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Monday, November 26, 2012

EMTALA Issues Remain a Source of Confusion for Physicians and Medical Staffs

EMTALA (the Emergency Medical Treatment and Active Labor Act) was passed by Congress in 1986. The purpose behind the law was to ease the burden of public or so called charity hospitals from having to treat indigent patients because other hospitals refused to treat such patients due to their inability to pay. EMTALA is a non-discrimination law rather than a law establishing standards of care. The scope of the law is very limited. A hospital's obligation is to (1) provide an appropriate screening to determine whether an emergency condition exits and (2) if there is an emergency condition the facility cannot transfer a patient until the patient is stabilized or if other conditions of law are met.

A physician's obligation under EMTALA essentially compels a physician who is on call to go to the hospital's emergency department and to examine and treat a patient as necessary to satisfy the hospital's screen and stabilize duty. Contrary to what some hospitals claim (and what some medical staffs decide), there is no obligation under EMTALA to see or treat a patient in a physician's office. A positive or negative outcome has no bearing on the issue of EMTALA compliance. The futility of providing treatment to screen and stabilize is no defense to an EMTALA violation claim. Physicians who fail to comply with EMTALA can expect an investigation from the Office of Inspector General (OIG) of HHS and can face a civil monetary penalty of up to $50,000. Physicians who are found not to comply with EMTALA often face regulatory action (licensing board) and medical malpractice suits.

1. Medical Screening Examination (MSE) Requirement

42 USC §1395dd (a) requires a hospital to provide for an appropriate screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists. The law proscribes the basic elements of an appropriate MSE, but does not go so far as to dictate the clinical particulars that must be implemented.

2. Stabilizing Treatment Requirement

Subsection (b) provides in pertinent part:

...the hospital must provide either -

(A) within the staff and facilities available at the hospital, such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility in accordance with subsection (c).

Under subsection (c) a patient who has not been stabilized may be transferred only if the individual (or his/her representative) understands the risk involved with the transfer and requests in writing transfer to another medical facility and a physician has a signed certification that based on the information available at the time of the transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another facility outweigh the increased risks to the individual...

The terms "to stabilize" and "stabilized" are defined in Subsection (e), but are subjective or situational in nature. The definition depends on the risks associated with the transfer and requires the transferring physician faced with an emergency to make a fast on-the-spot risk analysis. Federal Appeals courts have supported the position that "stabilize" for the purposes of transfer is a relative concept that depends on the situation.

3. The Transfer Under subsection (c) of the law, a patient who has not been stabilized cannot be transferred unless there is a signed certification based on the information available at the time of transfer, the medical benefits reasonably outweigh the risk to the individual from effecting the transfer and only if the receiving facility has agreed to accept transfer of the individual and to provide appropriate medical treatment. Only unstable patients require a certification and consent of the receiving hospital. A patient who has been stabilized in the emergency room of the transferring hospital may be transferred to a receiving hospital without a certification and without an express written agreement of the receiving hospital. Stabilized patients may be transferred without any such limitation.

Conclusion Medical staffs must be completely aware of EMTALA's provisions to (1) ensure their members comply, and (2) have meaningful dialogue with hospital administrations, whose business objectives may conflict to some extent with those of the medical staff members. Physicians who are accused of EMTALA violations, either at the medical staff level, or as a result of an OIG investigation, need prompt and thorough guidance.

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Medical Negligence, The Third Leading Reason For Death In The United States

It is a surprising fact that the 3rd leading cause of death in the United States of America is medical malpractice. Mistakes created by people in the medical community that are preventable lead to approximately 100,000 premature deaths annually. And thousands more are seriously injured as a result of negligence of a doctor, nurse, nursing assistant, pharmacist, or other professional that they trusted to take care of them. When medical professionals make some mistakes, they're held accountable under law for the mistake. If you reside in the California area and wish to file a compensation claim against a negligent medical service provider, a medical malpractice attorney can fight for you to help you receive the monetary compensation you are due.

