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Would tort reform put back the healthy kidney?

By Steve Lombardi

A 70-year-old retired assembly worker was admitted into the Parkview Community Hospital Medical Center in Riverside, California to have his diseased left kidney removed. Following surgery he learned the doctor removed his healthy right kidney in what they call a 'never event' or a wrong-site surgery.

Is it called a "never event" because we get to make-believe it never happened?

The hospital is reported to be denying responsibility and the doctor apologized. We can't be sure if the apology was genuine or a 'patient-ha-ha you can't sue me apology' because the lawyers aren't saying one way or the other. Remember it's impossible anymore to tell if they really mean it when they say they are sorry because of the apology shield law makes all apologies phony. The apology shield law is designed to make all apologies a "never-event" when it comes to evidence the jury will hear. It's thought to be a good law because in the past patients who received an apology were less likely to sue. So now to encourage doctors to say "I'm so sorry." apologies are an evidentiary figment of our imagination. An evidentiary mirage, there really is no oasis in the evidentiary desert. A jury will never hear that the doctor said he or she were sorry. The article doesn't elaborate on whether the hospital lawyers ordered the doctor to apologize or if he thought of it on his own and really meant to apologize. From the article we also can't tell if the hospital lawyers told the hospital staff to apologize.

How do we know when the hospital lawyer ordered apology is genuine and when they are fake apologies?

So what happened that caused the healthy right kidney to be confused with the diseased kidney? We can't be sure because everything is so clearly muddled. How about your help me sort through the evidence. Remember I'm just a dumb-ol' plaintiff attorney.

'Chart was Clear'

"The chart was absolutely clear," Watkins said. "This was his left kidney."

Then, one day before surgery, a hospital nurse and Wahlstrom both wrote notes in Torres' chart, indicating that his right kidney was to be removed, according to medical records supplied by Watkins.

"The 'L' turned into an 'R,' " Watkins said. "Everything before that says 'left.' I cannot accept that the hospital is not responsible. What kind of safeguards are in place to make sure that doesn't happen?"

It's unclear whether the hospital practices a pre-surgery protocol and whether the medical staff followed it before Torres' surgery, Watkins said.

Wow, that cleared it all up. Thank you hospital lawyers. Is this the kind or health care reform the hospital industry is offering us? Well golly-gee Private Gomer, I feel better already.

Mr. Torres should be thankful he's not a Texan. In Texas under the leadership of Governor Perry they've come up with a tough love approach to medical mistakes where they let the patient take responsibility in all cases of catastrophic injury, such as this one. Here listen to Governor Perry turn his back on the injured patient and cheer on early retirement for those responsible for medical mistakes. If you're looking for the injured patients in this crowd look behind the Governor; I know they should be there because he's turned his back on them.

http://www.youtube.com/watch?v=RV_PiY5H_go

And if you're wondering how you explain wrong-side or wrong-site surgery follow this explanation by Tom Shilllue. I wish a judge would let me use this as a closing argument.

http://www.youtube.com/watch?v=SxDx2DlL0UY

In other news of new and innovative legislation characterized as unfair to the medical profession, please note that New Jersey is now 'forcing' hospitals to tell the truth and to disclose medical errors. When I was a little boy my mother called this a character builder. In Texas they call it unfair.

I'm guessing that if I asked my mother about the phony apology law she'd summon up that high school education of hers to ask the good Governor a question. "What are you stupid?"

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on September 10, 2009 (boomark / email).