The case was settled against the nurse. The defendant obstetrician claimed the patient could have reversal of the tubal ligation or could have more children with in vitro fertilization. A $490,000 settlement was reached in this Virginia case.

Source: Lewis Laska, Editor, Medical Malpractice Verdicts, Settlements and Experts, November 2010, page 27

Comments: Nurses are well informed that surgical procedures require consents. It is common practice to add a tubal ligation to a cesarean section consent form when the woman desires sterilization. The surgical nurses verifies that the consent is signed and witnessed. Witnessing the signature means that the patient appears to understand what she is signing. Nurses can perform this function. Surgeons also commonly obtain informed consent and witness the form.

This interesting Virginia case hinged on the fleeting memories of healthcare workers involved in one surgical procedure among hundreds or thousands performed annually. The absence of the informed consent made it impossible for the nurse to prove the patient requested a sterilization. The obstetrician relied on the nurse to make sure that the consent was signed. However, the obstetrician’s office records showed the patient did not want a tubal ligation and yet he or she went ahead in a rote way and performed the unwanted surgery. Reversal of tubal ligation is not often successful, and in vitro fertilization is a complicated undertaking that is often not covered by insurance policies. Both the nurse and the obstetrician fell through the holes in the safety net of health care.

Patricia Iyer MSN RN LNCC is a former medical surgical nurse who witnessed many consents of patients over the years. She is president of Med League Support Services, Inc.

“Not only does Coke need to change it, but when other companies hear the verdict they will take a look at their policies,” he said. Coca-Cola’s cellphone policy requires the use of a hands-free device when operating a vehicle, according to a statement released by the company. The company said there is no connection between Chatman-­Wilson’s injuries and the damages awarded, according to the statement.

Henry said the ­company allowed its ­employees to use a ­cellphone for ­business whenever ­necessary, but failed to ­inform them about the risks ­associated with talking on a ­cellphone while driving.

Araceli Vanessa ­Cabral, 30, the driver of the truck, testified that if she knew about the risks she ­never would have used a ­cellphone while driving, Henry said. The attorneys said the $10 million in punitive damages was the jury’s way of telling Coca-Cola Enterprises that it needs to change its cellphone policy. “We really need better rules, regulations and laws,” Henry said, “and corporations need to have a no-cellphone policy while operating a vehicle.”

Coca-Cola said it plans to appeal, according to the statement.

Source: http://www.kiiitv.com/story/18151063/multi-million-dollar-verdict-against-coca-cola

Researchers reviewed 39 published studies to determine whether the academic changeover when residents graduate and interns start their training actually affects patient outcomes, as many have suspected for years. They found that mortality rates did increase between 8 and 24 percent in July, according to a Time blog post.

“The ‘July Effect’ occurs when these experienced physicians are replaced by new trainees who have little clinical experience, may be inadequately supervised in their new roles, and do not yet have a working knowledge of the hospital system.
Read more: July effect: New interns ‘perfect storm’ for higher mortality rates -

When I teach experienced registered nurses, they acknowledge that they form part of the safety net under the inexperienced physicians. Nurses have an ethical obligation to speak up and to protect the patient from the actions of physicians that put the patient at risk. While nurses do not always know when an inexperienced physician is making a bad decision, they can often pick up hesitancy, bravado, insecurity, and outright wrong decisions. Nurses work as part of a healthcare team that must function well together to save lives.

In the meantime, I recommend trying to stay out of a teaching hospital in July, unless there are no reasonable alternatives.

Pat Iyer is president of Med League.

What is the risk to the patients of having a healthcare provider on staff who is taking drugs? Our first duty is to make sure the patient is safe. Is the professional too impaired to make safe decisions and judgments? One of my colleagues, a now recovered substance abuser, told me of a time she took Demerol 700 mg and passed out in the nursing unit. She was a nurse manager at the time and luckily was not involved in direct patient care. This amount of Demerol would kill someone else without a tolerance to it.

