New studies show that hospital deaths increase sharply in July causing a “July Effect”. The study illustrates the need for patients to practice caution while accepting medical care in that month or over the weekend days.

A recent study by the University of California at San Diego demonstrates that fatal medication errors rose 10 percent in July at teaching hospitals in the United States. This “July Effect,” doesn’t seem to mean that hospital staffs are running amok, but that more medication errors seem to be the culprit in teaching hospitals. The study investigated more than 62 million U.S. death certificates between 1976 and 2006. Of those, 244,388 deaths were caused by medication errors in hospitals such as dispensing the wrong medications, overdoses, and accidents involving drugs or biological agents.

The researchers examined certificates of inpatients, outpatients, and those who died in the emergency department, in which medication error was recorded as the primary cause of death. Counties containing teaching hospitals experienced a 10 percent rise in fatal medication errors in July, whereas counties lacking teaching hospitals did not experience that spike.

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Our firm is proud to announce eight of our attorneys have been awarded Best Lawyers in America designations for 2010. Of the eight attorneys, two were named Lawyers of the Year for 2010.

Christian (Chris) D Searcy was honored by being recognized as Lawyer of the Year in the area of medical malpractice litigation and F. Gregory (Greg) Barnhart was recognized as Lawyer of the Year in the area of personal injury.

Both seasoned and successful litigators, Chris and Greg, are honored to have been recognized amongst their peers in this way.

Six attorneys from Searcy Denney Scarola Barnhart & Shipley, PA were recognized by their peers for inclusion in Best Lawyers in America for 2010:

• John (Jack) Scarola
• John A Shipley III
• David J Sales
• Christopher K Speed
• Darryl L Lewis
• Karen E Terry

These six experienced and successful trial attorneys are also proud to have been honored in this way.

Our firm is extremely pleased and proud that The Best Lawyers in America designation has again been assigned to some of our many successful attorneys. It is our firm’s continued objective to provide our clients with only the very finest legal representation possible.

In his June 11, 1963 civil rights address, President John F. Kennedy confronted head-on the unfair treatment of African Americans in our society under our then-existing system of laws. President Kennedy, in imploring Congress to pass fundamental civil rights legislation, stated:

“…the old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law.”

Unfortunately, President Kennedy’s reference to our system of justice having the ability to remedy every wrong states only an ideal, but, sadly, not reality. Sometimes the difference between principle and truth is the result of legislative inaction or by legislative activism. Perhaps the most glaring example of legislative activism stripping away the “guaranteed” rights of citizens to have both their day in court and a remedy for every wrong can be seen in the medical negligence arena.

Let us examine the following two hypothetical scenarios.

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Recently, a woman was impregnated at a fertility clinic with another woman’s embryo.  The woman has decided to give birth and give the baby to the biological mother.  This preventable and heart breaking mistake should not have happened.

There have also been mistakes in which parents have had their eggs tested for genetic defects only to have the genetically damaged egg implanted rather than the genetically sound egg.  It is a very costly investment both emotionally and financially.

A California couple discovered that the Laurel Fertility Care Clinic destroyed 7 of 13 viable embryos because they were mistakenly inseminated with the wrong sperm.  In this case the couple had a contract that provided no embryos were to be destroyed and the decision by the clinic prevented the couple from the opportunity to make their own decisions.

What is the cause of this problem? At least in part it is likely connected to the burgeoning demand for fertility treatment in the last several years. A report from Mail OnLine sets forth that the number, in Great Britain, of women going through in vitro fertilization has increased from 23,000 in 1995 to 35,000 in 2009. Yet, the number of facilities who handle in vitro fertilization there has not increased with the numbers of women seeking this treatment.

Last Thursday, Carolyn Savage gave birth to a child belonging to another couple. The embryo was mistakenly implanted in Ms. Savage, but actually belonged to Shannon Morrell. Both Ms. Savage and Ms. Morrell were hoping for a child; because of Ms. Savage’s unselfish act, she will be denied her child, but she will provide another family with their child.

The American Fertility Association issued the following press release:

