Author: Joseph

I am the chief legal officer of this operation. Legal Friction is my blog addressing noteworthy legal battles. The name has two meanings, being a play on words and describing the public's view of the law. Litigating cases is not usually a smooth, comfortable process; it is a rough, abrasive trial. I am a lawyer. I am a scientist. I am a problem solver. I love technology. I love challenges. Challenges should be met with fervor, preparation, and focus. Challenges present problem-solving opportunities. Solving problems and constantly learning motivates me. You could replace "challenges" with "legal matters." I became a registered patent attorney—working on intellectual property protection—to be more than a one-dimensional lawyer. I became focused on protecting client interests and assets, mitigating their risks, and developing broad strategies to optimize results. Justice comes in many forms and I am committed, in both the short- and long-term, to ensure clients obtain the best results possible. I have extensive experience handling multi-million dollar litigation, managing multi-million dollar procurement contracts, protecting privacy interests, and maneuvering through regulatory land mines. This includes working with HIPAA, HITECH, Medicare, and other privacy/security regulations. Recent large scale hacks piqued my interest in data protection and privacy interests—many companies and law firms fail to evolve with technology and its inherent risks, settling with status quo rather than taking a proactive approach to protecting client interests. Sincerely, Joseph D'Aguanno

When Preventable Medical Errors Impact Your Life, Should You Leave Your Future In The Hands Of The Federal Government? Conservative Organizations Say No To Federalizing State Medical Malpractice Laws

Preventable medical errors kill and injure Americans at an alarming rate.  A study printed in the Journal of Patient Safety, as reported by Scientific American, reports that “the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year,” and that serious injury occurs 10- to 20-times as often.

Despite this epidemic, the federal government is attempting to trample on state’s rights by fast-tracking legislation that protects unsafe health care providers, aka H.R. 1215.  Normally, your right to hold unsafe health care providers accountable for preventable medical errors is controlled by state law.  There are many lawyers dedicated to protecting your right.

Now, in a surprising turn of events, over 10 conservative rights organizations and leaders joined together in opposition to H.R. 1215.  In a letter to Speaker Paul Ryan, these conservatives are urging Congress to reject “the ‘federalization’ of state tort law that is contrary to constitutional principles and represents an undue restriction on freedom.”

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HR 1215 Conservative Opposition Letter

In other words, even Republican supporters are offended by the federal government’s attempt to overstep its bounds and take power away from states and their citizens.

It is likely you know someone who has been injured or killed by a preventable medical error, or that you will be impacted by a preventable medical error sometime in your life.  Joe is committed to protecting your right to be fully and fairly compensated when your life is impacted by preventable medical errors.  Are you?

If you would like to keep the federal government from limiting your right to be fully and fairly compensated when your life is impacted by preventable medical errors, then please reach out to your Congressional representative and senators and let them know.

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Medical Malpractice in a U.S. Epidemic

Medical malpractice in the U.S. is an epidemic.  According to researchers at Johns Hopkins Medicine, preventable medical errors kill as many as 250,000 Americans every year, and injure countless others. That would make it the third leading cause of death in America–behind only heart disease and cancer. When was the last time you were called to donate money to help fight preventable medical errors?

Yet, the conversations about medical malpractice focus on doctor’s insurance premiums and cost of health care. The irony is that reducing the number of preventable medical errors likely would reduce health care costs and insurance premiums, while also protecting patients and their families.

What is amazing is that only a small percentage of those injured by preventable medical errors file lawsuits.   For instance, Maricopa County has 4 million people and, based on the above statistic, at least 3,125 Maricopa County residents die each year from medical negligence–that does not include the thousands injured by preventable medical errors.  Yet, there were only 269 medical malpractice lawsuits filed in 2014.

It is likely the vast majority of those lawsuits had merit. Why?

As seen from my last post, the injured person carries a huge burden of proof. Meeting this burden of proof, and facing the scorched earth defense that is typical, usually costs over $100,000 for experts, discovery costs, and other expenses. That does not include attorneys’ fees, which are usually only paid if the injured person’s case is successfully resolved. What person is going to risk over $100,000 and two years to litigate a case that has no merit?

Also note, that Courts will dismiss cases that have no merit and jurors are not easily swayed by sympathy. Therefore, the myth that doctors and hospitals pay to make frivolous cases go away is unfounded. The bigger problem is that the vast majority of health care providers who make preventable medical errors are never held accountable.