Statistics about the prevalence of substance abuse in healthcare workers are hard to come by. The National Council of State Boards of Nursing released numbers that showed that 25% of the approximately 115,000 disciplinary actions in 2006 involved nurses with substance abuse. These figures do not include nurses who entered substance abuse programs to avoid being disciplined. (1)

• Should an employer fire a nurse with a substance abuse problem?
• Require him or her to enter treatment?
• Remove the employee from patient care areas with access to medications?
• Provide strict supervision of the nurse?
• Require unscheduled drug testing?
• Have a drug-free work place program in place?
• Ask potential employees if they have ever been fired, and why?
• Avoid making judgments about an employee without an admission of drug use or a positive drug test?

The answer to most if not all of these questions is yes. The employer’s first responsibility is to the patients; to protect them from impaired or incompetent employees. These employees create troubling issues within the work environment.

(1) Healing versus safety, HealthLeaders, November 2009, 63

Patricia Iyer MSN RN LNCC is president of Med League.

Look upon talking to the exhibitors as a way to identify people with whom you would like to work. Observe how the exhibitor interacts with you, shows interest or displays knowledge of the field they represent.

Expect that the exhibitor is going to try to “qualify” you by asking about the type of law you practice or your position in the firm. The exhibitor has limited amount of time to spend with each visitor and may need to screen out those people who are likely prospects versus those who the exhibitor has no way to help.

Wear your conference badge in a spot that makes it easy for others to read. A badge tucked into your belt requires people to drop their eyes below your waist. This is awkward at best. Exhibitors love to see your name and city so they can connect with you.

It is considered poor booth etiquette for exhibitors to eat at their booth. They may join you at tables set up within the exhibit area or in classrooms because they should not be eating at their booth. (It is hard to talk to a prospect with a full mouth.)

Expect exhibitors to be alert and ready to talk to you. Those who become involved in their cell phones or computers discourage interaction.

Bring your cards with you when you get ready to attend a conference. You’ll want to use them to network with attorneys, put cards in a bowel for a drawing, or give to exhibitors who request them. We have blank cards created for your use because we have seen many attorneys forget to replenish their wallets before a conference.

Exhibitors place giveaways on tables to attract the attention of an attorney. They are there to take – in moderation. Some are much more expensive than others. If you bring enough markers home to put on the desk of every one of your dozens of employees, the exhibitor has that many fewer to share with other attorneys. Similarly, it is considered poor form to talk on a cell phone while simultaneously picking through the exhibitor’s giveaways, and deny the exhibitor a chance to connect with you.

We see attorneys carrying bulging bags of material they have collected from exhibitors. We hope they’ll read the material. We’ve spent a lot of money for printing and in assembly of brochures, folders and so on. If you are going to throw out what does not interest you, please do it in your hotel room and not in our sight.

A long day of exhibiting, which may start at 7:30 AM and last until 6 PM or longer is hard on the feet, back, and brain. Most of the time is spent standing, to be ready to greet you. Some exhibitors see hundreds of people at a conference and may not remember the details of a conversation they had with you hours and hundreds of people before. This does not mean that you are any less important, but you are part of the stimuli of the day. One of my attorney clients who tried exhibiting quickly realized it was a lot harder that he realized.

Give yourself enough time to walk through the exhibit area. A conversation with an exhibitor may open up a whole new way to looking at how you handle cases, connect you with someone who is the right match to assist you with your cases, and create lasting relationships.

Patricia Iyer is president of Med League. She has been exhibiting her company’s services at attorney conferences since 1995. It has been an effective way to build her business. Read a humorous story of Pat’s first booth experience.

“Mom,” Carol said carefully, “You are in the hospital. You broke your hip. You had surgery yesterday to replace your hip joint. The people you hear outside the door are hospital employees. This isn’t the family reunion at my house. That was two months ago.”

“But I just want to be with the family. I don’t see what harm it will cause if I go outside to be with the family for just a little while.”

The next time she saw Mildred’s doctor, Carol said, “She’s irrational. She keeps trying to fold the sheet that she’s lying under to put it away ‘upstairs in the linen closet.’ She hasn’t lived any place with an upstairs for seven years. She thinks the television set is a window. She thinks it’s night all the time because the TV is dark, since it’s turned off. What’s happening?”