Medical malpractice is defined under law as the deviation of accepted standard care that leads to injury or death. Most medical malpractice cases never get filed. Medical malpractice takes many forms, such as:

• Injuries which happen during the birthing process, like oxygen deprivation

• Complications from surgery

• Complications that arise as a result of anesthesia

• Being dispensed an incorrect medicine or being given a different patient's medicine

• Not carrying out a patient's living will or advance directive order

• Failing to follow-up on a patient's condition

• Failing to obtain informed consent from the patient

• Failing to deliver treatment

• Failing to protect patient from falls within a hospital setting

• Improper treatment

• Not correctly diagnosing a disease or not diagnosing a disease within an appropriate period of time

• Mishandling of any medicines

• Performing treatments or surgeries which are medically unnecessary

• Prescription errors

These are simply some of the types of medical malpractice which you as a patient might undergo. It is vital that you act immediately to maintain your rights when you or possibly a loved one has become a victim of some type of medical negligence which has led to injury or death. It is possible that you're entitled to compensation that will cover your pain and suffering, any time lost from work, your medical expenses, and your future medical costs.

Your rights will be protected by a medical malpractice attorney. A knowledgeable attorney will fight the big insurance providers which are representing medical professionals and speak on your behalf against them whenever they would like your claim to be settled for pennies on the dollar. Medical experts and healthcare providers have lawyers spending so much time for their side to prevent admitting liability and being penalized monetarily for any mistakes that they make. That is why it is necessary that the victims of medical negligence be represented by experienced and knowledgeable medical malpractice attorneys who're seasoned in the courtroom when it comes to effecting justice for their clients and helping them obtain the monetary awards which are due them.

Have You Been A Victim of A Misdiagnosis of Melanoma?

Believe it or not, even with the growing awareness of skin care and sun safety, the main cause of death from a form of skin disease is melanoma. Melanoma is a type of skin cancer and it can be quite serious and aggressive, making it very important to address quickly. When melanoma occurs, melanocytes are affected. Melanocytes are specific types of cells that are in charge of giving skin its pigmentation, which is referred to as melanin. Melanin is a natural material that provides color for the skin and hair.

While everyone tends to think of just the skin area when discussing melanoma, it can also affect the iris of the eye, which is the area that is colored. That being said, it is most common for melanoma to develop on the skin that overall appears normal. It can also start off as a mole or other area that is abnormal and can change with time. Moles that are present from very early on, even birth, can develop into melanoma.

There are four main types of melanoma. The most commonly occurring form of the disease is referred to as superficial spreading melanoma. This is usually identified by the flat, irregular shape of the area, along with various shades of black and brown. Superficial spreading melanoma can form at any time, in all age groups, can be found in just about any area of the body, and is more commonly seen in people with fair skin.

Nodular melanoma is the second most common form of the condition and is typically noted by a raised area that is dark blackish blue or bluish red; however there are some forms that have no color. This form is the most aggressive form of the disease and accounts for roughly fifteen percent of all cases.

The third most common type of melanoma is lentigo maligna. This form of the disease is commonly seen in elderly people, and is found on the skin located on the arms, neck, and face, or any other area that has been damaged by the sun. This type of melanoma is recognized by its flat, large size, and can be light brown with areas that are darker in color.

The fourth type of melanoma is somewhat rare and is called acral lentiginous melanoma. This form of the disease is found on the palms of the hands, the soles of the feet, and under the nails and is more often seen in African Americans.

In addition to the above mentioned cases, there are also rare types of melanoma that form in the rear of the eye, in the retina, and even in the mouth. These forms of the disease are typically found during routine dental examinations or eye examinations. Even rarer, are cases of melanoma that form in the anus, the urinary tract, the vagina, the esophagus, and the small intestine.

Melanoma is a serious medical condition that can spread rapidly. While it is true that melanomas are not as common as other types of skin cancer, cases continue to rise each year, making it a leading cause of death related to dermatological issues. As people continue to age, the risk of developing melanoma increases as well, but it is important to note that younger people can also be affected.

Melanoma can be very aggressive, and can pop up at just about any stage of life. Since it can be a bit confusing distinguishing between a harmless mole and something more serious, the ABCDE guidelines have been put in place to help people judge their skin issues. "A" is for Asymmetry due to the fact that the shapes of melanomas are often irregular. "B" is for Border due to the fact that the borders of melanomas are also irregular. "C" is for Color because most melanomas have multiple colors. "D" is for Diameter because the majority of melanomas have a diameter of more than seven millimeters. "E" is for Evolving because melanomas change over time.