Contact me if you think your health care provider made a preventable error and caused serious and permanent injury.

Medical Malpractice Basics

In Arizona, people have the right to sue their health care providers for medical malpractice.  Regardless of the false narratives about how these cases impact the delivery of health care, there is a constitutional protection to your right to hold health care providers accountable for their negligence.

Historically, medical malpractice laws were  designed to accomplish certain specific social objectives, including addressing poor quality care, fairly compensating patients for injuries resulting from negligence, and imposing justice in a manner that would make future occurrences less likely.

As the injured person, you have a burden.  You must prove three things.  In basic terms, you must prove: (1) the health care provider either did something they should not have (negligent act) or did not do something they should have (negligent omission), (2) that the negligent conduct caused an injury, and (3) your damages.

In most cases, you must prove these three elements by a preponderance of the evidence.  Arizona’s lawmakers raised the burden of proof in cases involving emergency room care and emergency medical services to clear and convincing evidence.   Frankly, with the conservative nature of Arizona jurors and general deference given to health care providers, you might want to view every case as requiring clear and convincing evidence.

In addition to raising the burden of proof, Arizona’s lawmakers have worked hard to interfere with your constitutional rights and impede your ability to hold health care providers accountable.  These obstacles will be addressed in future blog posts, but just know that Arizona’s lawmakers enacted several obstructionist laws that aim to limit your right to sue, limit your right to obtain full and fair compensation, and limit your right to the truth about what happened to you.

Contact me if you think someone you love was seriously and permanently injured by a careless health care provider.

Medical Malpractice Risks Require Heightened Awareness

Medical Malpractice is a prolific problem in Arizona, and the United States.  Doctors, nurses, and other health care providers are expected to follow certain rules to protect their patient from injury.  Many times they are careless, and sometimes even reckless.

Like the person who accelerates to get through a yellow light but hits a car turning left in front of them, most health care providers do not intend to cause an injury.  Sometimes they cut corners or take calculated risks because doing so never caused a serious injury before.  Sometimes they figure this patient is just like past patients.  And other times they are distracted.  In those situations, critical judgment necessary to protect their patient is temporarily suppressed or missing altogether.

Therefore, you should do what you can to protect yourself or your loved one.  Ask questions.  Lots of them.  Demand answers.  Lots of them.  Do not be afraid to get a second opinion or another perspective.  The health care providers are being paid a lot of money to provide safe and effective care.  Patients pay significant sums for their safety.  They should not have to pay with their lives as well.

Contact me if you think someone you love was seriously and permanently injured by a careless health care provider.

JURY RETURNS $6.3 MILLION VERDICT IN MEDICAL NEGLIGENCE CASE

PHOENIX, ARIZONA – Shawn Cunningham, Joseph D’Aguanno, and their hard-working team at Harris, Powers & Cunningham obtained a $6.3 million verdict in a medical malpractice case against Banner Health for the negligence of its Emergency Department physicians for failing to diagnose and treat the patient’s vertebral artery dissection. Shortly after Banner discharged the patient, he suffered a disabling stroke. As a result, the 39 year-old man was totally disabled.

Birth Injury Verdict Further Screws Child*

MLive, an online Michigan news site, reported a recent jury verdict in a birth trauma case.  The Michigan jury awarded $13 million to the parents of baby girl who was left with limited use of her right arm following birth trauma.

The injury is commonly called a brachial plexus injury, referring to a stretching or tearing of the network of nerves running from the spine in the lower neck to the armpit and arm.  These nerves innervate the upper arm, forearm, and hand.  Permanent damage to these nerves can result in partial or complete loss of function.  It is usually caused by excessive traction during the birthing process.

In the Michigan case, the baby’s nerves were completely severed when resident doctors pulled down excessively on her head while her shoulder was caught on the mother’s pelvic bone.  The pulling down of the baby’s head stretches the nerves.  Continued traction without release of the shoulder will tear the nerves.  The family alleged that the doctors should have done a cesarean section or delivered using a method that would have caused less strain on the baby.  The hospital employed a typical defense to these cases…it was not us but the natural birthing process that caused the injury.  The jury did not buy into this defense, likely because the injury could have been prevented with reasonably prudent care.