“Oh, don’t worry,” the doctor assured her. “That’s completely normal. It happens to everybody. It’s disorienting to be in the hospital. As soon as we can discharge her and get her back into a more familiar setting, she’ll be fine.”

Researcher Dr. Wes Ely at Vanderbilt University has created the website www.icudelirium.org. On it, he explains that hospital patients often lose touch with reality. This altered mental state is called delirium. Mildred’s doctor was right that this experience is very common. However, he was mistaken in believing that people return to their normal state afterwards.

Research shows that people who experience delirium in the hospital are more likely to develop other medical complications, to be less able to take care of themselves once they get out of the hospital, to have trouble thinking clearly, to land in a nursing home, and to die within six months.

Laura Landro reported in a Wall Street Journal article, “50% to 80% of people who leave the ICU later suffer from long-term cognitive impairment that appears to be related to how long they were delirious in the hospital.” She quotes Dr. Ely as saying that these memory and thinking problems may make it impossible for people to keep their jobs. They may feel “‘like their brain is swimming in molasses.’”

Three of the biggest risk factors that determine whether people will become delirious are:
• How old they are. About 60% of patients age 40-60 develop delirium. The risk rises rapidly, and by age 85, about 85% of patients develop delirium.
• How sick they are. Sicker patients are more likely to develop delirium.
• Whether they are given drugs called benzodiazepines. People who are given one of these, midazolam, are three times as likely to become delirious. Another, lorazepam, is almost certain to cause delirium at some doses.

It is best if delirium can be prevented. Failing that, the harm patients suffer can be reduced if the delirium is short-lived. However, Dr. Ely reports, delirium “remains unrecognized in 66% to 84% of patients whether they be in the ICU, hospital ward, or emergency department.” If it isn’t recognized, it is unlikely that steps will be taken to halt it.

One worksheet that hospital staff might use to figure out if a patient is delirious includes simple questions that doctors and nurses ask the patient. An example is, “Will a stone float on water?” Using a worksheet like this, it takes less than 30 seconds to tell if someone is delirious.

Some of the steps that doctors and nurses can take to help nip delirium in the bud are:
• Bring the patient’s blood sugar and electrolytes back to appropriate levels
• Check for and treat infections
• Reduce the dose and frequency of drugs that sedate them
• Remove restraints
• Get patients up and moving around as soon as possible
• Have lights on during the day and dimmed at night
• Encourage interaction with family

Guest blogger Elizabeth L. Bewley is President & CEO of Pario Health Institute and the author of Killer Cure: Why health care is the second leading cause of death in America and how to ensure that it’s not yours. She is also the author of a weekly newspaper column called “The Good Patient.” Elizabeth is one of the regular columnists for Avoid Medical Errors magazine at www.avoidmedicalerrors.com.

A nursing home sounded the Code Grey alarm for “missing resident” at about 4 PM when a resident could not be found for dinner. No one had remembered seeing the resident since approximately 2 PM. Protocol was followed but the resident could not be found. In the midst of the search, the facility elevator locked between floors and they waited for an elevator mechanic. By 7 PM, staff were hearing a banging sound. Someone said, “It’s coming from the elevator”. The elevator mechanic brought the car to the first floor, opened the door and found the missing resident. She had wandered in on her way to 2 PM bingo, then the elevator locked. She sat down and fell asleep. When she awoke, she was hungry and knocked on the door to get out. She suffered no permanent or serious injury.

One cold morning in February, the security officer at a center city nursing home opened the door for a woman who worked at a nearby newspaper. She had with her one of the male residents of the facility who was wearing the woman’s coat over a hospital-type gown, a diaper, no shoes or socks and a facility bracelet with his name on it. She stated that when she arrived at work that morning, she found him huddled in the corner of the building entryway. When the security guard had let the cook in earlier, he had used the rest room right afterward and left the lobby area unattended. Apparently the lock on the front door had not engaged as the cook entered, and when the resident got off the elevator, he was able to go right out the door to the street. He had wandered across the street and around the corner to the sheltered doorway of the newspaper office where he was found. Although he waited on the doorstep possibly for an hour, he suffered no permanent or serious injury.

