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The Risks of Participating in Clinical Trials

Clinical trials are a fundamental part of the development of new medicines and other products, like medical devices. Before a product is tested in a clinical trial in the United States it is required to undergo extensive safety testing to prove that it doesn’t pose a risk of toxicity or other hazards to patients in the trial. Safety standards for clinical trials are determined and enforced by the U.S. Food and Drug Administration. One hopes that the standards protect participants from being placed at an undue risk of harm, but problems can still happen. There are several sources of risk related to participating in a clinical trial:

  • A participant may not receive any active medicines. Patients with hard-to-treat illnesses may view clinical trials as an option of last resort, potentially offering cures that aren’t otherwise available on the market. For patients who hope to receive benefits from an experimental medicine, it can be disappointing to later learn that instead of being given the new medicine, the patient was instead given a placebo as part of the experimental control group. Because a control group is a necessary part of the scientific process, patients should know that this is a risk of being involved in any clinical trial.
  • The product may turn out to be dangerous. The object of a clinical trial is to answer specific scientific questions about the tested product, such as whether it is effective in reducing certain indicators related to a specific disease. Researchers are required by law to disclose all known risks associated with a given product as part of a participant giving informed consent to participate. But researchers may not know all the potential risks of a new product. Some individuals may react badly to the product, even facing long-term illness or death as a consequence of the product itself or its interaction with other chemicals in the patient’s body.
  • Researcher negligence. The pressure on businesses to reach favorable outcomes in trials is significant. Researchers may make serious mistakes or may even commit acts of fraud in order to speed up or alter the results of a study. In some cases, a researcher’s bad behavior could lead to a patient’s injury.

Before participating in any clinical trials it’s important to first consult with your doctor and take complete stock of the risks. Someone who suffers a serious injury because of a clinical trial may have the option of filing a personal injury lawsuit to recover compensation for the costs associated with treatment and recovery.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. If you or a loved one has been injured in a clinical trial please contact us today for a free attorney consultation about your options. Call us at 702-388-4476 or reach us through our contact page.

Protecting Your Private Health Information

Keeping medical information private is an important concern. Unauthorized disclosures of health information can have serious consequences for patients. These consequences range from damaged relationships with friends and family to disrupted careers. Individuals may have good reason for keeping their treatment for an illness, like a sexually transmitted disease or drug addiction, out of view from unsupportive family members. Employers who inadvertently learn about a job candidate’s health situation might decide to hire someone else. To protect patients from consequences like these, health privacy laws provide robust tools for them to protect their privacy rights.

The Privacy Rule under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) restricts disclosures of individually identifiable health information by certain covered entities. These include most health care providers, providers of insurance and other forms of health benefits, and intermediary organizations that process health data for other businesses. The law protects information in a patient’s medical file, as well as the content of communications (whether oral, telephonic, or electronic), and billing information, among other things. Covered entities are required to adopt policies to protect information that falls within the law’s scope. Under HIPAA, disclosures may only be made under certain limited circumstances, primarily related to the patient’s care or to facilitate bill payments.

Someone who has had their HIPAA rights violated can file complaints against the offending organization with the U.S. Department of Health & Human Services. HIPAA protects patients who file complaints from retaliation. Note that although this administrative process may result in an examination of the offender’s practices, HIPAA doesn’t provide for a private cause of action, so the affected patient cannot sue a health care provider for HIPAA violations.

Note that the scope of “covered entities” under HIPAA does not capture employers unless they are also administering a health plan, such as administering a workers’ compensation program. Employers may end up with the health information of a job candidate or employee outside of the health plan context. For example, an employee may disclose a health condition to a manager to let the manager know about a job limitation the employee has. An employee may disclose a pregnancy in anticipation of filing a Family Medical Leave Act claim. Or a candidate may submit information through the pre-employment screening process, including the results of drug tests. Each of these circumstances may fall under a different set of standards than HIPAA. In general, employers are restricted in how they can use health information when making job-related decisions and may be subject to a claim of unlawful discrimination in some circumstances.