The worse thing about this verdict is that it will be reduced (to about $4 million).  Michigan places a cap on non-economic damages at $433,400.  In other words, Michigan lawmakers believe that the inability to effectively use an arm–thereby limiting athletic pursuits, restricting recreational options throughout the baby’s lifetime, and likely creating social anxiety and embarrassment–is worth less than half-a-million dollars.

The child  has undergone multiple surgeries and continues to wear a brace on her right arm, which is malformed.  This is a permanent injury that will never go away.  She will require a lifetime of assistance in completing basic daily tasks, such as brushing her hair or getting dressed.  This injury will limit virtually every aspect of her life.  And if she lives a normal life expectancy, Michigan says the injury is only worth around $5,300 a year, or $14.50 a day.

Really?  Would give up your arm for $14.50 a day?

I doubt any Michigan lawmakers would.

 

 

* This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.

Preventable Medical Errors Kill Americans at an Alarming Rate*

There is an epidemic that is killing almost half-a-million Americas and injuring millions of others every year.  This epidemic is as bad as the top two killers of Americans, cancer and heart disease (each claiming over 550,000 lives each year), and is far worse than accidents (claiming over 120,000 lives each year).  What makes this epidemic more tragic than the most common causes of death in the U.S. is that these deaths are 100% preventable.

Preventable medical errors kill and injure Americans at an alarming rate.  A new study printed in the Journal of Patient Safety, as reported by Scientific American, reports that “the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year.  Serious harm seems to be 10- to 20-fold more common than lethal harm.”  This is a problem of epidemic proportions that must be fixed.

When was the last time you heard politicians or lobbyists address how to prevent medical errors?  Probably never.  Rather than publicly address ways to make health care safer, they pollute the airwaves with stories about “defensive medicine” and increased costs associated with “frivolous lawsuits.”  They suggest that doctors are afraid of lawsuits so they order more tests; however, the practical difference is looking for the problem versus taking a wait-and-see approach.  Do you want your cancer diagnosed now or later?

Americans are led to believe that medical negligence suits are an epidemic. However, according to the National Association of Insurance Commissioners, the total amount of money spent defending claims and compensating victims of medical negligence in 2010 was $5.8 billion, or just 0.3 percent of the $2.6 trillion spent on health care in the U.S. that same year.  Moreover, if hospitals were practicing defensive medicine, then why do over 400,000 Americans die from preventable medical errors in hospitals every year?

Every 1 minute and 15 seconds someone’s mother, father, spouse, sibling, grandparent, or child needlessly dies in the hospital because of a medical error.  In that same amount of time, 10 to 20 other hospital patients are being injured.  Frighteningly, these statistics do not include victims where the medical negligence occurs outside the hospital.

The epidemic of patient harm in hospitals must be taken more seriously if it is to be curtailed.  This is a pervasive problem that should demand decisive action on the part of providers, legislators, and people who will one day become patients.  Yet, the action and progress on patient safety is frustratingly slow.

The following case demonstrates how an innocent young woman, injured by improper care, was victimized by a hospital system that failed her.

A 26-year-old woman entered a Phoenix-Area Hospital for removal of an ovarian cyst.  The surgery was completed without complication; however, after entering the post-anesthesia care unit (PACU), she had an adverse effect from the anesthesia that caused her to breathe less efficiently.  The anesthesiologist provided Narcan, a medication that blocks the effects of anesthesia and narcotic medications.  Her respiratory drive and vital signs returned to acceptable levels.

While still under the influence of Narcan, the PACU nurse continued to administer narcotic medications—based on the orders the anesthesiologist wrote before the patient ever experienced breathing problems.  The orders were never changed and the nurse never questioned whether it was appropriate to continue giving the patient medications that could cause breathing problems.  Neither provider had significant experience with using Narcan in this setting.

The problem for the patient is that as the Narcan wears off the narcotic medications are able to overwhelm the body, causing deeper sedation and stopping the patient from breathing.  In a groggy state, only 90 minutes after entering the PACU, the PACU nurse sent the patient home with her husband.  The PACU nurse never told the husband about the event that necessitated Narcan, and never warned the husband about the potential adverse effects of the narcotic medications she administered.

The patient’s husband brought her home and settled her into bed to rest, not knowing that she would never wake up.  Her death could have been prevented if any one of the health care providers took steps to monitor her condition for longer than 90 minutes.  They assumed she would be fine.

Sadly, no one has stepped up and admitted to their mistakes.  Instead, the health care providers argue that the husband is to blame because he should never have left her side once they arrived at home.

* This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.