Several years ago in January, a woman with dementia and several other health issues was taken to a nursing home by her children because they were unable to care for her any more at home. The new resident was very unhappy there, refused to eat, and frequently yelled that she wanted to go home. Several days after she was admitted, she went missing at bedtime and could not be found. The facility initiated its elopement protocol and exhausted all recovery efforts unsuccessfully. At 10 AM the next morning, the woman’s body was found in the dumpster of a shopping center near the nursing home. She had left the facility with the visitors, wandered to a nearby mall and climbed up boxes to get into the dumpster. She died from exposure to the elements and dehydration.

The elopement of a resident from a long term care facility is one of the ”never events” that nursing homes dread. The term, first coined by Dr. Ken Kizer in 2001, was used when discussing serious medical errors which are clearly identifiable, measurable and preventable, including fall with injury, pressure ulcer, dehydration, constipation and elopement. No facility wants one of its residents to successfully wander or elope from its safe confines, yet all should be prepared with an emergency protocol to initiate should it occur and a prevention policy to reduce the number of occurrences.

Emergency response protocol for elopement usually includes first searching every conceivable space of the unit (behind doors and curtains, under beds, in showers, closets, and cabinets). Then the search extends to the entire building, and then the neighborhood. Generally, administrators and the police are notified. One person is assigned to call all family members/friends the resident may contact and also all local hospitals with a description of resident. It is a good idea to fax a recent picture to hospitals if possible. If the search must extend to the neighborhood, teams are assigned to grids on a map and they should have a picture of the resident and a cell phone to check in every 15 minutes.

There are numerous interventions a facility can implement to prevent resident elopement. Here are some of them:
• Perform elopement assessment on each resident who is new, readmitted, experiences any significant change, and regularly throughout the year, e.g. quarterly.
• Have pictures taken of all residents and a photo of known wanderers/elopers. Place these on each unit and at doors to the outside, and large gathering spaces.
• Don’t place residents at high risk for elopement on the first floor of the building.
• Put wallpaper over doors that matches walls so the door is not obvious as an exit.
• Paint a black circle (hole) on the floor in front of emergency doors to deter crossing.
• Provide planned activities for shift change and close of visiting hours, when a high number of people are moving in and out of doors. The activities will take place in rooms away from the doors.
• Provide some identification label or badge to visitors that must be turned in before they are able to leave the facility.
• During a “Code Grey”, call all elevators down to the first floor and check them.
• Provide supervised moderate exercise for potential elopers to discourage wandering.
• Some facilities have a locked unit for extreme cases.
• Perform visual face to face checks every 15-30 minutes on known elopers when they are agitated.
• Provide regular “drills” like fire drills, to all shifts, to rehearse staff and to sharpen their response time and understanding of emergency procedures. A former president of the American Medical Directors Association shared how he did this. He took a resident into his office and closed the door. Then he waited to see how long it would take for the staff to realize the resident was missing. In some cases, it was hours.
• Alert staff to closely monitor stairway entrances and doors to the outside (including loading docks) during fire drills when alarms may be off. Do a head count after every emergency “drill.”
• Anticipate physical needs (pain management, food, toileting) of dementia residents who are able to move about on their own to deter purposeful wandering.

Here are some resources for further information and statistics on elopement:
(1) http://www.portal.state.pa.us/portal/server.pt/community/hospital/14149/chapter_51_questions_and_answers/558509
(2) https:www.guideone.com/SafeeyResources/SLC/…cs_elopement02 Resident elopement and case study
(3) www.nccdp.org/wandering.htm
(4) www.ncbi.nim.hig.gov/pubmed/15633945

Sarah Jean Fisher MSN, RN-BC, BA is a nursing home expert who performs expert witness reviews for Med League.

From a medical and legal perspective, here are some of the issues.