When a health privacy violation leads to serious consequences, it can be helpful to talk to an attorney about your options for seeking compensation. The law firm of Greenman Goldberg Raby Martinez represents clients in the Las Vegas area in cases involving personal injury, workers’ compensation, and other matters. If you think your health privacy rights have been violated, please contact us today for a free attorney consultation.  Call us today at 702-388-4476 or contact us through our website.

Seeking Compensation for a Surgeon’s Mistakes

A surgery patient places tremendous trust in the doctors and other medical professionals who complete the operation. Most patients lack the necessary training to understand what’s happening during a surgery. If the patient is sedated or put under general anesthesia, he or she may not know what happened during the surgery. When something goes wrong with a surgery, the patient may feel powerless to recover compensation from the physician, the hospital, or other responsible parties. But there are legal tools available to help patients recover compensation when mistakes lead to serious complications.

In Nevada, surgical mistakes typically fall under the professional negligence cause of action. Nevada’s law of professional negligence specifically contemplates errors made by health care professionals. It therefore can apply not only to the lead surgeon, but also to other professionals who caused, or may have caused, errors during a surgery. This may include assistants, nurses, anesthesiologists, or other licensed medical professionals. If the individual or individuals who bear fault isn’t clear to the patient, for example because the error was made while the patient was unconscious, it may be appropriate to bring everyone involved in the surgery into the case to determine who bears responsibility.

The basic rule of a professional negligence case is that the plaintiff must prove that the plaintiff’s injury was caused by the defendant’s failure to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced professionals. Proving the elements of professional negligence can be a challenge. Among other things, a plaintiff must submit a sworn affidavit of a qualified professional who can confirm that, in the opinion of that professional, the defendant acted negligently.

To get an expert’s opinion in support of a plaintiff’s case, and to make the case more generally, the plaintiff’s attorneys typically need to first gather extensive information about the plaintiff’s injury, the surgery, and surrounding facts. Sometimes this requires difficult work of forcing a hospital or clinic to disclose records that may be adverse to their own position. Getting records like surgery videos is an important step in developing a case. Depositions of the people involved likely will also be required.

In dealing with a professional negligence case, a plaintiff can gain significant benefits from working with a law firm that treats the client with respect and compassion. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in professional negligence cases. Contact us today for a free attorney consultation about your case. We can be reached at 702-388-4476 or through our site.

Common Medical Errors and the Law

Anyone who has been in a hospital for any length of time knows that there are a lot of opportunities for mistakes. The medical services industry puts tremendous pressures on the professionals who work within it. Long hours, chaotic environments, a constant stream of new patients, and a challenging regulatory regime together present a constant challenge for doctors, nurses, and other caregivers. The fact that problems are common is little comfort for patients who are injured as a consequence of mistakes.

Efforts to quantify and mitigate medical errors have been ongoing for many decades. There are numerous challenges to coming to grips with them, beginning with constant change in the medical industry. Simply defining what an “error” is has been challenging for the industry as a whole. Some of the most common sources of errors include:

  • Problems with diagnosis: Interpreting a patient’s symptoms incorrectly can lead to improper administration of unnecessary treatments, while leaving the real problem unresolved. Or a patient’s condition may be correctly diagnosed but its severity underestimated.
  • Drug mistakes. Medications are linked to a wide variety of healthcare mistakes. Over- or underdosages, severe reactions, incorrect administration, and unmanaged drug interactivity are just a few examples of drug-related mistakes that happen regularly.
  • Infections. Hospitals work hard to keep their environments clean, but in a context where many people are ill an infection can be difficult to avoid.
  • Inadequate clinical care. Bed sores, blood clots, and other forms of preventable illness associated with long bed stays are examples of errors caused by an inadequate patient-care process.