In order for a correct melanoma diagnosis to be made, a medical professional skilled in the field of dermatology, or other type of skin cancer specialist should examine the area in question. If you are seen by a primary care physician who does not specialize in issues with the skin, you should be recommended to a specialist. In the event that this recommendation is not made, a form of medical negligence may have occurred.

It is very important that any suspicious lesions be checked by a specialist since they can promptly make an accurate diagnosis and provide the best course of treatment. These professionals know how to examine the area, use special tools like a dermatoscope, and remove the discolored area to be further examined in a laboratory. Biopsies and laboratory tests are critical to making a correct diagnosis of melanoma. Follow up tests and examinations are also necessary. Furthermore, an incorrect dismissal of symptoms as something far less serious can also have devastating results that should not be left unpunished.

If you or someone you know has been the victim of a melanoma misdiagnosis you should not delay in seeking professional legal assistance. It is in your best interest to contact a personal injury attorney as soon as possible in order to ensure your legal rights are protected.

Since different states have various laws and statutes of limitations on this type of claim, it is not advisable that you attempt to file on your own without professional assistance. A personal injury attorney who is skilled in the area of medical malpractice and negligence knows the ins and outs of the system quite well and can help you every step of the way, from filing to settlement. Because most personal injury attorneys work on a contingency basis, you have no worries about funding your claim as it progresses through the system. An issue this serious should not be allowed to happen. Not only are you protecting your own interests by taking action, you are also helping to ensure this type of action does not happen to other innocent victims in the future.

Medical Malpractice - Can I Sue My Doctor?

It is the legal duty of all doctors to provide proper and adequate health care to their patients. They are legally allowed to refuse to take a new patient, whether due to personal reason or a clinical disagreement with a patient. However, if a doctor has accepted a patient, then he/she can not turn away that patient.

Patients have a legal right to get appropriate medical treatment. If the doctors do not or can not provide proper medical care, then it amounts to medical malpractice-for which patients can rightfully sue their doctors. We will look at three areas of malpractice in this article.

Negligence

Negligence is a major type of medical malpractice. A doctor can be sued for negligence if she fails to provide you with the kind of medical care that any reasonable, qualified doctor would give you in those particular circumstances.

If she does not meet that standard of competence, care and conduct, then you can legally sue her. If you suffer an injury or disease due to the negligence of your doctor, then she may be legally bound to pay you.

A doctor can not put forth any excuses, such as, "I did the best I could." If she fails to act reasonably, then she may have to pay her liability.

Failure to obtain informed consent from a patient

Failing to get informed consent from the patient before administering medical treatment is another type of medical malpractice. Sometimes it may also be considered an assault.

A doctor must inform you about your medical condition. You have a right to know the nature and details of the treatment recommended by your doctor. Unless you are well-informed about the tests and procedures involved, you are not in a position to give your consent to the treatment.

A doctor is not required to explain each and every risk, but she must disclose the risks relevant to your consent for the treatment.

A doctor is legally obligated to obtain your informed consent before starting your treatment. Informed consent means you consent to the treatment only when you are well acquainted with the nature of the medical procedure, risks involved and other possible options.

If the doctor does not follow this guideline, then she can be sued for medical malpractice. However, you can only sue your doctor if the lack of informed consent results in medical problems. Otherwise, your doctor will not be liable to you.

Patient-doctor Contracts

The third kind of medical malpractice is breaking the contract between patient and doctor. This is a recent addition to the list of medical malpractice. You must discuss with your lawyer how the abovementioned contract is related to your medical services plan.

If you are a victim of medical malpractice: what you should know

You need to speak with a personal injury/medical malpractice lawyer right away. They are experts at this sort of thing and know how to handle hospital administrations and insurance companies, you don't.

Don't sign anything! The hospital or doctor's office may want you to sign a "release" of some sort as a "routine thing" they do in these types of situation, don't sign it, and bring it to your lawyer.

