David Betras: I’ve never filed a frivolous lawsuit…

Medical MalpracticeFrivolous, adjective: not having any serious purpose or value.

My decades-long legal career has been filled with interesting cases, challenging litigation, and high-stakes trials. But in all my years as a member of the bar, there is one thing I have never done: file a frivolous lawsuit.

That makes me an anomaly in the eyes of the insurance industry, the American Medical Association, the U. S. Chamber of Commerce, and others who claim frivolous lawsuits filed by ambulance-chasing attorneys clog our courts, are responsible for skyrocketing insurance premiums and health care costs, force doctors to practice “defensive medicine” and generally make the world a horrible place to live.

At least that is what they say when they are pushing the passage of tort “reform” legislation that slams the courthouse door in the face of Americans seriously injured or killed because someone else was negligent or reckless.

Along with venting my resentment at having my life’s work denigrated and dismissed as frivolous, a number of things motivated me to once again note that restricting access to the civil justice system makes the world a more dangerous place for our families: The drive to enact tort reform laws is continuing unabated in state legislatures across the nation.

Iowa, Missouri, Texas and Florida, where I will soon be licensed to practice, are among the states attacking victim’s rights. Here in Ohio, an effort to reverse a Draconian cap on non-economic damages is being blocked by the special interest groups and Republicans who imposed the limit in 2004.

A new report issued by the Center for Law and Justice at New York Law School thoroughly debunks many of the myths obscuring the truth about medical malpractice in the U.S. This free-to-download, 172-page publication provides a comprehensive review of the latest statistics about litigation, cost, access to doctors, insurance and patient safety.

I found the following facts to be especially compelling:

  • Experts agree that when cases are filed, they are not “frivolous.” Among the experts is Victor Schwartz, General Counsel of the American Tort Reform Association who admitted in 2011 that “It is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit…”
  • Litigation and settlements enhance patient safety. Tort reform laws put patients at risk.
  • Neither “tort reforms” nor “caps on damages” lower insurance premiums for doctors.
  • Stripping away patients’ legal rights will not reduce health care costs and may actually increase them.

Finally, a case being litigated by our office underscores how serious and difficult our work is.

While I am unable to discuss the matter in detail, it involves a client who was horribly injured during a medical procedure some time ago. Since agreeing to represent the victim, we have devoted hundreds of hours and tens of thousands of dollars to trial prep and gone toe-to-toe and face-to-face with insurers, defense attorneys and health care providers determined to trivialize our client’s life-altering, lifelong injuries.

Whenever I look at the photos of this client or the hundreds of others we have represented over the years I am reminded of the fact that “frivolous” is the last word that can be used to describe what we do.

Two stories shine spotlight on dangers of preventable medical errors

Chart showing medical errors as the third leading cause of death in the U.S.As lawyers who have represented hundreds of medical malpractice victims, we’re acutely aware of the dangers associated with the hundreds of thousands of preventable medical errors committed by health care professionals in the United States each year. That’s why our interest was piqued by two troubling articles that recently appeared in the Washington Post.

The first:  A dog bite sent him to the ER. A cascade of missteps nearly killed him, tells the story of 50-year-old David Krall who nearly died after doctors and ER personnel failed to realize that a life-threatening infection caused by a dog bite was spreading throughout his body. The cavalcade of errors that nearly killed the previously healthy industrial engineer from Lexington, Kentucky included unconscionably long waits for treatment in the ER, doctors’ refusal to recognize that the dog bite was the source of the infection, and misdiagnosis of the infection itself.

As a result of the mistakes, Mr. Krall spent 51 days in the hospital, lost portions of several toes, and is now deaf in one ear.

One reason he almost lost his life: doctors refused to listen when his wife and family friend who is a physiologist insisted that the dog bite was the source of the infection that was rampaging through Mr. Krall’s body. Here’s how the Post  described the situation:

After David was moved to the intensive care unit, Becky said, she repeatedly mentioned the dog bite as a possible cause of his infection. But she said doctors told her they didn’t think the bite was relevant. They were fairly certain that David’s meningitis infection was caused by a bacteria known as Neisseria meningitidis . How he had acquired it was a mystery.

Becky grew increasingly insistent after a physiologist friend found articles in medical journals about a rare bacterium transmitted in dog saliva, Capnocytophaga canimorsus , which causes potentially fatal infections, particularly in people without spleens.

Forster, who was called in on the sixth of David’s 51-day hospitalization, recalled that the ICU team “mentioned the dog bite as an aside. They said the wound didn’t look bad, and they weren’t focused on it.”

Things weren’t helped when ER doctors at the University of Kentucky’s Albert B. Chandler Hospital failed to treat him even though his blood pressure was extremely low and his temperature had climbed to 102.9. Krall and his wife Becky decided to go home at 12:30 A.M. after waiting more than five hours for the hospital’s staff to address his symptoms. When they came back the next morning Krall was near death.

You may read the entire, harrowing story here. 

Our second tale of medical woe involves one of the scariest of all medical nightmares: a surgical mistake that results in the removal of a perfectly healthy body part. In our second story: He underwent surgery to remove his right testicle. When he woke up, his left one was missing., reporter Amy Wang recounts the trials and tribulations of Steven Haines, who visited his urologist complaining of persistent pain in his right testicle. Here’s Ms. Wang’s description of events:

An ultrasound revealed that the testicle had atrophied, with scarring and damage from a previous injury, according to court documents. And so the doctor scheduled an orchiectomy — or surgical removal of the testicle — to help alleviate Hanes’s pain.

The good news? The orchiectomy was successful.

The bad news? The doctor removed the wrong testicle during the surgery.“At this point it appeared that the left testicle and cord may actually have been removed instead of the right one,” the surgeon, Valley Spencer Long, wrote in a postoperative report, according to court records.

No, I’m not kidding and no, it’s not at all funny. To the contrary, what happened to Mr. Hanes is tragic, inexplicable and inexcusable. And while rare, such mistakes do happen. A 2011 Post roundup of such cases included doctors in Minneapolis removing a healthy kidney from a man with kidney cancer and an ophthalmologist in Portland, Ore., operating on the wrong eye of a 4-year-old boy.

“Few medical errors are as vivid and terrifying as those that involve patients who have undergone surgery on the wrong body part, undergone the incorrect procedure, or had a procedure intended for another patient,” the U.S. Department of Health and Human Services says. In the medical community, “wrong-site, wrong-procedure, wrong-patient errors” are known as WSPEs, and they are so egregious and usually preventable that the federal health department deems them “never events” — “errors that should never occur and indicate serious underlying safety problems.”

Today, Mr. Hanes, who was severely traumatized by the incident, is living with the pain in his right testicle for two reasons: first because he is understandably fearful of undergoing another surgery, and, second, because if the remaining testicle is removed he will be forced to undergo testosterone replacement therapy for the rest of his life.

You may read Mr. Hanes’ story here.

Finally, if you are hurt or a member of your family is injured or killed because a medical professional made a mistake, please contact the experienced legal team at Betras, Kopp & Harshman and set up a no-cost consultation as soon as you can. We will use our experience to examine your case, provide our best advice, and do all we can to help you secure justice and the financial settlement you and your loved ones need and deserve.