Applicable legal standards sometimes leave considerable room for interpretation about what an error is. Many types of error will fall within the scope of professional negligence. Professional negligence applies to licensed medical professionals, like doctors, nurses, and dentists. To be liable for professional negligence the defendant must have failed to use reasonable care, skill, or knowledge in treating the patient.

The challenge is that “reasonable care” can be a moving target. The patient’s age and health, the specific facts of the patient’s condition, and the defendant’s subjective qualifications (years of experience, training, and so forth) are all factors that define what reasonable care is in the circumstances. Importantly, the plaintiff must provide a sworn affidavit signed by a qualified professional that confirms the signatory’s opinion that the defendant failed to provide reasonable care.

The attorneys at Greenman Goldberg Raby Martinez have represented Nevada clients in medical malpractice cases for over 45 years. If you have been injured by a medical error contact us today to learn about our legal options. For a free attorney consultation call 702-388-4476 or send us a request on our contact page.

Who Bears Responsibility for Prescription Drug Overdoses

A drug overdose can cause severe injuries and even death. The National Institute of Health’s National Institute on Drug Abuse reports that deaths from opioid-based prescription pain medications are by far the leading cause of drug-related overdose deaths in the United States. Opioids are not the only class of prescription medication that can lead to abuse and overdose. Medications to treat anxiety and depression, sleep disorders, behavioral problems, and others can also be misused. The specific effects of overdose vary by drug, but can include severe consequences like coma, tremors, or long-term injuries to the brain and other organs.

Prescription drug overdoses are a complex problem with many different causes. The individual who suffers an overdose may be a habitual abuser, but overdoses can also happen due to a mistake, such as if someone forgets that they’ve already taken a dose and they keep taking more. An overdose may also result from errors made by the prescribing doctor or the pharmacy supplying the medication.

  • Doctors. Under Nevada law a doctor must exercise reasonable care, skill, or knowledge while treating a patient. Failing to do so is grounds for a professional negligence lawsuit against the doctor. Doctors have many legitimate reasons for prescribing drugs that can have severe negative effects if taken in large doses. Professional negligence can come into play if a doctor fails to act on signs that the patient is abusing the drug or is likely to misuse it.
  • Pharmacies. The role of dispensing pharmacies in the opioid epidemic has received a great deal of attention. Pharmacies follow procedures to ensure that the prescriptions they fill are lawful and accurate. If a pharmacist fails to follow these procedures he or she may be committing a crime as well as placing the patient in danger. In rare cases the pharmacist may also make a mistake, like supplying the wrong dosage, that could lead to overdose.
  • Caregivers. If someone other than the patient is administering medications that person may bear legal responsibility for ensuring that the dosage is correct. Patients who receive home care or who live in residential care facilities may be given incorrect dosages and suffer harm as a consequence.
  • The drug’s manufacturer. In some cases the manufacturer of a drug may bear liability for a patient’s overdose. Among other things, a manufacturer must warn patients about potential side effects of using its products. If a warning label fails to disclose important risks the labeling may be inadequate. The manufacturer may bear responsibility in other ways as well.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area in cases involving personal injury and professional negligence. If you or a loved one has suffered a drug overdose and you have questions about your legal options, please reach out to us today for a free attorney consultation. We can be reached at 702-388-4476 or through our website.

Overmedication in Nursing Homes

Placing a loved one into the care of a residential nursing facility involves a high degree of trust. Caregivers in nursing homes, from unlicensed assistants to the licensed nurses and doctors who oversee medical services, are placed in a challenging position of managing the wellbeing of people who cannot fully care for themselves. Dispensing medication is a key function of nursing homes. It can also be a source of problems. Overmedication can be a consequence of abuse, where the dispensing employee is deliberately trying to harm the patient. But it can also arise where a facility’s staff overuses medication to keep residents under control.

