet in your vehicle you are less likely to become distracted by your pet while driving, which can help keep you, your passengers, and pets safer in the event of an accident.

How UPS Drivers Avoid Crashes

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UPS drivers who have not had an avoidable accident for at least 25 years are inducted annually into their elite “Circle of Honor.” So far, 10,504 drivers , including Robert Gomez, Jr. of Tucson, have received this distinction. Mr. Gomez puts in over 100 miles daily (meaning he has logged at least 670,000 miles for UPS) and has delivered more than a million packages. How do he and other UPS drivers manage to avoid crashes and travel so many accident-free miles? The answer lies in the training they receive.

Before a new UPS driver delivers a single package, they must pass a demanding training program. Integral to this program are five “seeing” habits that keep drivers safe:

1. Aim High in Steering. Look well ahead, not just at the vehicle in front of you.
2. Get the Big Picture. Look out for things going on around you.
3. Keep Your Eyes Moving. Don’t fix your gaze—look around; use your peripheral vision.
4. Leave Yourself an Out. Prepare; plan an escape route if something unexpected happens.
5. Make Sure They See You. Use signals, lights, horns; make eye contact.

Two things you may not have noticed about UPS drivers, but that are important to their safety record, is that they rarely turn left or back up.

UPS drivers are taught to favor right turns unless a left turn is absolutely necessary. Left turns cause a vehicle to go against the flow of traffic and are more likely to cause an accident. A study by the National Highway Traffic Safety Association (NHTSA) of crashes in intersections (“Crash Factors in Intersection-Related Crashes: An On-Scene Perspective”) showed that of “critical pre-crash events” (an event that made a crash inevitable), over 22% involved left turns. In contrast, right turns were reported as pre-crash events only 1.2% of the time.

A study in New York City showed that left turns were involved in more pedestrian crashes than right turns by a factor of 3 to 1. In addition to reducing the risk of collisions, UPS found that implementing minimal left turns has not only reduced accidents, but it also has saved millions of gallons of gas each year and reduced vehicle emissions (since vehicles don’t idle while waiting to turn left).

UPS drivers are also taught to avoid backing up because it increases the chances that the vehicle might collide with something or someone. In the NHTSA report “Fatalities and Injuries in Motor Vehicle Backing Crashes,” most fatalities and injuries were found to involve passenger vehicles. Children under 5 years of age and adults over 70 were at greater risk. Driveways were the scene of the greatest number of deaths from backover collisions.

Remember that if you cause an injury or an accident while backing up, you may be held responsible for those injuries. If you must back up, check your surroundings carefully and thoroughly before doing so. When you do back up, back as slowly as possible. Use your rearview mirror, side mirrors, and backup camera (if available). Avoid backing out of a driveway into traffic. Instead, back into the driveway so you can pull out into traffic when leaving. In addition, make sure your backup lights are working in case you have to back up at night.

UPS drivers who have the privilege of being a part of the “Circle of Honor” have shared their advice for staying accident-free. This advice includes watch your mirrors; don’t be in a hurry; focus all the time; get proper rest; when you’re driving, drive; and avoid distractions.

You may or may not put in as many miles as a typical UPS driver, but you can learn from their training to avoid crashes and protect yourself and others from accidents and injuries.