The American Fertility Association Responds to Alleged Embryo Mix-Up Case in Ohio
September 24, 2009 – An Ohio woman, 40 year old Carolyn Savage, claims a fertility clinic implanted the wrong embryo and that the baby she’s due to deliver the first week in October is not hers.  Several media reports state Savage and her husband plan to give the baby boy to his biological parents.  The name of the clinic is not being released in this very rare alleged case.
The AFA is issuing the following statements regarding the matter:
Medical:
“If the facts in the Ohio case are concordant with media reports, it’s a very unfortunate circumstance for all concerned, a result not to be minimized or trivialized. The story is newsworthy, however, because it is an extremely rare event.
In 2007, there were 132,262 IVF cycles performed in the United States (Fresh, Frozen and Donor Egg, per the CDC) in which more than 300,000 embryos were placed into the intended recipients. Embryology laboratories have extremely rigorous procedures to maximally ensure public safety and the health of our patients and their children born of IVF.
The Ohio case is rarer than 1 in a million and I speculate that human error, not malintent, will prove to be the root cause. I have every confidence that each IVF program in the country will review their procedures and discuss this case to reinforce what we already know, that the work we do each and every day is very special and that the hundreds of thousands of patients we help each year are counting on us to do our best every day.”
-Alan Penzias, MD, Member, AFA Board of Directors
Legal:
“Unfortunately, due to the acknowledged negligence of the IVF Physician and clinic, this Ohio couple, by choosing to proceed with the pregnancy, is obligated to afford the other couple the legal rights to this little boy.  Any case, such as this that would go before a court of law, would likely grant full legal and physical custody to the other couple without any visitation to the Ohio couple.  They appear to be aware of this – such an unfortunate event for all parties involved.”
-Theresa Erickson, Esq., Member, AFA Board of Directors; Member, AFA Legal Advisory Council
Mental:
“As a psychotherapist and co-chair of The American Fertility Association, patients receiving treatments live in fear of this happening to them.  The AFA continues to encourage patients to become educated consumers and ask their treatment providers about their procedures for safeguarding their genetic materials. Programs are required to have in place strict guidelines that are overseen by numerous state and federal agencies requiring very specific procedures to be practiced and in place by each reproductive center.
These incidents are rare and patients should feel assured that the majority of centers follow these rigorous guidelines.  When these rare accidents do occur, it can be not only psychologically devastating to the couples involved in this mix-up but emotional damaging to the thousands of patients who are currently receiving or starting fertility treatments. We at the AFA hope that the media will allow these couples, the children involved, and the baby yet to be born to privately get the support that they need to cope with this emotionally difficult experience.”

This type of error can certainly be characterized by the national association as a “rare” error, but I am sure that neither Carolyn Savage nor Shannon Morrell can find much solace in this representation. Carolyn Savage will undoubtedly always wonder about the baby she brought into this world.

Making the decision to go to a fertility clinic in the hope of trying to conceive a child and/or have eggs tested for genetic factors must be a very difficult decision. All clinics and laboratories should have protocols in place to prevent these devastating errors from happening; causing devastating consequences to the parties involved. This is really a zero error tolerance business engaged in by fertility clinics. Providing an explanation such as that offered by the American Fertility Association is simply insufficient and lacks the very personal consideration due to these victims.

Become an educated consumer. Read, ask questions, be a persistent presence in the process of any medical procedure you undergo.

Once upon a time there was an insurance crisis…a lawsuit crisis…a medical malpractice crisis…a series of crisis manufactured by industries who have a need for consumers to have someone other than them to blame. The insurance industry, the healthcare industry, Associated Industries — the business of business organizations; they all have very distinct business reasons for keeping consumers mad at trial lawyers. These businesses know that government does not have the time or resources to hold them accountable for negligence; sometimes intentional; and so, they keep throwing gasoline on the fire of the propaganda created disdain for trial lawyers.

When I have the opportunity to give speeches or hear them given in connection with tort reform and tort law in general, the conversation usually finds itself leading to a discussion of medical negligence, medical malpractice. From there, depending on the group, we talk about doctors “fleeing” states; excessive malpractice premiums; and, inevitably, the “McDonald’s coffee case”.

What does it take to file a medical negligence lawsuit in “good faith”? To truly understand that, you must understand the elements the plaintiff is required to prove in any lawsuit:

• Negligence – someone acted improperly—a deviation from the acceptable standard of care.
• Causation—the someone’s improper action caused damages (in whole or in part)
• Damages – the injury flowing from the act of negligence

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St. Mary’s Hospital in West Palm Beach issued a statement relating to the wrong medication errors during the treatment of Tesome Sampson and her unborn child:

“On Sept. 4, 2008, a patient came to St. Mary’s in extremely premature labor. Due to a medication error, the patient was given medication to speed up her labor instead of medication that attempts to stop premature labor. Ultimately, the baby was born and suffered brain damage,” the statement said. “This was an unfortunate error that occurred despite the safeguards we have in place. . . . We apologized to the family for this deeply regrettable error.”

From all indications, this is the first time that St. Mary’s and its parent, Tenet Corporation, has acknowledges this error. Still, they characterize the error as almost normal negligence. They claim that their safeguards were in place and, presumably, they were appropriate. If that is the case, then they have a system in place, which permits colossal errors to occur without a system “catch” to cause someone to question, to investigate, and to stop a very serious error like this. In this case, a drug (Prostin) was administered to a pregnant woman. This is a drug that would never, never be given to a pregnant woman unless you wanted to force an abortion. This is not an oops sort of mistake, this is providing care you would almost never provide to this particular patient.

Hopefully, St. Mary’s risk management is approaching their system check with a more serious tone than their public explanation.