Professional negligence in a nursing home context

Given the complex challenges involved in caring for especially infirm patients, it’s easy to understand why caregivers can make choices that, after the fact, appear to have been wrong. The nursing home context may on the one hand give some leeway for professionals to administer medication for palliative purposes. But the risks in the nursing home context only heighten the importance of good practices and careful medication management.

Overmedication could be a sign of professional negligence. In Nevada, professional negligence is defined as “the failure of a provider of health care, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” NRS 41A.015. The definition of “provider of health care” for professional negligence purposes is limited to (among other things) licensed physicians and nurses, as well as licensed hospitals, clinics, and other organizations that employ such professionals. It’s worth noting that the operator of a nursing home may not fall under this definition if it has “outsourced” its medical care. Instead, the licensed professionals overseeing and administering care, as well as their employer, will need to be identified.

The complex conditions in a nursing home may make a professional negligence claim more difficult than might be the case in an ordinary case of medical malpractice (i.e., objects left in a patient’s body after surgery). The decisions made in connection with a resident’s care will be measured according to a “reasonableness” standard, which leaves ample room for professionals to use their judgment when doing things like administering medicine. To successfully sue, the plaintiff will need to gather supporting facts to show that the nursing home staff administered medications in a way that was not reasonable under the circumstances. For example, it may be unreasonable to keep a patient continuously sedated for the convenience of the staff rather than because the patient is especially prone to risky behavior.

When negligence turns into abuse

Unfortunately, abuse in nursing homes is more common than one would hope. Nevada law defines unlawful abuse as the willful and unjustified infliction of pain, injury, or mental anguish upon a victim who is 60 or older or is physically or mentally impaired. NRS 41.1395. If nursing home staff is intentionally overmedicating a patient not for professionally reasonable purposes but rather to deliberately cause the patient injury, an abuse claim may apply. A successful claim of abuse can recover double damages.

Cases involving overmedication will involve difficult questions of proof. Blood testing or an autopsy may reveal that the patient had toxic levels of medication in their system. However, the question is not just whether too much medicine was administered, but whether the medicine was justified under the circumstances. Once again the professional judgment of the caregivers will be carefully examined. Perhaps the patient needed to be perpetually sedated due to a tendency toward self-harm. On the other hand, evidence like statements about a desire to hurt patients could shift the analysis the other way.

Call a Las Vegas personal injury lawyer to discuss your case

If you are concerned that your loved one may have suffered neglect or abuse in a nursing home it’s essential to speak to an attorney as soon as possible. Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area recover compensation in personal injury cases for over 45 years. For a free attorney consultation call us at 702-388-4476 or contact us through our website.

Alternative Medicine and Professional Negligence

“Alternative medicine” is a term encompassing a loosely defined collection of medical and pseudo-medical approaches to solving health problems. It includes familiar treatments like chiropractic and acupuncture, as well as more obscure approaches using healing crystals and herbs. Therapies are labeled as “alternative” if they are not used by mainstream medical professionals. One reason a treatment can be labeled alternative is because its clinical effectiveness isn’t settled. Someone who is injured by an alternative medicine professional’s negligence may have legal recourse to recover compensation.

Nevada’s professional negligence statute covers some kinds of alternative medicine

Nevada law allows lawsuits against providers of health care for damages arising from an injury or death caused by the provider’s professional negligence (what used to be called “medical malpractice”). The definition of “provider of health care” captures some kinds of alternative medicine practitioners, but not all. It includes:

  • licensed physicians, optometrists, dentists, and other conventional health care providers
  • licensed psychologists
  • chiropractors
  • doctors of Oriental medicine licensed pursuant to NRS Chapter 634A to practice acupuncture, herbal medicine, and other practices regulated by the State Board of Oriental Medicine.

Provided that a health care provider falls within these categories, a professional negligence suit is the appropriate remedy for injuries they cause. Professional negligence claims are subject to special rules, such as a requirement that the plaintiff obtain an affidavit signed by another professional in the same or similar profession as the defendant who attests to the defendant’s negligence. Professional negligence lawsuits are subject to a cap on noneconomic damages.