1.Was the event sudden? Did the driver become suddenly incapacitated? Last year when I taught a program in Miami for nursing home attorneys, I talked to an attorney who told me of a client of his who has an uncontrolled seizure disorder. This driver had been in a car crash. That had not stopped him from driving again. He did not become suddenly incapacitated – he knew of his condition.
2. Could the driver have foreseen this would happen? For example, if the driver took a strong narcotic for the first time and got behind the wheel to drive, did he know or should he have been warned that this was ill advised?
3. Was the driver unable to control his or her motor vehicle because of the incapacity?
4. Did the collision result from a loss of control resulting from the sudden medical incapacity? A person with fainting episodes could get into an accident because of circumstances unrelated to the history of fainting.

If the driver survived, testimony about his behavior immediately before after an accident could be important. Did he look alert and unimpaired? A careful review of the medical records, particularly of treatment before the crash, will help to support or refute a claim of a medical condition that could result in a sudden medical emergency. The nurses at Med League have extensive experience reviewing medical records to look for details about a patient’s condition. Give us a call – we’re happy to help.

See David Kopstein, Defeat the “sudden medical emergency defense”, Trial, February 2009, page 24

Ms. Heinzerling was diagnosed with lung cancer in 1997 and died 10 months later. Larry Heinzerling, her husband, alleged that her medical providers were negligent for failing to diagnose the cancer sooner.
I met Larry Heinzerling when he came to the office of Gerald Stockman when I was consulting with him on his personal injury and medical malpractice cases. In the course of my consulting with Gerry, I explained the role of a nurse in summarizing medical records to help the jury understand symptoms and treatment. Prior to (and after) the Heinzerling case, I testified on several cases in this capacity for other attorneys. Gerry listened to my ideas, filed them away, and retained a nurse to summarize the records.

The defense objected to the nurse’s role; Judge Sabatino heard the arguments and issued his opinion. He referred to the New Jersey Evidence Rule 1006 which states that:

The contents of voluminous writings or photographs which cannot be conveniently examined in court may be presented by a qualified witness in the form of a chart, summary, or calculation. The originals or duplicates shall be made available for examination or copying or both, by other parties at a reasonable time and place. The judge may order that they be produced to court.

Judge Sabatino cited several other cases and rules of evidence. He found that live testimony by the nurse would be more readily understood and accessed by a lay jury than dry written materials. He denied the defendants’ motion in limine to bar the nurse’s testimony. This case subsequently settled.
The Heinzerling decision provided a substantial support for other attorneys who retain nurses to summarize medical records. It has made it easier to introduce this type of testimony, and it has made it easier for juries to understand complex medical details. The nurse acts as the interpretor of the patient’s experiences as documented in the medical record. The nurse gives the patient a voice.

Pat Iyer is president of Med League. She has reviewed several hundred cases for the purposes of explaining the medical care. Jane Heron of Med League also provides these types of summaries.

359 NJ Super, 1: 818 A.2d 345; 2002 NJ Super, Lexus 531

The consequences of incorrect sponge counts:
• Panic in the operating room when the count discrepancy is announced
• Urgency to find the sponge to resolve the issue and keep the schedule on time
• Possible development of pain and adhesions from retained sponges
• Litigation for retained sponges, with cases frequently being won by plaintiffs: “get out your checkbook”
• Loss of reimbursement for care related to removing the sponge
• Loss of reputation when the public becomes aware of the facility’s problem of retained items (Centers for Medicare and Medicaid released the names in 2011)

Curing the problem
A cognitive psychologist from Minnesota, Kathleen Harder, is credited with identifying teamwork techniques to tackle the problem. These include:
1. Having a preoperative briefing during which members of the surgical team say hello to each other and exchange names
2. Counting the sponges before the case begins, rather than under the pressure at the beginning of the case.
3. Not allowing surgeons to interrupt a counting process.
4. Displaying counts on a wall-mounted board where all can see it.
5. Requiring the surgeon to announce he or she has tucked a sponge under an organ (which is noted on the board).
6. Counting performed by two people standing side by side, focused only on counting.
7. Organizing surgical items the same way in every operating room, counting them in the same order every time.

Does this work?
When University of Minnesota Medical Center and Christina Care Health System implemented these techniques, they reduced retained surgical items to zero for 154,000 surgeries.

Read ”Sponges: Beyond Counting”, HealthLeaders June 2011, page 58-59 for more information.