A medical malpractice action must be brought to court within two years of the alleged act. Act quickly before the witnesses start to forget the events. It will cost you nothing to speak with a lawyer; not doing so is foolishness,

One final comment

Some people may be reluctant to bring a suit against a family doctor they have known for years and maybe even interact with socially, this is understandable. The truth is you have been insured by this person and deserve to be treated with respect and compensated for your injuries. Your doctor has insurance; this is why they have it!

So What Is Medical Malpractice?

Medical malpractice is a form of negligence case. In this negligence case, the offer is a healthcare provider, mostly a physician, and works on the state personal injury law. Medical malpractice condition applies when the physician digresses from the normal standard course of action, whether by intent or by mistake. For instance, if your hospital bed's rail isn't locked properly, that can be posed as a medical malpractice as an open-heart surgery performed in a different process can be. It can be in the form of wrong medication, lack of follow-up care, surgical, prenatal or delivery errors, including anesthesia.

Any form of physical care that is substandard is termed as medical malpractice. Substandard can be defined as violation of the normal procedure of medical actions.

In this case, the Canadian law definitely protects you from medical negligence from your physician, whether he is a private physician or a hospital employee. The first thing to be proven is the professional relationship between the physician and the patient. The second thing is that the patient hasn't given any informed consent to the recommended digression from the normal process. This normally happens when the physician explains the benefits, risk and detailed process of a recommended action, rather than the normal one, and the patient agrees to it.

If it is not informed and consented to beforehand, then the patient can claim compensation for the negative consequences that followed the medical malpractice. But just saying that you could have been hurt due to the malpractice isn't enough. You have to show real consequences, whether physical or economical, and its direct relation with the medical malpractice.

Compensation claims on medical negligence cases can turn out to be quite tiring, cumbersome and tricky at most. The plaintiff's prosecutor who is pretty much deft in the lawsuits will even make it so. The only way is to find yourself a good lawyer specializing in malpractice cases, and let him take it from there.

If it is not informed and consented to beforehand, then the patient can claim compensation for the negative consequences that followed the malpractice. But just saying that you could have been hurt due to the malpractice isn't enough. You have to show real consequences, whether physical or economical, and its direct relation with the malpractice.

Common Questions About Medical Malpractice

Those who have been victimized by the negligence or carelessness of a doctor, nurse, or medical organization, most likely have many questions going through their mind. No one ever expects to go through this type of ordeal and it is impossible to be prepared for what might happen. If you have found yourself dealing with a misdiagnosis, birth injury, medication error, plastic surgery error, or wrongful death, having a strong legal advocate on your side could make all the difference in the outcome of your case. You should not have to suffer because of the actions of another and the doctor or nurse should be held responsible for what they have done.

What is medical malpractice? This is a broad category of personal injury law that involves any error, negligence, or carelessness on the part of a medical professional or medical organization. When their treatment falls below the standard of care expected, they could be guilty of negligence. This does not include those who are merely unhappy with the outcome of their surgery or treatment. No one can guarantee that a certain result will come from a medical procedure and the law does not allow patients to sue if they are not happy with their progress. However, if undesirable results occurred because the doctor or nurse made a mistake, this could fall under medical malpractice.

What are the main types of medical malpractice? There are countless ways that patients have been harmed while under the care of a doctor. However, there are some mistakes that are more common than others and some that lead to more serious ramifications. Anesthesia is used extensively in surgeries so that patients can be put to sleep during painful procedures. The anesthesiologist has a huge responsibility on their shoulders, as too much of the drug can lead to serious injury or death. Birth injuries can occur if the mother unknowingly took a harmful drug or if the medical staff made a mistake during delivery. Another common type of case is misdiagnosis. Doctors are responsible for examining every aspect of each case so that they can accurately diagnose the illness. If they fail in this regards, the treatment will be ineffective or even worsen the patient's condition.

What if a patient died from medical malpractice? Wrongful death is a heartbreaking situation as it, by definition, is a preventable incident. Although filing a lawsuit against the person or persons responsible will not bring the loved one back, it is still necessary to hold the guilty party liable for what they have done. Not only could this ensure that it will not happen to another person in the future, but it can bring a sense of justice to the family left behind. If you would like to discuss your case with a professional, contact a medical malpractice lawyer from your local area to learn more.