Alternative medicine outside the scope of professional negligence

Some practitioners of alternative medicine practices are not recognized as “providers of health care” within the scope of Nevada’s professional negligence statute. In practice this may mean that injuries caused by such practitioners fall within conventional negligence. Because professional negligence statutes are designed to protect health care professionals from some kinds of liability, it’s to a plaintiff’s advantage if the defendant isn’t covered. The professional negligence statute’s damages cap and other technical requirements won’t apply.

Patients who are considering using the services of an alternative medicine practitioners should use caution. The practitioner’s insurance should be scrutinized with care. Patients should not sign contracts with liability waiver language without first understanding the risks involved in a procedure. A treatment involving healing crystals may involve little inherent risk, but a treatment using herbs or chemicals that fall outside recognized norms may cause serious injury. Some practitioners may be committing fraud, violating licensing laws, or exposing their patients to dangerous situations.

GGRM is a Las Vegas medical malpractice law firm

The attorneys at Greenman Goldberg Raby Martinez provide personal, attentive service to clients in the Las Vegas area. If you have been injured by an alternative medicine treatment and you would like to speak to an attorney about your legal options, please contact us for a free attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Cognitive Bias in Medical Diagnoses

Cognitive bias is a common characteristic of human psychology. The idea is that people like to be right, and will sometimes perceive information in a way that confirms their existing ideas about the state of things, when the objective truth may be something different. Cognitive bias can influence behavior in all sorts of circumstances, many of which pose little risk of harm. But when a medical diagnosis is made in reliance on perceptions that are clouded by cognitive bias the outcome for patients can be life threatening.

Cognitive bias in the medical profession is a known problem. The bias itself can come from many sources. A doctor may have a disposition against diagnosing serious illnesses and will prefer to diagnose milder alternatives: interpreting heart failure as indigestion. Or a doctor may concentrate on a specialty that unwittingly blocks out alternatives: a heart surgeon who recommends a pace maker for a patient with an endocrine imbalance.

People who tend to think in biased ways can learn to overcome them. Members of the medical profession have a high ethical obligation to recognize their own biases and adapt their diagnostic approaches to account for them. But to actively address a bias it’s first necessary to know about it and understand how it works. That can be difficult even for people who have a profound need to do it.

As a consequence, cognitive bias can introduce significant inaccuracies into medical diagnoses. At the point of treatment a patient should be on guard against signs that a particular approach is being taken not because it is the right one but because it is the one that the doctor prefers out of what may be an unconscious motive. Patients also need to be careful about avoiding cognitive biases of their own: it may be tempting to prefer the heartburn diagnosis, but if it means ignoring a blocked artery the risk of death quickly increases.

If a medical diagnosis leads to a patient’s serious injury or death the patient or the patient’s next of kin may have the option of suing for professional negligence. To prevail a professional negligence lawsuit must prove that the treating doctor failed to use reasonable care ordinarily used under similar circumstances by similarly trained and experienced providers of health care. NRS 41A.015. In the course of litigation it may be revealed that the misdiagnosis arose from bad judgement that might be traced back to an instance of cognitive bias. Expert testimony can be used to establish the extent to which the misdiagnosis was far enough out of the norm to constitute negligence.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in professional negligence cases. If you or a loved one has suffered harm as a consequence of medical misdiagnosis, please call us today for a free attorney consultation. We can be reached at 702-388-4476 or through our contact page.

Patient Advocates as Witnesses in Professional Negligence Lawsuits

People who are hospitalized with serious illnesses and injuries often can benefit from having an advocate—a family member, friend, or even a paid professional—who looks out for the patient’s interests. Advocate can help to improve patient care in a number of ways. They serve as intermediaries between hospital staff and the patient, helping to resolve confusion and answer questions that the patient may not be able to answer. They help the patient evaluate treatment options. And they keep an eye on how well the patient is being treated.

