Washington Post – Wrong Site Surgery Happens 40 Times a Week

Holy crap… that’s about all I can say about that. This article is amazing. You would think that wrong site/wrong person surgery could be prevented (and it can), but it still happens. A lot.

All sorts of problems still happen with regularity. Surgery based on test results given to the wrong person. Flipped x-rays (really? even in the digital age where all x-rays are on a computer?). Marking the wrong side of the body or the wrong vertebra.

Several years ago, the National Quality Forum coined the term “never events” to describe medical errors that are almost entirely preventable. These include:

• wrong site/wrong patient surgeries,
• medication errors,
• wrong procedures,
• retained objects after surgery (clamps, sponges, etc),
• pressure ulcers or bedsores,
• injury due to incompatible blood or blood products,
• death or serious injury due to hypoglycemia

and several other very preventable but very serious errors. You can read more about them here.

The bottom line is that medical errors – even dumb ones – keep happening at a higher rate than they should. Even the staunch tort-reformers would have difficulty arguing that someone who is injured or the family of someone who dies from wrong site surgery or another one of these “never events” doesn’t deserve fair and full compensation. That’s where we come in.

(Howard Zimmerle is a medical malpractice and nursing home negligence lawyer practicing in Illinois and Iowa. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

Our Firm in the News

Here is an article about a dram shop case we filed last week. I won’t add much to what is in the article because the case is pending. It should be noted, though, that a bar only needs to be “a cause” not “the main cause” or “the biggest cause” of someone’s intoxication (although it has to be more than de minimis).

(Howard Zimmerle is a personal injury attorney in the Quad Cities who handles car accidents and dram shop cases, as well as many other injury matters. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

The Defense Attorney Wants me to Sign a “HIPAA Protective Order.” Should I Do It?

I assume everyone in Illinois has seen a few purported “HIPAA Protective Orders.” (Especially if you practice in Peoria, for some reason). While I assume a lot of lawyers sign these rather blindly, is it a good idea? Is it necessary?

1. LOOK AT THE TERMS OF THE “AGREEMENT”

A lot of the time these agreements are too broad for us to feel comfortable signing. Many of them allow the defense to get all of the plaintiff or decedent’s medical records from birth to death without notice to the plaintiff’s counsel. Not every medical record should be automatically discoverable, and both HIPAA and the Illinois Subpoena procedure contemplate giving the plaintiff’s attorney the right to object.

Another place where these agreements are typically overbroad is in the area of redisclosure. Obviously a defense attorney and staff have to be able to look at the records – yet some propsed agreements allow redisclosure to “consultants”, “insurance companies” and “all others”. You need to reign this in – you don’t want your client’s medical information to end up in the wrong hands.

Finally, some of these go so far as to violate Petrillo. Do not let that happen.

2. A HIPAA PROTECTIVE ORDER IS NOT NECESSARY.

A health care provider needs one of two things before it can disclose records pursuant to a subpoena: either a qualified protective order, or a letter with certain information, as shown below. In other words, a qualified protective order is OK, but there is an easier way to get the job done.

• A covered entity (health care provider) may disclose health care records pursuant to subpoena, but only if
  • it receives “satisfactory assurance” from the party seeking the information that the (person who the records are about) has been given notice of the request, OR
  • it receives “satisfactory assurance” from the party seeking the information that the party made reasonable efforts to secure a HIPAA qualified protective order. 45 CFR § 164.512(e)(1)(ii) 

So, in other words, a health care provider needs either a qualified protective order, or “satisfactory assurance” that notice was given. This satisfactory assurance means:

• Written statement with accompanying documentation that:
  • The party requesting the subpoena made a food faith attempt to provide written notice to the (plaintiff);
  • The notice is sufficient to inform the (plaintiff) about the litigation and permit the plaintiff to raise an objection; and either
    • The time for objection has passed with no objection, or
    • A court ruled on any objections in favor of the party seeking the subpoena (45 CFR § 164.512(e)(1)(iii)) 

If a qualified protective order is sought instead, the only requirements are that the order:

• Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested. 45 CFR § 164.512(e)(1)(v)(A)
• Requires the return to the covered entity (health care provider) or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. 45 CFR § 164.512(e)(1)(v)(B) (not clear if both parties have to do that, or just the party requesting the records.)

Be very careful with these.

(Howard Zimmerle is a personal injury and medical malpractice attorney in the Quad Cities. You can contact him at hzimmerle [at] mjwlaw.com or 309-794-1660).