If a patient is injured during a hospital stay the advocate may also become an important witness in any ensuing litigation against the hospital or its doctors for professional negligence (a.k.a. medical malpractice). An advocate need not have medical training to offer essential insights into events leading to the patient’s injury. This is especially true if the patient is not capable of testifying to the facts of the case, for example because the patient has severe dementia.

For a patient advocate the focus of time in the hospital should naturally be on ensuring that the patient is getting the best care possible. Anticipating litigation isn’t the advocate’s job. But there are things advocates routinely do that can help attorneys should the need arise. Keeping good notes is a valuable step. Notes can record the treatment options that have been offered, diagnoses, medications, and so on. They can also include the names of the people involved in the patient’s care. Some of these details will be reflected in the hospital’s formal logs, but other details may slip through and only be available in the advocate’s notes.

If litigation becomes necessary the advocate’s role as a witness likely will focus on the facts surrounding the patient’s care. The advocate who has served as the patient’s eyes, ears, and voice during the treatment process now serves, in a sense, as the patient’s memory.  Who made decisions, and when? How did staff respond to emergencies? What questions were asked? Having access to answers like these from a witness who is not tied to the hospital or other defendants can be extremely valuable in developing a case.

An advocate isn’t going to be asked to give opinions about medical matters. A professional negligence claim often rests on failures by defendants to follow established protocols. The claims need to be backed up with affidavits and testimony from experts who are qualified to speak about the defendant’s specific field of practice. The advocate may be asked to help an expert witness analyze the case to determine if negligence has happened.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. We are happy to answer your questions about potential professional negligence in a hospital setting. Call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

A Marijuana Dispensary’s Liability for Negligent Sales

With the decriminalization of recreational marijuana in Nevada much of the conversation about the topic of marijuana use and sales has shifted to the nonmedical side of the business. But medical marijuana has been an important resource for patients who have been prescribed its use under Nevada’s 2001 law authorizing its use. Like a conventional pharmacy, a medical marijuana dispensary can make mistakes that can have serious consequences for patients.

Medical marijuana dispensaries are required to follow a range of protocols designed to prevent unauthorized sales and protect patients from improperly tested products:

  • Dispensaries may only sell to individuals holding valid medical marijuana cards issued by the Nevada Division of Public and Behavioral Health. The DPBH maintains an online registry of cardholders, meaning there is even less of an excuse for dispensaries that run afoul of this rule.
  • Nevada law requires dispensaries to have all of their products tested by an independent testing laboratory prior to their sale to patients. These labs are required to test every product (including edible products) for four things: (1) the concentration of active ingredients in the product, (2) the presence and identification of molds and fungus, (3) the composition of the product, and (4) the presence of chemicals, including pesticides and herbicides. NRS 453A.368.
  • Every product sold by a medical marijuana dispensary must be labeled with disclosures about the source of the marijuana used in the product, the product’s potency, and other information.

A well-run dispensary shouldn’t ever make obvious errors like dispensing to a patient who does not have a lawful medical marijuana card. But one can imagine various ways that a dispensary could make errors or, out of lack of caution or neglect, dispense the wrong product. A patient who is expecting a relatively low-dose product but instead receives a high potency one could experience overdose symptoms, including panic attacks, confusion, and increased heart attack risk.

When such mistakes occur the patient who is injured by them should contact a personal injury attorney as soon as possible. The personal injury attorney will need to have as much information as possible about the incident as well as the patient’ medical condition. The physician who issued the medical marijuana prescription will be an important resource in developing the case, in part because the patient may need to establish a “base line” against which the effects of the improperly dispensed product can be compared.

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. If you have been injured as a consequence of negligent actions by a marijuana dispensary, call us today for a free, confidential attorney consultation. We’re available at 702-388-4476 or contact us through our website.